FEDERAL COURT OF AUSTRALIA

Gardiner v Taungurung Land and Waters Council [2021] FCA 80

ORDERS

THE COURT DIRECTS THAT:

1.    The parties provide submissions on the question of the appropriate relief in light of the Court’s reasons for judgment, limited to 5 pages each, including submissions as to costs, and whether the question of relief should be determined on the papers or after a further oral hearing.

2.    The respondents each file and serve submissions, limited to 5 pages, by 4pm on 23 February 2021.

3.    The applicants file and serve submissions, limited to 5 pages, by 4pm on 9 March 2021.

4.    The respondents file and serve any submissions in reply, limited to 3 pages, by 4pm on 16 March 2021.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This is an application for judicial review of a decision by a delegate of the Native Title Registrar dated 30 April 2020, to register the Taungurung Settlement Indigenous Land Use Agreement under s 24CK(1) of the Native Title Act 1993 (Cth). The Taungurung ILUA is an “area ILUA” under the Native Title Act and is a key component of a wider settlement under the Traditional Owner Settlement Act 2010 (Vic). While the parties did not address in detail the precise effect of the ILUA according to its terms, it is apparent that the ILUA provides for the surrender of native title over the area it covers in certain circumstances and the extinguishment of that title; that no native title is being recognised by the agreement; and that no compensation is payable under the Native Title Act. In return the State of Victoria has agreed to provide a range of economic and non-economic benefits to those who fall within the definition of the “traditional owner group” in the ILUA, through a corporation established as part of the settlement. It is not in dispute that the ILUA is intended to preclude any future claims for, and determination of, native title over the ILUA area.

2    The applicants are each persons who claim to hold native title in parts of the ILUA area. An affidavit in support of the application described the applicants as follows:

(a)    the first Applicant, Ms Margaret Gardiner, is a Ngurai Illum Wurrung, indigenous elder as well as Waywurru elder, for present purposes;

(b)    the second Applicant, Mr Gary Murray, is also a Dhudhuroa, indigenous elder as well as an elder of the Yorta Yorta People;

(c)    the third Applicant, Mr Vincent Peters, is a Ngurai Illum Wurrung, indigenous elder; and

(d)    the fourth Applicant, Ms Elizabeth Thorpe, is a Ngurai Illum Wurrung, indigenous elder as well as Waywurru.

The application is supported by two affidavits from David Shaw, the solicitor for the applicants, the second correcting an omission in his first affidavit. Mr Shaw’s affidavits were not affirmed at the time of their filing on 11 June 2020 and 7 July 2020 respectively, but were accepted for filing in accordance with practice note SMIN-1, Special Measures in Response to COVID-19. Mr Shaw’s affidavits were subsequently affirmed on 17 June 2020 and 9 December 2020 and refiled on 9 December 2020.

3    For the reasons set out below, the judicial review application will be upheld on some grounds, but not all of them. The parties will have an opportunity to be heard on the question of appropriate relief after they have considered the Court’s reasons.

Background

4    The ILUA in dispute is the product of negotiations between the first respondent and the State that occurred for some years prior to its registration on 30 April 2020. It is part of a package of agreements between the Taungurung People and the State of Victoria forming part of a recognition and settlement agreement, entered into under s 4 of the TOS Act. As noted by Richards J in a decision in a related proceeding, Gardiner v Attorney-General [2020] VSC 224 (at [3]):

The settlement package is yet to be fully implemented. If and when that occurs, it will confer significant benefits on the Taungurung and its members. In particular, if the ILUA is registered, it will bind all persons holding native title in relation to any of the land or waters in the agreement area, who are not already parties to the agreement. Its effect will be to settle all native title claims in respect of the agreement area.

5    The first respondent, The Taungurung Land and Waters Council, is represented by First Nations Legal and Research Services. First Nations Legal is the Native Title Representative Body for Victoria, and receives Commonwealth funding to undertake this role pursuant to s 203FE of the Native Title Act. First Nations Legal is, accordingly, also a body which can certify the authorisation of an ILUA under s 203BE of the Act.

6    The ILUA was entered into on 26 October 2018. On 30 November 2018, First Nations Legal certified that the requirements in s 203BE(5)(a) and (b) had been met by the process leading to the agreement of the ILUA. The application for registration of the ILUA was made on 17 December 2018.

7    On 20 March 2019, the National Native Title Tribunal gave notification of the application to register the ILUA, in accordance with s 24CH of the Native Title Act.

8    On 6 June 2019, the solicitors for the applicants and certain other people, whom I will refer to as the objectors, wrote to First Nations Legal, stating that they intended to object to the registration on the bases that:

(a)    the certification of the ILUA was “indistinguishable from the one held in Quall not to be a certification for the purposes of ss 24CG(3) and 203BE of the NT Act”, referring to the decision of the Full Court in Northern Land Council v Quall [2019] FCAFC 77; and

(b)    the ILUA had not been authorised as required by s 251A of the Native Title Act, and so could not meet the conditions for proper certification under s 203BE of the Act.

The applicants requested that the application for registration be withdrawn.

9    On 20 June 2019, the applicants provided a letter of objection to the registration of the ILUA to the Native Title Registrar, noting in detail the objections they had previously provided to First Nations Legal.

10    First Nations Legal and the State each provided submissions to the Registrar in response to the objectors. These submissions are before the Court and are summarised below in the context of the summary of the delegate’s decision.

11    On 28 November 2019, the objectors submitted four affidavits, which had been filed in a related proceeding commenced in the Supreme Court of Victoria, to which I refer below.

12    On 30 April 2020, the Registrar’s delegate registered the ILUA under s 24CK of the Native Title Act. It remained registered at the time of trial and the time of the publication of these reasons for judgment. There was no challenge to the delegation by the Registrar of the exercise of power under s 24CK.

Related proceeding in the Supreme Court of Victoria

13    Prior to, and then concurrently with, the proceedings in this Court, judicial review proceedings were instituted in the Supreme Court of Victoria in relation to the recognition and settlement agreement. Three of the four plaintiffs in that proceeding are applicants in this proceeding. Consistently with their case in this proceeding, and amongst other claims, the applicants in the Supreme Court dispute that the Taungurung are the correct traditional owners (and native title holders) of the entire area covered by the recognition and settlement agreement. On 18 August 2020, Richards J determined that the Supreme Court proceeding be stayed until after the determination of the proceeding filed in this Court: Gardiner v Attorney-General (No 3) [2020] VSC 516.

Part A Threshold Statement request

14    As part of the process under the TOS Act, First Nations Legal’s predecessor, Native Title Services Victoria, on behalf of the Taungurung People, had prepared a Part A Threshold Statement under that Act and provided it to the State. That document was subject to a notice to produce in the Supreme Court proceeding, and became subject to an interlocutory judgment after the State refused to produce the document because it had been provided on a confidential basis: Gardiner VSC. Richards J described the document as follows (at [16]-[17]):

The Statement was prepared for and submitted on behalf of the Taungurung to formally initiate negotiations with the State for an agreement under the Settlement Act. It was prepared as required by the ‘Threshold Guidelines for Victorian traditional owner groups seeking a settlement under the Traditional Owner Settlement Act 2010’, published in 2013 by the Native Title Unit of the then Department of Justice. The Guidelines set out a process for traditional owner groups to seek entry into negotiations with the State towards a settlement under the Settlement Act, by lodgement of a threshold statement. They also set out the threshold matters to be addressed, and the process for the State’s consideration of a threshold statement.

The Guidelines contemplate that a threshold statement will be prepared in two parts. The Part A threshold statement is to contain six items:

A1.    Statement of intent to negotiate

A2.    Traditional owner group statement of association to country

A3.    Description and basis of traditional owner group

A4.    Description and basis of proposed agreement area

A5.    Research process overview, chronology and findings

A6.    Traditional owner group decision-making

(Footnotes omitted.)

15    Richards J made orders dated 1 May 2020 that the Part A Threshold Statement be provided to the Supreme Court, with leave to be given to the solicitors for the plaintiffs in the Supreme Court proceeding to inspect and copy the statement. The orders required that if the document was provided to the plaintiffs, they be required to undertake to maintain the confidentiality of the document and to not use the document or the information in it other than for the purposes of the Supreme Court proceeding. The result is that, at the time of the hearing in this Court, the applicants are aware of the contents of the Part A Threshold Statement, but the document is not before the Court in this proceeding.

16    The applicants did not however have access to the contents of this document at the time of the delegate’s decision on 30 April 2020. They did have access to a summary version. In 2014, a “summary threshold statement” was prepared, and published by the Victorian Department of Justice, inviting responses from the Victorian traditional owner community. There was no dispute in this proceeding that the applicants have had access to the summary threshold statement and it is before the Court in this proceeding.

17    During the ILUA notification period, on 7 November 2019, the solicitors for the applicants wrote to the Registrar, providing the applicants’ objections to the registration of the ILUA. Among other things, the letter noted that the Part A Threshold Statement was (at that time) subject to a notice to produce in the Supreme Court proceeding and that the State had resisted production. The applicants’ solicitors submitted that

the Registrar should request FNLRS and the State of Victoria to produce the Part A Threshold Statement and, on its provision, allow the objectors an opportunity to comment on its contents.

18    The letter submitted that the Part A Threshold Statement was

the fundamental document upon which the proponents of the ILUA must rely to assert 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.

19    The letter also made the following submissions:

In our view, the production of the Part A Threshold Statement would demonstrate the extent and quality of the research underpinning the ILUA in question and the efforts made to identify the Native Title claimants. As matters stand, apart from assertions made on behalf of the Taungurung Group and the brief research paper enclosed with the submissions made by FNLRS, no research material has been put before the Registrar to enable the Registrar to be satisfied that ‘all reasonable efforts’ have, in fact, been made.

Further, in considering whether ‘all reasonable efforts’ have been made for the purposes of s 203BE(5)(a) and (b) of the NTA, in light of White J’s comments in Bright extracted above to the effect that each case must be determined by its own circumstances, the Registrar, we submit, must bear in mind that the proposed Taungurung ILUA covers in excess of 8% of the land mass of the State of Victoria, i.e. an area of 20,210 square kilometres. The proponents of the Taungurung ILUA rely on the efforts of the respective proponents of the ILUA in the Bright and Kemppi cases to suggest that what amounted to ‘all reasonable efforts’ in those cases should be sufficient in this case. In our submission, this is misleading. The ILUA in issue in Bright concerned an area of land 10 square kilometres. The ILUA in issue in Kemppi concerned an area of land about 27.5 square kilometres. In this case, the proponents must, in light of the sheer size of the agreement area and the considerable implications for so many Victorian traditional owners, be held to a higher standard than was acceptable in the small agreement areas in the Bright and Kemppi cases.

20    The cases referred to in this extract are Bright v Northern Land Council [2018] FCA 752 and Kemppi v Adani Mining Pty Ltd (No 2) [2019] FCAFC 117.

21    The delegate noted this submission in her reasons at [94]. She stated:

I note that some objectors have suggested I should require First Nations to produce the Threshold Statement that was provided to the State on a confidential and without prejudice basis during the Settlement Act negotiations, and the information contained in the database maintained by First Nations. Further, there are assertions that the database does not distinguish between Taungurung and Ngurai Illum and that there is no evidence about how the database was compiled and what steps were taken to test the claims made by the people that they had native title over the land. As mentioned earlier, the onus here is on the objectors to satisfy me that the requirements of s 203BE(5)(a) are not met, and not on First Nations or any other party. I also note that First Nations has done extensive research into the composition of the Taungurung group, holds a genealogical register, and has also indicated that membership required more than blood descent for a person to retain rights and interests over a particular area. I understand that those people on the database met these criteria or have been verified through these means.

Finding

22    I find that the applicants were not provided with the Part A Threshold Statement at any time prior to the decision of Richards J on 1 May 2020, and so did not have access to a copy of the Part A Threshold Statement during the notification and objection process in 2019. I find also that the applicants made clear submissions to the Registrar that the document was central to the Registrar’s task, and to their ability properly to exercise their rights under s 24CI of the Native Title Act to object to the registration of the ILUA.

Application for extension of time

23    On 11 June 2020, the applicants filed an application for an extension of time under r 31.02 of the Federal Court Rules 2011 (Cth) to lodge an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application was accompanied by a supporting affidavit affirmed by Kylie Maree Rodman on 10 June 2020. It is unnecessary to consider at length the grounds for the application for extension of time, because the extension sought was of only four minutes. Ms Rodman’s affidavit stated that this brief delay in filing the application for judicial review was due to delays caused by her working from home, without access to the usual IT infrastructure of her office, also as a result, I infer, of the COVID-19 pandemic.

24    On 8 July 2020, I made orders extending the time for filing the originating application under s 11 of the ADJR Act. The application was subsequently filed on 17 July 2020.

The legislative scheme

25    For an ILUA to be registered, a decision such as that under review in this proceeding is required by ss 24CJ and 24CK of the Native Title Act, which provide:

24CJ Decision about registration

The Registrar must, after the end of the notice period, decide whether or not to register an agreement covered by an application under this Subdivision on the Register of Indigenous Land Use Agreements. However, in a case where section 24CL is to be applied, the Registrar must not do so until all persons covered by paragraph (2)(b) of that section are known.

24CK Registration of area agreements 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.

Second condition

(3)    The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement.

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.

26    Thus, the Registrar or her delegate has a binary choice under s 24CK. If the statutory conditions are met, she must register the ILUA. If they are not, she must not register the ILUA.

27    The certification function to which s 24CK(1) refers is, relevantly, the following part of s 203BE:

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.

28    The meaning of the condition in s 24CK(2)(c), and its application to the facts, is central to the applicants’ arguments on judicial review.

The Delegate’s Decision

29    The decision of the delegate of the Registrar set out the chronology prior to the registration decision as follows (at [2]-[9]):

On 20 October 2018, a meeting was held at Camp Jungai in Rubicon, Victoria to authorise the Taungurung Settlement ILUA (authorisation meeting).

On 17 December 2018, an application was made to the Registrar, pursuant to s 24CG(1) of the Act, for the registration of the Taungurung Settlement ILUA as an area agreement ILUA (see ss 24CA to 24CE). The area covers about 20,210 square kilometres and comprises land and waters south of the Murray River from Rochester to Wangaratta to the Great Dividing Range.

On 25 February 2019, I decided that the Registrar was required to give notice of the agreement, pursuant to s 24CH, because the procedural requirements for notification of the agreement had been met. It is not disputed that the application complied with the procedural requirements for notification and that the Registrar was thus obliged to notify the agreement.

The notice period commenced on 20 March 2019, and between 24 April to 20 June 2019, objections against the registration of the agreement were received from persons claiming to hold native title in the agreement area.

On 20 May 2019, the objectors and the parties were advised that the Registrar was considering the impact of the Full Federal Court’s decision in Northern Land Council v Quall [2019] FCAFC 77 (Quall) and that while undertaking such consideration, the delegate would stay the procedural fairness process in relation to each objection received. The parties were advised that the delegate was of the view that she was required to continue to assess the validity of any further objections that were made and that the procedural fairness for any prima facie valid objection would also be stayed. The parties were also requested to advise the delegate of their proposed course of action if they considered the Full Court’s decision would adversely affect the ability of the agreement being registered as an ILUA.

On 20 June 2019, the notice period for the agreement ended.

In the period from 2 August 2019 to 28 February 2020, the procedural fairness steps outlined in Attachment A were taken.

In November 2019, December 2019 and February 2020, the objectors and the parties were advised that, in my view, a fair opportunity had been provided for all relevant persons to comment on the objections and the responses received in relation to them, and that I would proceed to make a decision.

(Footnotes omitted.)

30    Some of the objections referred to in paragraph [5] of the delegate’s decision were objections raised on behalf of the applicants in this proceeding. The “procedural fairness steps” taken by the delegate were described in Attachment A to the delegate’s decision:

•    On 24 April 2019, the Registrar received an objection against registration of the agreement from Mr Freddie Dowling.

•    On 25 April 2019, the Registrar received an objection from Dr Judith Crispin.

•    On 9 May 2019, the Registrar received an objection from Ms Michelle Carlon.

•    On 20 May 2019, the objection by Dr Crispin was provided to First Nations as the native title service provider and the representative of the Taungurung Signatories and the Taungurung Clans Aboriginal Corporation, and the Victorian Government Solicitor’s Office as the representative of the State of Victoria. First Nations and the State of Victoria were also informed, by a separate letter of the objection by Mr Dowling but were advised that he had been given an opportunity to provide additional information to support his objection and that his legal representative, Mr Matthew Pudovskis had requested a copy of the application for registration to progress the objection.

•    On 22 May 2019, the Victorian Government Solicitor’s Office confirmed that the parties agreed to only a copy of the certification of the application to be provided to Mr Dowling’s representative. The Victorian Government Solicitor’s Office also queried whether there would be a change to the registration process being undertaken in relation to the application following the decision of the Full Federal Court in Quall handed down on 20 May 2019.

•    On 24 May 2019, the objectors and the parties to the agreement were informed that the application for registration may be affected by the Full Court’s decision in Quall and that the procedural fairness process had been stayed in relation to each objection until the Registrar had considered the implications of the decision. The parties were also informed that the delegate would continue to assess the validity of any further objections received and objections that were prima facie valid would also be stayed. The parties were requested to advise their proposed course of action if they considered the Full Court’s decision would adversely affect the ability of the agreement being registered as an ILUA.

•    On 11 June 2019, the Registrar received an objection from Mr Darren Atkinson.

•    On 17 June 2019, the Registrar received an objection from Mr Alan Dowling.

•    On 19 June 2019, objections were received from Ms Nicole Atkinson, Ms Porsha Atkinson and Mr Kevin Atkinson.

•    On 20 June 2019, objections were received from Mr Robert Nicholls and Professor Henry Atkinson.

•    On 2 August 2019, the objections and supporting material, including letters of support of some of the objections, were provided to First Nations and the Victorian Government Solicitor’s Office.

•    On 30 August 2019, in response to the objections, three submissions were received from First Nations responding to the objection of Mr Freddie Dowling, the objectors represented by Holding Redlich and other objectors (collectively the Bangerang and Wollithiga objectors).

On 10 September 2019, the State responded to the objections, also providing three submissions. A copy of the responses by First Nations and the State were provided to the objectors on 3 and 10 September 2019. The objectors were also provided with a copy of First Nations’ certificate pursuant to s 203BE of the Act which accompanies the application for registration.

•    On 23 September 2019, Mr Alan Dowling provided a response to the submissions by First Nations, the State’s Comments and Attachment B to the State’s Comments (A Dowling’s Response).

•    On 23 September 2019, Mr Kevin Atkinson, Mr Darren Atkinson, Ms Nicole Atkinson, and Ms Porsha Atkinson provided a document titled ‘Response to State of Victoria’s Comments on the Bangerang and Wollithica Objections’ (Atkinson’s response to State’s Comments) and a Parliament of Victoria First Session response by the Minister for Aboriginal Affairs.

•    On 24 September 2019, Mr Kevin Atkinson, Mr Darren Atkinson, Ms Nicole Atkinson, and Ms Porsha Atkinson provided a document titled ‘Our Objectors Responses\To the FNLRS Response’ (Atkinson’s response to First Nations).

•    The material received on 23 and 24 September 2019 was not provided to First Nations and the State for further comment as in my view the objectors did not raise new matters that required comment and a fair opportunity had been provided for all relevant persons to comment on these objections.

•    On 7 October 2019, Mr Matthew Pudovskis provided a submission on behalf Mr Freddie Dowling, responding to the matters raised by First Nations and the State in their responses.

•    On 7 November 2019, Holding Redlich provided a submission on behalf of its clients responding to submissions from the First Nations and the State.

•    The objectors and the parties were advised that in my view the objectors represented by Holding Redlich did not raise new matters within the additional material provided that required further comment and that a fair opportunity had been provided for all relevant persons to comment on the objections. There was further correspondence in relation to this, and on 28 November 2019, Holding Redlich provided a letter enclosing four affidavits filed and served in the Supreme Court of Victoria proceeding.

•    On 22 November 2019, the State provided comments in response to the submissions made on behalf of Mr Freddie Dowling.

•    On 6 December 2019, First Nations provided a response to the submissions made on behalf of Mr Freddie Dowling.

•    In response to these submissions, further submissions was provided by Mr Pudovskis on behalf of Mr Dowling on 21 January 2020.

•    The parties were asked whether they wished to comment on the recent decision in McGlade No 2 and any other matter. The State and First Nations provided responses on 10 and 18 February 2020 respectively.

•    On 28 February 2020, Mr Pudovskis provided submissions on behalf of Mr Dowling in response to the parties’ submissions.

•    This material received in support of Mr Freddie Dowling’s objection was not provided to First Nations and the State for further comment as in my view the objectors did not raise new matters within the additional material provided requiring comment and because a fair opportunity had been provided for all relevant persons to comment on the objection.

31    From [10]-[13] the delegate considered the information to which she must have regard. From [14]-[17] the delegate set out the relevant text of ss 24CJ and 24CK.

32    The delegate considered (from [18]-[26]) the threshold question of whether the agreement was an ILUA within the meaning of that term in the Native Title Act. At [27], she concluded the agreement met the requirements of ss 24CB to 24CE and was an ILUA within the meaning of s 24CA of the Native Title Act. The applicants do not dispute that this was the correct conclusion.

33    The delegate then went on to consider the two conditions required by s 24CK, the first condition being that in s 24CK(2), (set out above at [25]). The delegate noted the mandatory nature of the requirement in s 24CK at [28]:

If the conditions of s 24CK(2) and (3) are satisfied, I must register the agreement and if they are not satisfied, I must not register the agreement: see s 24CK(1).

The first condition: s 24CK(2)

34    This condition is concerned with objections against registration of the agreement. From [31]-[37], the delegate considered whether the objections made were valid, and concluded that each objection was valid. From [38]-[45] the delegate considered the nature of the task required by s 24CK(2)(c) and stated:

I understand that the condition in s 24CK(2)(c) will be met unless the Registrar is satisfied that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification.

[Having set out s 203BE(5)]

Although s 203BE(5) states that ‘[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 …’, the relevant test is at s 24CK(2)(c).

35    The delegate then considered a number of authorities of this Court, in particular the decisions in Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; 235 FCR 40 at [61]; Bright at [49] and Kemppi at [79] and [84]. The delegate described these decisions as having the effect that “the objectors have the onus of satisfying the Registrar that one or both of the requirements in s 203BE(5)(a) and (b) were not met”. The delegate noted the objectors’ submission

that the onus is on the Taungurung claim group and the State to demonstrate that ‘all reasonable efforts’ were made to identify persons who hold or may hold native title in the agreement area. There have been other similar assertions.

(Footnotes omitted.)

36    On the basis of the authorities cited above, the delegate rejected this submission and confirmed her view that “the test at s 24CK(2)(c) directs the Registrar specifically to paragraphs 203BE(5)(a) and (b) and their substantive provisions”.

37    The delegate then turned to consider whether there was valid certification as required by s 203BE(5). At [48], the delegate set out a detailed summary of the assertions made by objectors challenging the validity of the certification. Many concerned the application of the decision in Quall FCAFC. At [49] the delegate set out a summary of the State and the TLWC’s alternative contentions. The delegate concluded at [50]-[51]:

Following the Full Federal Court’s decision in Quall, the validity of the certification of the agreement has been brought to my attention. However, the subsequent decision of the Full Court in Kemppi FC has confirmed that when an objection to the registration of an agreement as an ILUA is made, the task before the Registrar is to consider afresh whether the requirement of s 203BE(5)(a) and (b) have been satisfied. The task is not to review the certification generally. In particular, the Full Court stated:

The validity or correctness of the certificate that QSNTS [the relevant representative body] gave under s 203BE(5) and (6) was not a statutory condition of the Registrar’s power and duty to register the Adani ILUA if, as occurred here, there was an objection under s 24CI. That is because in such a case, s 24CK(2)(c) required the delegate to consider whether “in relation to the certification”, she was satisfied that the requirements of s 203BE(5)(a) and (b) had not been met. In other words, the Registrar, under s 24CK(2)(c), is not considering the opinion of the representative body, but only whether he or she is satisfied that the requirements of each of pars (a) and (b) in s 203BE(5) have not been met.

Accordingly, I do not consider it my task to determine the validity of the certification.

38    The delegate then considered each of the elements of s 203BE(5)(a) and (b) and asked whether the objectors had satisfied her that the requirements of those paragraphs were in fact not met. Not all of the objections made are relevant to the grounds of review in this proceeding.

Sub-s 203BE(5)(a)

39    Relevantly, the delegate summarised the objectors’ submissions (referring to them as the “Holding Redlich objectors”) at [69]. The delegate set out in some detail the objectors’ claims to hold native title in the area, and their claims that the TLWC and First Nations Legal failed to make reasonable efforts to ensure that all persons who hold or may hold native title in the agreement area were identified. The delegate’s summary was:

•    First Nations’ database does not distinguish persons identifying themselves as Taungurung or Ngurai Illum. The objectors and their family members attended the authorisation meeting with proxies from 186 people who were descendants of the Taungurung apical ancestors and who were unable to attend in person. Following the motion to accept the proxies being defeated, First Nations took no steps to make enquiries with the 186 people who wished to be involved in the agreement making process. By restricting the agreement making process to approximately 150 people on its database, First Nations prevented others who hold or may hold native title from being identified.

•    Ms Thorpe, Mr Peters and Ms Layton, and their families, were not contacted by First Nations and did not see any notice of the authorisation meeting. Mr Peters and Ms Layton’s attempts to engage with First Nations about the Taungurung claim, such as their research of inclusion of apical ancestors, have been disregarded, and after hearing of the meeting from a third party, Ms Layton attempted to contact representatives of the Taungurung claim group who refused to engage with her.

•    The notices given of meetings were not published in a way which reached interested parties and did not alert the Ngurai Illum that the proposed agreement applied to them.

40    At [70] the delegate set out First Nations Legal’s response to these objections:

•    The contention that First Nations’ database did not distinguish between people identifying as Taungurung and Ngurai Illum is irrelevant. The particulars of their identity or purported membership of a particular group is not a requirement of the Act.

•    Contrasting the number of proxies collected as opposed to the number of people on the database does not indicate whether ‘reasonable efforts’ were made to identify native title holders as the database was not the only basis through which First Nations sought to comply with s 203BE(5)(a). The meeting was publically advertised in relevant newspapers to reach potential native title holders beyond the database.

•    The database has been developed through a period of research, from which approximately 150 entrants were identified, with most having a long association with the Taungurung group. Approximately 100 people attended the authorisation meeting, who were required to go through a registration process identifying their lines of descent before they could enter. This was done with the assistance of First Nations research staff and with reference to a genealogical register, and where any dispute or uncertainty arose, other Taungurung people were on hand to assist and verify lines of connection.

•    The identity of those who purportedly provided proxies have not been provided and no explanation has been provided how their identity or descent were verified or could be verified, or how they are reasonably considered to hold or may hold native title rights. The objection provides no details beyond descent from an apical ancestor, when traditional owner groups (including the Taungurung) commonly require more than blood descent to retain rights and interests over a particular area. Those persons have also not separately made objections.

•    The proxies may provide some probative value as to the efforts made to identify native holders. The objectors made considerable efforts to identify native title holders by:

•    Contacting at least 186 people who they considered may hold native title rights, advising them of the meeting, and then obtaining their proxy if they declined to attend;

•    Actively promoted the meeting on Facebook, and encouraged attendance in support of their position opposing the recognition and settlement agreement; and

•    Arranged for the hire of a coach to drive from Melbourne to the location of the authorisation meeting (with funding provided by First Nations).

•    These efforts did not result in the attendance of substantial numbers of native title holders who supported their position but did increase the awareness of potential native title holders, giving them the opportunity to participate. This contradicts the assertions that the authorisation meeting was improperly notified or that it proceeded without the knowledge of a large group of native title holders. First Nations was entitled to take these efforts into account when assessing if ‘all reasonable efforts’ had been made, although the efforts of the objectors are legally insignificant compared with the efforts of TLWC ensuring notice was provided to its approximately 300 members.

•    It was unlikely that there was any reasonable expectation the proxies would be accepted, making attendance in person was necessary, as the reliance on the proxies was not advised until 4:48pm the afternoon prior to the authorisation meeting. To First Nations’ knowledge, proxies have never been accepted in any meeting dealing with rights and interests, and in any event ILUAs must be authorised using a decision making process under s 251A. The map in the public notice showed that the proposed agreement area overlaps the area claimed by the Ngurai Illum by about 30 – 40%, making it apparent that the proposed agreement may impact upon those interests asserted by the objectors on behalf of the Ngurai Illum. In addition, it is clear that each of the objectors were subjectively so aware.

•    Ms Thorpe, Mr Peters and Ms Layton were all aware of the authorisation meeting, and attended and participated, despite not being on the database or seeing the public notifications. Mr Peters also attended several information sessions held before the authorisation meeting, and with Ms Thorpe, he met with Taungurung representatives, the lawyer with carriage of the matter, and the principal researcher on 12 October 2018 at First Nations’ offices. Ms Thorpe and Ms Layton also actively participated in the decision making process at the authorisation meeting, although they opposed the decision that was made.

•    First Nations, the Taungurung, and others made significant efforts over many years, which included research and open full group meetings, the public notification and objection process under the Settlement Act, public and personal notification of the authorisation meeting, and efforts of the objectors to notify 186 people directly and on social media. This contributed to the widespread knowledge of the proposed ILUA, and the ability of people who hold or may hold native title to participate in the authorisation process.

41    At [71] the delegate set out the State’s response to the objections, which noted that the State had also made an attempt to contact Ms Gardiner and Mr Murray, through letters sent to them as individuals and also to Dhudhuroa Waywurru Aboriginal Corporation (of which Mr Murray is Chairperson).

42    At [72] the delegate summarised the objectors’ responses to the submissions by the First Nations Legal and the State. The objectors’ response relevantly included contentions that:

(a)    the Registrar should require the Part A Threshold Statement and First Nations Legal’s database to be produced to them.

(b)    that the ILUA should be distinguished from those considered in Bright and Kemppi FC because the area of land in question is significantly larger, and so the standard for “all reasonable efforts” ought to be higher.

(c)    the status of the objectors as representatives of their families and groups was important, and that inferences of opposition to the ILUA could be drawn from the existence of the 186 attempted proxy votes.

(d)    the onus was on those seeking registration of the ILUA to demonstrate that all reasonable efforts were made to identify native title holders.

43    After setting out the submissions regarding further objections by individuals not involved in this proceeding, the delegate considered whether, in light of the objections, the requirement that “all reasonable efforts” be made to identify people who hold or may hold native title had been satisfied. Relying on the reasons of White J in Bright, the delegate found that whether the criterion was satisfied was a question of fact, to be determined by reference to the circumstances. Citing QGC Pty Ltd v Bygrave (No 3) [2011] FCA 1457; 199 FCR 94 the delegate stated (at [82]):

the expression ‘persons who hold or may hold native title’ in s 24CG(3)(b)(i) is directed ‘to all of the different sets of native title rights and interests that may be held in the area covered by the agreement’ and may refer to those rights and interests that have been recognised formally and those that have no formal recognition. This can include persons who ‘by any means makes a claim to hold native title’. His Honour considered that the expression ‘in s 24CG(3)(b)(i) is to be construed expansively and inclusively’ however it must be ‘reasonable to conclude that person, group, or community holds native title, in any part of the area covered by the agreement [emphasis added]’.

44    Having considered other authorities on the interpretation of s 203BE(5)(a), the delegate concluded at [85]:

In light of the above, I understand the requirement is that ‘all reasonable efforts have been made’, which directs s 203BE(5)(a) to the efforts made and whether they can be considered reasonable in the circumstances. I am not required to consider whether all potential native title holders have been identified or whether I agree with the views formed by the representative body about ‘all persons who hold or may hold native title’ in relation to the land and waters covered by the agreement area. Rather, it is whether the material shows that those views were shaped as a consequence of reasonable efforts. To satisfy me that all reasonable efforts have not been made would require the objectors to show that the efforts to ensure all persons who hold or may hold native title in the area have been identified were wanting such that the efforts and subsequent views cannot be said to be reasonably based.

45    At [86]-[99] of her reasons, the delegate applied this understanding of the test to the circumstances before her. This included her response regarding the objectors’ request that the Part A Threshold Statement be made available to them, as discussed above. The delegate noted that First Nations Legal had undertaken “substantial anthropological, archival, historical and genealogical research” into “consideration of the composition of the landowning group and the apical ancestors of the group” (at [86]). She found that this process included:

(a)    a detailed notification and consultation process under the TOS Act, including contacting various aboriginal and traditional owner entities by letter;

(b)    notification of the authorisation meeting in five newspapers; and

(c)    requiring that the people who attended the authorisation meeting undergo a registration process before attending, identifying their lines of descent.

46    The delegate then found (at [96]-[99]:

It is also asserted that some of the objectors were not given an opportunity to decide whether to be included in the Taungurung claim and to engage in any research undertaken by First Nations. I consider that opportunities were provided during the Settlement Act process where the objectors or the bodies that represent their interests were invited to participate, and have their submissions considered and investigated. The objectors were also given an opportunity to engage by attending meetings of the Taungurung, including the authorisation meeting.

On the basis of the efforts outlined above, First Nations formed the view that ‘all persons who hold or may hold native title’ in relation to the agreement area include members of the Taungurung People.

In the circumstances here, the claims to hold native title over the area were the subject of reasonable and comprehensive enquiries by First Nations which resulted in that body identifying the Taungurung People. The persons who therefore needed to be identified for the purpose of authorising the agreement were the Taungurung People. The objectors have therefore not satisfied me that all reasonable efforts were not made by First Nations in the circumstances here.

It follows that the objectors have not satisfied me that the requirements of paragraph 203BE(5)(a) were not satisfied.

Sub-s 203BE(5)(b)

47    The delegate then asked herself if the objectors had shown that the requirements of s 203BE(5)(b) were not satisfied.

48    Section 203BE(5)(b) requires that the persons identified under s 203BE(5)(a) authorised the making of the agreement. At [102], the delegate extracted the relevant statements from First Nations Legal’s certificate:

All the persons so identified have authorised the making of the agreement: 203BE(5)(b)

17.    During negotiations with the State of Victoria, First Nations sent updates to the people listed on the Database for the Taungurung native title claim group, and presented at meetings of the native title group, in relation to the progress of those negotiations (particularly during 2017 and 2018, leading up to finalisation of negotiations).

18.    First Nations also arranged five information sessions during the month prior to the authorisation meeting to provide an opportunity for the people who hold, or may hold, native title in the proposed Taungurung ILUA area to learn about the proposed settlement package (including the terms of the Taungurung ILUA) and to ask questions. Details of the information sessions were contained in the same notice in which the authorisation meeting was notified on 24 September 2018, and again in the reminder notices of 3 October 2018, and 11 October 2018.

19.    In addition First Nations produced a forty-eight page plain-English guide to the proposed settlement. A copy of this document was sent to every person on the Database along with the reminder notification sent 3 October 2018, and further copies were available at the information sessions and the authorisation meeting.

20.    First Nations also produced a further six page plain-English short-form guide to the settlement. A copy of this document was sent to every person on the Database along with the reminder notification sent 11 October 2018, and further copies were available at the remaining information session and the authorisation meeting.

21.    First Nations staff arranged, attended and presented at the authorisation meeting held on 20 October 2018 in Rubicon for entry into the Taungurung ILUA and other agreements.

22.    First Nations offered reasonable travel assistance for people to attend the meeting.

23.    Those in attendance at the authorisation meeting resolved to employ an agreed and adopted decision making process to authorise entry into the Taungurung ILUA and other agreements.

24.    The Taungurung ILUA and other agreements were authorised in accordance with the agreed and adopted decision making process, including a direction to the Taungurung Signatories to execute the Taungurung ILUA.

49    The delegate then summarised the objectors’ contentions, including, from [104], the contentions of the applicants:

In the objection of 20 June 2019, the following assertions are made:

•    There was a defect in the authorisation of the agreement by TLWC, which is currently the subject of proceedings before the Supreme Court of Victoria.

•    It was incorrectly decided at meetings on 14 July 2012 and 10 August 2013 that the Ngurai Illum should be treated as a subgroup of the Taungurung and their ancestors, including Tooterie, be added as Taungurung ancestors. Tooterie previously was not considered a Taungurung ancestor.

•    The proposed recognition and settlement agreement, together with the proposed ILUA, provided that the Taungurung People consist of persons descended from 12 apical ancestors, including Tooterie, associated with Taungurung country.

•    The draft minutes from the 20 October 2018 authorisation meeting record the following:

•    Verification of attendees entitled to participate in the authorisation meeting as descendants of the 12 apical ancestors checked against a genealogy (item 6);

•    Adoption of an agreed decision making process (resolution 2);

•    Removal of Tooterie as an apical ancestor (resolution 10);

•    Authorisation of the making of the ILUA and the recognition and settlement agreement, and of an application to have the ILUA registered under the Act (resolution 13);

•    Authorisation of TCAC to be the traditional owner group entity, on behalf of persons who hold or may hold native title in the area, for the purposes of managing benefits under the ILUA and Settlement Act, and to formally enter into the agreements (resolution 15).

•    The minutes record that no action was taken to limit authorisation to the descendants of the remaining 11 apical ancestors or to reduce the agreement area by Tooterie’s country.

•    Accordingly, there was not a single group, as required under the Settlement Act, in relation to who may authorise the ILUA under s 251A of the Act. Therefore, there was not, within the meaning in s 251A, a single authorising decision as purported to occur at the authorisation meeting, binding both the Taungurung and Ngurai Illum.

•    Alternatively, those in the reconstituted Taungurung group descended from 11 apical ancestors could not comprise all the persons who hold or may hold native title in the area who may authorise the making of an ILUA under s 251A. If Tooterie descendants are not persons who hold or may hold native title in the area, then authorisation of the ILUA was purportedly given by persons other than those who hold or may hold native title.

•    A number of the objectors have been aware of the Taungurung agreement making process for some time. They have attempted to engage with the Taungurung to voice their objections, however, First Nations has not facilitated that process and the Taungurung has rejected the objections. Since at least 2011, a number of the objectors have attempted to raise their objections to the boundaries of the agreement area and/or inclusion of their ancestors as Taungurung ancestors, including by attending Taungurung full group meetings or through the Settlement Act process, but such concerns have been met with hostility and/or disregarded.

•    Since October 2017, Holding Redlich has corresponded with the Department of Justice and Regulation, First Nations, the Hon Martin Pakula MP (then Victorian Attorney-General), the Victorian Government Solicitor’s Office and the Hon Jill Hennessy MP (Victorian Attorney-General) to express the objectors’ concerns about the agreement making process. The overwhelming response has been that they are ‘too late’ to raise concerns. Further, the objectors have also been denied access to documents and information that would enable them to better understand the process that has occurred to date.

•    At the authorisation meeting, the majority of people who identify as Ngurai Illum (whether as an independent group or as a Taungurung clan) supported the motion to remove Ngurai Illum land and ancestors from the Taungurung claim, however, the motion was defeated on the basis of votes from the broader Taungurung claim group.

•    The objectors who attended the authorisation meeting and were not directed to leave, requested that the Chair, accept proxies from 186 traditional owners. The proxy forms were divided into groups based on relevant apical ancestors. Following a letter from Holding Redlich to First Nations dated 19 October 2018, Taungurung were on notice that proxies would be brought by the objectors. All proxies authorised the holder to vote against the authorisation, but a motion to accept the proxies was defeated. No action was taken to notify the persons giving proxies of the recognition and settlement agreement and Taungurung ILUA before or after it had been authorised by the persons present.

•    The notice invited all persons who hold or may hold native title in the land and waters shown in the map and Mr Murray attended the authorisation meeting on the basis that the map showed an area of land including Dhudhuroa country. Mr Murray was excluded from the meeting on the basis that, as a Dhudhuroa person, he did not have standing to vote in a Taungurung meeting, and he was therefore prevented, as a person who holds or may hold native title in the area, from participating in the authorisation process.

(Footnotes omitted.)

50    The delegate then summarised First Nations Legal’s response at [105]:

•    The objectors’ comments about authorisation under s 251A where there are two groups is understood to be based on the decision in Kemp v Native Title Registrar [2006] FCA 939, where it was held that there must be separate processes for each group, and that each group must make a separate authorisation decision.

•    From research undertaken since 1997 in relation to the traditional ownership of the agreement area and in support of Taungurung’s negotiations under the Settlement Act, the Ngurai Illum is understood as a clan or subgroup within Taungurung, and not an independent or separate traditional owner group. Attachment B is a brief research paper supporting this. First Nations requested, including prior to the authorisation meeting, that the objectors provide any evidence or reasoning in support of their view but they have not done so.

•    Tooterie was an Aboriginal woman associated with the agreement area, who was born into the Ngurai Illum. She married into the Wurundjeri-Woi Wurrung and all her known descendants identify as Wurundjeri-Woi Wurrung. One of the objectors, Ms Xiberras, attended the authorisation meeting and challenged the inclusion of Tooterie as a Taungurung ancestor. In her view, Tooterie was more correctly identified as a Wurundjeri-Woi Wurrung ancestor. Given no known person was expressing a Taungurung identity solely on descent from Tooterie, and her inclusion may cause offence to Ms Xiberras and other Wurundjeri-Woi Wurrung people, the resolution to remove Tooterie was strongly supported. This action did not bring into existence some second native title group at the authorisation meeting. Tooterie was not removed based on her Ngurai Illum characteristics, and there are several other Ngurai Illum ancestors who remain as Taungurung apical ancestors.

•    No resolution was made to exclude Tooterie’s descendants from continued participation in the meeting as no such resolution was put to the floor and considered by the meeting. The meeting also had no cause to consider whether by including Tooterie’s descendants, authorisation was given by non-native title holders, as the only two participants asserting descent solely through Tooterie (being Ms Xiberras and her brother) voluntarily left on the basis of no further interest or business in the meeting following removal of Tooterie.

•    The minutes of the meeting on 14 July 2012 show that the Taungurung did not ‘decide’ to include Ngurai Illum at that meeting, and were not of the view that Ngurai Illum were a Taungurung clan prior to the meeting. Instead, in response to objections raised by Ms Gardiner, the Taungurung established a working group to examine the issue and to seek mediation with Ms Gardiner. After several attempts to arrange a mediation, those purporting to represent Ngurai Illum stopped returning calls and mediation could not proceed. On advice of the working group, having considered Taungurung oral tradition that Ngurai Illum was a Taungurung clan, the fact they spoke the same language, and those purporting a separate Ngurai Illum identity were not engaging, the full group resolved to ‘confirm’ Ngurai Illum as a Taungurung clan and to continue attempts to meet with those asserting a separate identity.

•    Tooterie was added as a Taungurung apical ancestor at a subsequent meeting on 10 August 2013. Given native title rights are common or group rights held by a collective traditional owner group or society, the Taungurung claim to Ngurai Illum lands was not reliant on the inclusion of Tooterie or any individual apical ancestor, and did not mean that the agreement area was expanded nor did it provide any benefit to the existing Taungurung members. The sole effect was to make the group more expansive and inclusive, giving those descendants a pathway to enjoy native title rights on Taungurung country. This remained the position until Ms Xiberras, on behalf of her Wurundjeri-Woi Wurrung people, requested at the authorisation meeting that Tooterie be removed.

•    First Nations refute the assertions it had not facilitated engagement between the objectors and the Taungurung, or that the Taungurung have met these concerns with hostility.

•    Each objector asserting a Ngurai Illum identity participated in the authorisation process.

•    Section 251A, and the Act in general, do not provide any right to proxies.

•    Mr Murray was not permitted entry because he is not a descendant of an ancestor associated with the ILUA area, is not accepted by the wider Taungurung group as a native title holder, and research indicates he is not someone who may reasonably be considered to hold native title within the ILUA area. Mr Murray claims his traditional owner group, identified as Dhudhuroa, has native title interests in the east of the agreement area. However, he has never provided the basis for this claim, and the objection remains silent beyond his own assertion.

(Footnotes omitted.)

51    At [106] the delegate set out the State’s response to the objectors:

•    The existence of the Supreme Court of Victoria proceeding does not assist the Registrar to be satisfied that the requirements of s 203BE(5)(a) and (b) have not been met.

•    The Taungurung people see themselves as comprised of a number of clans with similar dialects and as part of a broader Kulin alliance. Some members identify with a particular area or clan and others identify with the group’s country as a whole.

•    As a result of oral history, a common language and a lack of engagement on the issue from those who may assert a separate identity for the Ngurai Illum, it was resolved at a Taungurung group meeting on 14 July 2012 that the Ngurai-Illum is a Taungurung clan.

•    Country associated with the Ngurai Illum therefore formed part of the proposed agreement area. Tooterie was not identified as an apical ancestor at that point and she was not a reason for the inclusion of the Ngurai Illum as a Taungurung clan.

•    During the Settlement Act process, the State received anthropological and historical information from NTSV on behalf of the Taungurung, which concluded that the Ngurai Illum and the Taungurung had common language, laws and customs. The State considered this information and accepted that it was reasonable to include country associated with the Ngurai Illum in the proposed ILUA area.

•    The inclusion of Ngurai Illum country was not reliant on the identification of Tooterie as a Taungurung apical ancestor.

•    Before receiving the Threshold Statement, the State had material from the Taungurung which did not include Tooterie as an identified apical ancestor. The Taungurung resolved to add Tooterie at a full group meeting on 10 August 2013. When the Threshold Statement was received, one of the people regarded by the Taungurung as an ancestor was Tooterie. The State accepted that the Threshold Statement provided sufficient evidence to support a group description that included Tooterie, and that known descendants of Tooterie identified as Wurundjeri.

•    In 2014, as part of the Settlement Act process, the State published the Summary Threshold Statement and invited submissions. Some of the submissions raised concerns about the inclusion of Tooterie as a Taungurung ancestor. The Taungurung, represented by NTSV, provided the State with a response addressing in detail submissions which had raised, among other matters, concerns about the inclusion of Tooterie. After considering the submissions and any responses to them, the State formed the view that who was regarded as a Taungurung ancestor was largely a matter for the Taungurung. The State was content that the inclusion or exclusion of Tooterie was a matter of ongoing consideration by the Taungurung and could be subject to change in the future. The State remained of the view, after becoming aware of the removal of Tooterie as an apical ancestor at the authorisation meeting, that this was a matter for the Taungurung as part of defining and redefining group membership over time.

•    The exclusion of Tooterie did not change who was a member of the Taungurung group as no person in the group claimed descent only from Tooterie.

•    In relation to the proxies provided, Kemppi FC provides that s 203BE(5)(b) will be satisfied if all those who hold or may hold native title are given a reasonable opportunity to attend the authorisation meeting.

(Footnotes omitted.)

52    At [107], the delegate set out the objectors’ response to what was put by both First Nations Legal and the State:

•    The objectors and their families did not take part in the research undertaken in support of the Taungurung claim and therefore the research has not been subjected to outside scrutiny.

•    First Nations failed to properly represent the interests of people from the Ngurai Illum, Waywurru and Dhudhuroa nations and were not receptive to attempts made by the objectors to put forward a contrary position.

•    Even if representatives of the Ngurai Illum stopped returning calls, First Nations were obligated to assist all Aboriginal Victorians to ensure that the interests of Ngurai Illum, Waywurru and Dhudhuroa descendants were effectively represented.

•    The Victorian Aboriginal Corporation for Languages produced a map of Victorian Aboriginal languages displaying Ngurai Illum as a separate language group to Taungurung.

•    There is no evidence that First Nations facilitated engagement between the objectors and the Taungurung or that the Taungurung did not meet the objectors’ concerns with hostility.

•    The Ngurai Illum had no opportunity to opt in or out of the Taungurung claim other than by attending the authorisation meeting where, although more Ngurai Illum sought to vote against authorisation, they were outnumbered by other Taungurung members.

•    Mr Murray asserts that the Taungurung claim group has not established any connection between the Taungurung apical ancestors and the Ovens Valley area in the region of Bright and the surrounding areas. The Dhudhuroa claim to the contested area around Bright is based on evidence that a Dhudhuroa ancestor Jilbino lived in that area.

•    Mr Murray does not alone have the obligation to establish the basis for the Dhudhuroa claim over the disputed area. First Nations has not offered to assist Mr Murray to engage an anthropologist to review his own research. Any failure to provide the basis of his claim cannot justify the Taungurung claim into the disputed area without any external scrutiny.

•    First Nations has not produced evidence to show that the Taungurung apical ancestors had any connection with the land in question, disputed that the Dhudhuroa apical ancestor Jilbino had a connection with the land in question, or attempted to trace the descendants of Jilbino for the purposes of discharging their ‘all reasonable efforts’ obligations.

•    Given the facts are disputed and the outcome has such a profound impact on the objectors, their families and future generations, all parties should be required to submit evidence to enable the Registrar to make findings of fact before exercising her statutory powers.

53    From [110]-[113] the delegate considered the proper construction of the phrase “all the persons” in s 203BE(5)(b). Relying on the Full Court’s finding in McGlade v South West Aboriginal Land & Sea Corporation (No 2) [2019] FCAFC 238; 374 ALR 329, the delegate concluded that “all the persons” is a reference to the persons identified in s 203BE(5)(a). The delegate found these persons to be the Taungurung People. Therefore, the delegate reasoned, the persons who must have authorised the making of the ILUA are those identified as Taungurung People.

54    From [114]-[119] the delegate assessed the applicable decision making process under s 251A. She stated that s 251A “provides for an ILUA to be authorised using a traditional decision making process, or an agreed to and adopted process”. At [115]-[116] the delegate noted that the certificate states, and draft minutes of the authorisation meeting record, that the ILUA was authorised in accordance was an agreed and adopted decision making process. The delegate continued:

I note there is information before me that indicates that there has been research undertaken in relation to the identification of the decision making processes. In my view, there is no information which disputes that an agreed and adopted process should not have been used and that there instead exists a traditional decision making process under s 251A.

(Footnotes omitted.)

55    The delegate then noted the objectors’ contention that

there should have been two decision making processes under s 251A used in relation to the authorisation of the making of the ILUA as there were two distinct groups present, namely the Ngurai Illum and the Taungurung.

56    The delegate rejected this contention and instead accepted the submissions of First Nations Legal and the State that Ngurai Illum Wurrung is a subgroup or clan of the Taungurung, a position she found was supported by “a brief research paper”. This was a paper entitled “NTSV Ngurai-illam-wurung/Taungurung Research Position Paper”, and states it was prepared by three people: one identified as a “senior anthropologist” and two identified as “research historians”. The paper describes its purpose in the following terms:

This position paper is in response to issues raised by the Department of Justice (DOJ) in relation to the status of the Ngurai-illam-wurrung as portrayed in the Threshold Statement of the Taungurung people (supported by the NTSV) under the Traditional Owner Settlement Act (TOSA).

57    Relying in part on this research paper, the delegate concluded that the process agreed to and adopted by those who identified as Taungurung People was sufficient.

58    From [120]-[142], the delegate considered whether the Taungurung People had in fact authorised the making of the ILUA in accordance with the agreed to and adopted process. Having reviewed the authorities which deal with s 251A and s 251B, the delegate found:

(a)    that a reasonable opportunity must be given to participate in the adoption of the particular process and the making of decisions pursuant to that process (at [121]-[123]);

(b)    that where a reasonable opportunity was given to participate, it could be inferred that those who did not participate chose not to be involved in the making of the decision (at [125]-[126]); and

(c)    that it is therefore not necessary for all native title claimants or holders to participate in the authorisation process. Citing McGlade (No 2), she found that the authorisation process “should not be scrutinised in an overly technical or pedantic way” (at [127]-[128]).

59    The delegate at [129] identified the objectors’ contentions that

some of the objectors appear to assert that a reasonable opportunity was not given as they were not identified and therefore not invited or consulted, and therefore their people have not given free, prior and informed consent to the Taungurung ILUA. In addition, Mr Murray says he was excluded from the authorisation meeting and therefore not given an opportunity to participate. There are also assertions that the 186 proxies provided were not taken into consideration.

60    However the delegate found that, given the steps taken by First Nations Legal, the objectors had not satisfied her “that a reasonable opportunity was not afforded ‘to participate in the adoption of a particular process and the making of decisions pursuant to that process’”: at [134].

61    Finally, the delegate turned to the conduct of the meeting and the process of authorisation of the agreement. At [136]-[137] the delegate found:

I consider the decision of Ward v Northern Territory [2002] FCA 171 (Ward) to be relevant to my consideration in relation to the conduct at the authorisation meeting. In Ward, O’Loughlin J identified deficiencies in the information provided in that matter regarding the authorisation process and listed a number of questions which in substance were required to be addressed. The questions identified by O’Loughlin J, which do not need to be answered in any formal way, are:

Who convened it and why was it convened? To whom was notice given and why was it given? What was the agenda for the meeting? Who attended the meeting? What was the authority of those who attended? Who chaired the meeting or otherwise controlled the proceedings of the meeting? By what right did that person have control of the meeting? Was there a list of attendees compiled, and if so by whom and when? Was the list verified by a second person? What resolutions were passed or decisions made? Were they unanimous, and if not, what was the voting for and against a particular resolution? Were there any apologies recorded?

O’Loughlin J considered that it was only necessary for the substance of these questions to be addressed. In my view, the substance of those questions has been addressed in the material provided.

(Footnotes omitted.)

62    The delegate proceeded to answer, in broad terms, the questions posed by O’Loughlin J in Ward extracted above, based largely on information provided in the notice of the authorisation meeting, which is also before the Court. At [140] the delegate stated:

In my view, the conduct of the meeting was such that those present resolved to use the agreed and adopted decision making process, and, while the specific details of the process has not been provided, it is indicative that the actual process was participative and inclusive, allowing those present an opportunity to participate. For instance, the persons who were present were able to consider the proposed resolutions that were put to the floor, and participate by deciding whether or not to pass the resolutions. I also consider that the members of the Taungurung people voted in support of the resolutions to authorise the ILUA.

63    Accordingly, the delegate concluded that the first condition of s 24CK was met.

The second condition: s 24CK(3)

64    The second condition was dealt with briefly by the delegate, who found (at [144]-[148]):

The second condition for registration of an area agreement is contained in s 24CK(3), which provides:

The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement.

The requirements of this provision are to be considered at the time the Registrar proposes to register the agreement.

The geospatial end of notification overlap analysis does not identify any registered native title bodies corporate in relation to any area subject to the agreement. My own searches of the Tribunal’s databases confirm this.

I am satisfied that there are no registered native title bodies corporate in relation to the agreement area.

I find that the second condition of s 24CK is met.

65    This conclusion is not disputed by the applicants and is not subject to any ground of review.

Application for judicial review

The grounds of review

66    The application for judicial review contains seven grounds:

2.    The decision and the reasons for decision involved the following error or errors of law:

2.1    the Applicants were denied procedural fairness in being denied access to the Threshold Statement (reasons [94]).

2.2    The Delegate erred in law in imposing the onus upon the Objectors. The Delegate correctly cited authority that her task was “to consider whether all reasonable efforts had been made to ensure that those who hold or may hold native title over [the agreement area] have been identified” (reasons [83]) but did not consider all the evidence relevant to that question and that the Delegate was bound to consider in making her decision. Instead, the Delegate placed an onus upon the Applicants to satisfy her “that all reasonable efforts have not been made would require the objectors to show that the efforts to ensure all persons who hold or may hold native title in the area have been identified were wanting such that the efforts and subsequent views cannot be said to be reasonably based” (reasons [85]). In so doing, she misconstrued what the notion of “onus” means in the law relating to administrative decisions and imposed on the Applicants a stringent requirement of disproof which was impermissible.

2.3    The Delegate asked herself the wrong questions, by accepting as determinative, the reliance of First Nations for its notification and certification functions upon its Database of more than 150 people (reasons [88], and [94], and notice being sent to only to those people (reasons [130] and [131]) in circumstances where, in accordance with the relevant provisions of the Act, the correct question on which the Delegate had to be satisfied was whether “all reasonable efforts” were made to notify to all persons who hold or may hold Native Title. There was a live and central factual issue that was required to be determined by the Delegate as to whether there were a group or groups of indigenous people not on the Database but who reasonably claimed to hold native tile rights and interests over parts for the area the subject of the ILUA that had been ignored or overlooked in the authorisation process. The Delegate failed to engage this issue or determine it.

2.4    The Delegate erred in accepting the submissions of First Nations as to research into the composition of the landowning group and the apical ancestors of the group (reasons [86] and [87]) as determinative of whether a broader definition that of “all persons who hold or may hold Native Title” was the correct enquiry. That enquiry was required to be conducted on the basis of evidence which was not put before the Delegate and on which the Applicants were given no opportunity (as procedural fairness required) to address in their submissions.

2.5    The Delegate erred in categorising the Applicants’ Affidavit evidence as “assertions” when that evidence was “sworn evidence” and was not challenged (reasons [69]). That Affidavit evidence was directly relevant to the identity of the 180 people who had provided proxies (Gardiner Affidavit [23], [32]), Peters Affidavit [42], Thorpe Affidavit [26]) the validity of some of the identified Ancestors and their acknowledged areas of country (Gardiner Affidavit [20] , Peters Affidavit [36], [37], [52], [54], [55], Thorpe [5], [12], [19] ) the deficiencies of the notice process for the Authorisation meeting (Peters Affidavit [31], [41], [46] Gardiner Affidavit [29], Thorpe Affidavit [14], [24], [39]. By reason of the approach to those affidavits taken by the Delegate she failed to take the information contained in them into account in any realistic sense, as she was bound to do.

2.6     The Delegate erred in accepting submissions from First Nations as to the conduct of the authorisation meeting without any or any reliable evidence noting that “specific details of the process has not been provided” (reasons [140]) and not taking into account as relevant considerations the Affidavit evidence of the Applicants with respect to that process.

2.7     The Delegate’s decision was also both unreasonable and irrational.

(Footnotes omitted.)

The applicants’ submissions in summary

67    A recurring theme of the applicants’ submissions is that First Nations Legal has failed to consider and represent them as persons who may hold separate native title from the Taungurung over parts of the area covered by the ILUA, and that this failure was not appropriately addressed by the delegate in the registration process.

68    In their written submissions from [7]-[11], the applicants set out the role of First Nations Legal as a representative body under the Act, by reference to the decisions in Kemppi and Quall FCAFC. They then summarise their contentions (as I understand they contend they put to the Registrar) as to their claimed native title in the area central to the dispute at [12]:

a)    Taungurung country is on the Upper Goulburn, upstream from Seymour, including the towns of Alexandra, Yea, Mansfield, Seymour and Broadford;

b)    Ngurai Illum Wurrung country is known as the Middle Goulburn, that is the country to the north and west of Seymour extending west to the Campaspe River and Murchison, and north to about Mooroopna;

c)    Waywurru country is around Wangaratta on the Ovens River and Dhudhuroa land is an area on the Ovens River, upstream from Myrtleford.

69    As I have explained, with the exception of Mr Murray, each of the applicants identifies as Ngurai Illum Wurrung or Waywurru, or both. These are not the only traditional descent connections each of them claim, but they are the relevant ones for the purposes of this proceeding. A significant proportion of the applicants’ submissions summarise and emphasise the contents of some affidavits prepared and filed in the Supreme Court proceedings, but which were also sent to the Registrar as part of the applicants’ material upon which their objections were based. These affidavits are expressly relevant to ground 5 of the application, but I have formed the view they are of considerable importance to several grounds of review, and were of considerable importance to the delegate’s task. The affidavits are all affirmed or sworn on 22 November 2019 and the deponents are Mr Murray, Ms Thorpe, Mr Peters and Ms Xibberas.

70    A difficulty with the structure of the applicants’ submissions is that it was at times unclear which ground of review a particular submission was directed to. It has been something of a challenge to adequately summarise the way the applicants put their arguments on each ground. It does appear there were minimal written submissions on some of the grounds of review.

Ground 1: denial of procedural fairness

71    The applicants accept they had a copy of the summary of the Part A Threshold Statement. However they contend that was insufficient. They contend the materiality of the Part A Threshold Statement can be seen from the fact that the First Nations Legal submissions with respect to “all reasonable efforts” relied upon the TOS Act processes, and also that the State submissions to the delegate relied upon its processes under the TOS Act. Integral to those processes, the applicants contend, was the Part A Threshold Statement.

72    The applicants contend the respondents should concede that the differences between the Part A Threshold Statement and the public summary document are significant. They rely on the reasons for judgment of Richards J in Gardiner VSC at [32]-[37] , where her Honour found at [37]:

It is apparent from the Attorney-General’s reasons and Mr Cowie’s affidavit that resolution of the plaintiffs’ Charter claim will be assisted by information contained in the Statement. In particular, the research findings required to be included in item A5 of the Statement appear to have informed the Attorney-General’s decision to enter into the RSA with the Taungurung, notwithstanding the asserted interests of the Ngurai Illum Wurrung and the Waywurru in parts of the RSA area.

73    The Supreme Court proceeding is an application for judicial review of the Victorian Attorney-General’s decision to enter into the recognition and settlement agreement, under s 4 of the TOS Act. At [4], Richards J describes the proceeding thus:

[The applicants] do so based on a statement of reasons provided by former Attorney-General Martin Pakula, dated 28 February 2019. They seek declarations that the decision to enter into the RSA was unlawful and incompatible with their cultural rights protected by s 19(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). They also seek orders quashing the decision and compelling the Attorney-General to make a further decision according to law.

74    In that proceeding, the Attorney-General relies on an affidavit of Dean Cowie made on 30 July 2019, to which the applicants’ affidavits described at [69] above are in part responsive. Neither the Attorney’s reasons, nor Mr Cowie’s affidavit, are before the Court in this proceeding, nor were they before the Registrar’s delegate.

75    The applicants contend that the failure to provide the Part A Threshold Statement to them before the delegate’s decision meant they could not provide further evidence to the Registrar answering what was in the Part A Threshold Statement.

76    The applicants also submit the delegate’s reliance on the onus which she found lay with the applicants under s 24CK(2)(c) was no answer to the denial of procedural fairness, contrary to the delegate’s finding.

Ground 2: onus

77    In their reply submissions, and picking up some of the observations made by the High Court in the recent decision Northern Land Council v Quall [2020] HCA 33, the applicants summarised their contentions on ground 2 in the following way:

That the onus is upon the objectors is not in dispute. The Submissions of both Respondents incorrectly rely upon onus to transform the function of the Registrar from reviewing the facts upon which a representative body has formed its opinion then making a decision based upon the facts, to a function that commences not with evidence but with onus. In considering afresh the facts that support the opinion the Registrar is considering the issue on its merits, following that consideration the issue is whether the facts as found are sufficient to satisfy the onus that is on the Objectors.

78    Thus, this ground appears to be linked to grounds 3 and 4; namely that the delegate misunderstood her function, and asked herself the wrong question.

Ground 3: wrong question

79    By this ground, the applicants submit that there was a “live and central” factual issue in the registration application, and the delegate’s assessment of the certification by First Nations Legal, which was whether there was a group or groups of people who were not on First Nations Legal’s database but who “reasonably claimed to hold native title rights and interests over parts for the area the subject of the ILUA that had been ignored or overlooked in the authorisation process”. The applicants submit this question needed to be engaged with, and determined, before the delegate could be satisfied that “all reasonable efforts” had been made to identify those who held native title rights and interests over the area subject to the ILUA.

80    It was the delegate’s task, the applicants submitted, to look at the information before her “holistically”, to see who had been included, and who had not. Only by this kind of process, the applicants submitted, could the delegate determine if reasonable efforts had been made to identify those who might reasonably claim to hold native title rights and interests over parts of the area the subject of the ILUA.

81    The applicants further submitted that the applicants’ attempts to identify themselves and others as native title holders in the area covered by the ILUA had been met with “a stonewalling exercise”. Both in the affidavits and then as developed in oral argument it was suggested that in the circumstances the applicants’ active efforts to engage in the research and identification process were ignored or dismissed, or said to be “too late”, and therefore it could not be said that “all reasonable efforts” had been made to identify all persons who hold or may hold native title in the relevant area.

82    As I understand it, the applicants also rely on the uncontested facts about how the Ngurai Illum Wurrung came to be treated as incorporated into, or part of, the Taungurung People, and why this was not only unfair but also wrong for the purposes of the Native Title Act, because the Ngurai Illum Wurrung held separate and distinct rights and interests under Kulin traditional law and custom to separate areas of land and waters from the Taungurung People. In their submissions to the Registrar, Holding Redlich said on behalf of the applicants:

We maintain the position that the Ngurai Illum Wurrung objectors were denied the opportunity to object to being incorporated within the Taungurung claim. In this regard, we say that the circumstances which led to the incorporation of the Ngurai Ilium Wurrung group within the Taungurung claim are relevant. In particular, as previously noted, the decision to incorporate the Ngurai Illum Wurrung apical ancestors within the Taungurung claim was made at a meeting in Seymour in 2012 attended by 14 people.

83    A similar position is said by the applicants to have existed in relation to first, the inclusion of Tooterie as an apical ancestor, and then her removal at the authorisation meeting, without any alteration to the country covered by the Taungurung area ILUA. These matters are dealt with extensively in the affidavits, and the applicants contend the Registrar did not “consider” them in the way the law requires. Rather she simply listed them and did not engage with their contents, or the issues they raised.

84    The applicants also contend:

The Registrar cited QGC Pty Ltd v Bygrave (No 3) (2011) 199 FCR 94 (Bygrave No 3) that the expression “persons who hold or may hold native title” is to be construed “expansively and inclusively” but does not apply it to the facts. The approach of implicitly rejecting a large number of people whilst not disputing their links to Apical Ancestors is the opposite of an expansive and inclusive approach.

(Emphasis original.)

Ground 4: correct inquiry about who were “all persons who hold or may hold Native Title”

85    Under this ground, the applicants submit that they put evidence before the delegate about their claimed connection to apical ancestors for parts of the claim area, and the finding by the delegate that it did not matter that Ms Thorpe, Mr Peters and Ms Layton were not on the database, together with the finding that there had been some research undertaken in order to compose the database, was an insufficient basis to support the delegate’s conclusion that “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”.

86    They contend that First Nations Legal’s database was relied on heavily by First Nations Legal, the State and the delegate, but was obviously deficient, given the affidavit evidence of three of the applicants and of Ms Xibberas, which was not challenged. They contend, again relying on the affidavit evidence that other forms of identification used (such as newspaper advertisements) were obviously inadequate and did not reach large numbers. Although they do not appear expressly to advance argument based on the use of proxies (which was disallowed by a vote at the authorisation meeting), they do appear to contend that the existence of a large number of proxy voters (186) is evidence of how deficient the efforts of First Nations Legal were in identifying all those who may hold native title in the ILUA area: see, for example [31], [49] and [50] of the applicants’ written submissions.

Ground 5: delegate’s approach to the objectors’ evidence before the delegate

87    In the attachment to her decision, the delegate provides a summary of what she calls “Procedural Fairness Steps”. Listed in that attachment is a letter from Holding Redlich dated 28 November 2019. That letter enclosed four affidavits filed in the Supreme Court proceedings and which I have described at [69] above. The applicants submit:

Section 24CK(4) requires the Registrar to take into account, as a mandatory relevant consideration, any information that the appellants gave in support of their objection and the certificate. The information was relevant and compelling as it was provided by Affidavit. The decision not to consider it was an error of law.

88    Instead, the applicants contend the delegate made few references to these affidavits, treating them as “assertions” when they were sworn evidence, and made “no attempt to make findings where there is conflict in the evidence”. I infer this refers to conflicts between what is in the affidavits, and the submissions presented by First Nations Legal and the State, as well as (for example) the research paper provided to the Registrar by First Nations Legal. What was in the affidavits was said by the applicants to be critical to their case to the delegate as to why First Nations Legal had not made reasonable efforts, as well as to whether she should be satisfied of the second limb in s 203BE(5) about who had authorised the ILUA.

Ground 6: failure properly to consider the conduct of authorisation meeting

89    As argued, although not as expressed, this ground appears to relate to the position of Mr Murray in particular, who was excluded from the authorisation meeting, on the basis that he was “determined” (it is unclear by whom) not to be a person who holds or may hold native title in the area covered by the ILUA. Since late 2018, in the lead up to the meeting, at the meeting and subsequently in his affidavit, Mr Murray contended he was a member of the Dhudhuroa People, whose country extends into the ILUA area.

90    In his affidavit at [15], Mr Murray describes Dhudhuroa country in the following terms:

I believe Dhudhuroa Country comprises the Country on either side of the Murray River above Wodonga, the Mitta Mitta River, the Kiewa River, the Ovens River above Myrtleford and the Snowy River near the New South Wales/Victoria border. It includes the towns of Bright, Harrietville, Porepunka, Woragee, Buckland Valley, Wodonga, Beechworth, Barwidgee Creek, Mt Buffalo, Omeo, Corryong and Barnawartha.

91    The applicants submit the delegate again failed to properly perform her task by not engaging in any real way with the question whether this claim meant he should properly be seen as a person who may hold native title in the ILUA area and therefore should have been admitted, and permitted to speak. This was, the applicants contend, a necessary part of the delegate’s task in deciding afresh whether all reasonable efforts had been made to identify those who may hold native title in the ILUA area.

92    The ground as expressed also concerns the way the delegate treated the four affidavits. Insofar as this allegation overlaps with ground 5, I have considered it under ground 5.

Ground 7: legal unreasonableness and irrationality

93    At the hearing, the applicants’ counsel confirmed that this ground was intended to draw together the arguments on the other six grounds to contend, in substance, that no rational and reasonable delegate exercising the power in s 24CK could have reached the conclusion the delegate reached. Counsel confirmed no new or different arguments were put under this ground.

Reply submissions

94    In their reply submissions, the applicants focussed more particularly on the arguments put against them, and those submissions were of considerable assistance in understanding the applicants’ arguments. Where appropriate I refer to them in detail in the resolution section below.

Summary of the submissions by the Taungurung Land and Waters Council and the State

95    The TLWC submits that the application for judicial review “in substance, seeks impermissible merits review of the decision and ought to be dismissed”. The State’s case is in effect the same. I have here summarised, in general, the submissions of the TLWC, and noted where the State made submissions that differed or added to those submissions.

96    Relying on the High Court decision in Quall HCA, the TLWC submit the burden is on an objector to satisfy the Registrar that one of the elements of s 203BE(5)(a) is not met. It is useful to set out here the paragraph extracted by the TLWC (with the party’s emphasis) (Quall HCA, at [5]):

…Faced with an unwithdrawn objection, the question for administrative determination by the Registrar is whether (having regard to information provided by the person making the objection and the representative body concerned) the Registrar is satisfied by the objector that 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 ILUA have been identified or that one or more of the persons who have been identified have not authorised the making of the ILUA. If the Registrar is so satisfied, the Registrar must not register the ILUA.

97    The TLWC then made a series of submissions about the proper interpretation of ss 24CK and 203BE(5):

(a)    Citing Kemppi at [79]:

the Registrar has a materially different function to a representative body with respect to s 203BE(5). The representative body must form and state its opinion (with brief reasons) that both requirements in s 203BE(5) have been met. By contrast, the Registrar’s function, pursuant to s 24CK(1) and (2)(c) in dealing with an objection to registration is to form a state of mind, namely satisfaction, about whether the objectors have established that one or both of the requirements in s 203BE(5) were not satisfied.

(b)    Relying on McGlade (No 2) at [30]-[31] (citing Bright at [49]) and Kemppi at [84]:

the onus of demonstrating that the requirements of s 203BE(5) were not satisfied lies with those who make the objection under s 24CI. The statute requires (in relation to this onus) a demonstration that s 203BE(5)(a) and (b) of the NT Act have not been satisfied rather than an absence of certification or an absence of opinion justifying the certification.

(c)    Citing McGlade (No 2) at [230] and Kemppi at [79]:

importantly, s 24CK is not so wide as to require (or empower) the Registrar to consider whether he or she is satisfied that the requirements of s 203BE(5) were or were not met. The task is confined to considering whether an objecting party has satisfied the Registrar that those requirements were not met. The task is therefore necessarily directed to the bases and contentions made by an objecting party about those matters.

(d)    Citing McGlade (No 2) at [170] and [228], Kemppi at [66] and Bright at [136] and [154]:

the requirement in s 203BE(5)(a) to expend “all reasonable efforts” will vary with the facts and circumstances. In considering s 203BE(5)(a) for the purposes of s 24CK(2)(c), the Registrar is not to consider whether an objecting party has satisfied the Registrar that a person who holds or may hold native title in an agreement area was not identified as such a person. Rather, if all reasonable efforts have been made and some persons have, by that process, been excluded, the Registrar is not entitled to refuse registration of an ILUA. Moreover, s 203BE(5)(a) does not necessitate that any claim made by a person to possess native title rights and interests in an ILUA area is accepted without scrutiny or consideration. The expression “who…may hold native title” in that section incorporates a notion of reasonableness.

98    The TLWC emphasised that the scope of the obligation on the Registrar did not require the Registrar (or delegate) to refer to every piece of evidence in her or his written reasons, to accept as truthful any contention put or to take into account information that is not “in relation to the certification of the application”, being the first condition of s 24CK(2). The TLWC submits that this is the proper context in which to consider the grounds of review raised by the applicants. The State’s submissions echoed this proposed construction.

Ground 1

99    The TLWC submits that this ground “cannot be sustained for two reasons”.

100    First, because the Part A Threshold Statement was not before the delegate. TLWC relied on Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [83]:

the obligation of procedural fairness materially requires “that a person whose interest is apt to be affected be put on notice of…the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person”.

101    Since the Part A Threshold Statement was not before, and therefore not considered by, the delegate, the fact the statement was not available to the applicants prior to the delegate’s decision could not constitute a denial of procedural fairness.

102    Second, the TLWC submitted that “the ground misconstrues the function of the delegate under s 24CK of the NT Act”, because the Part A Threshold Statement was not relevant to the task of the delegate. That is because her task was limited to asking whether the objectors, and the contentions they brought, had satisfied her that the criterion had not been satisfied. In other words, the objectors had to persuade the delegate there had not been reasonable efforts, and the contents of the Part A Threshold Statement – not concerning the conduct of First Nations Legal – could not advance this issue.

103    The TLWC also adopted the submissions of the State on this ground. The State contended that the applicants “misunderstand and overemphasise the importance and role of Part A of the Threshold Statement”. The State claimed the statement

does not have the function for which the Applicants contend (Applicants’ Submissions [57]). It did not control any process or outcome under the TOS Act or the NTA, rather it merely drew together research work as at a particular time (1997 to 2013) and set in train a further process of consultation, research, evaluation and negotiation (2014 to 2018). Much work and consultation relevant to the efforts required by s 20[3]BE(5)(a) was done both before and after the preparation of the Threshold Statement.

104    The State described the research process set out in the summary threshold statement that was available to the applicants. It then contended the applicants further misunderstood the function of the Part A Threshold Statement, in that:

(a)    the Part A Threshold Statement did not determine entry into the ILUA or conclude any issue about the proper native title holders for the ILUA area; and

(b)    the document was part of a “much more extensive process” of submissions, research and consultations, which process the State detailed in its submission.

105    Finally, the State argued that the interlocutory decision in the Supreme Court proceedings, requiring the production of the Part A Threshold Statement, and upon which the applicants relied, is not relevant to any procedural fairness argument in this proceeding. The decision of Richards J related to the relevance of the Part A Threshold Statement to a different inquiry, about a different decision-maker.

The State’s submissions on Grounds 2-6

106    The State’s submissions grouped grounds 2-6 together, stating that these grounds “all turn on an analysis of the Registrar’s reasons for decision”. The State urged the Court to consider each of these grounds in the context of the well-known description in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 about the correct approach to judicial review involving the reasons of an administrative decision maker.

107    In addition to these comments, the State addressed each of these grounds individually. Where appropriate I describe its contentions below.

Ground 2

108    The TLWC noted that the applicants accept that the onus falls on them to satisfy the delegate that the requirements of s 203BE(5)(a) and (b) had not been met, and contends that the section does not additionally require the parties to the agreement to first satisfy the delegate that the requirements had been met.

109    The TLWC contended that this ground is “nothing more than an impermissible invitation to this Court to engage in merits review”.

110    The State additionally contended that the Registrar properly applied s 203BE(5) as described in McGlade (No 2), and referred to this test at [42]-[44] and [81]-[85] of her reasons. The task for the objectors, on the State’s construction, was correctly summarised by the Registrar as being to show that “the efforts … were wanting such that the efforts and subsequent views cannot be said to be reasonably based”.

Ground 3

111    The submissions of the TLWC identified some confusion in the applicants’ expression of this ground:

Ground 2.3 complains that the delegate asked herself the wrong question by contending that the delegate was required to be satisfied whether all reasonable efforts were made to notify all persons who hold or may hold native title in the area covered by the ILUA. The ground, as specified in the OA, appears to focus on notification by First Nations of 150 members of the Taungurung People that were recorded in its database. But the ground, as developed in the AS, appears to focus on four affidavits provided by the applicants under cover of letter dated 28 November 2019 that it is asserted were not considered by the delegate.

112    The State similarly noted that it was not clear that the ground as expressed in the originating application was pressed in the applicants’ submissions. The TLWC then contended that there are four reasons that this ground fails:

(a)    On the construction of the legislative scheme that the TLWC contends is correct, the delegate asked herself the correct question, namely whether the objectors had satisfied her that the requirements of s 203BE(5)(a) of the Native Title Act were not satisfied.

(b)    The notification process undertaken by First Nations Legal was not limited to the 150 persons on its database, but included notification of the authorisation meeting in 5 newspapers, and the sending of letters to identified individuals including Ms Gardiner and Mr Murray.

(c)    The delegate did consider the material provided by the applicant, including the four affidavits. The affidavits are referenced in Attachment A, which was said at [12] of the decision to list the material considered by the delegate.

(d)    The TLWC contended that because the applicants in fact engaged with, and participated in, the authorisation process, “any error in the question the delegate asked herself was immaterial in that it could not have resulted in a different outcome”.

113    The State’s submissions additionally engaged with this ground as expressed in the originating application; that is, as being a complaint that the delegate improperly considered notification of individuals included in the First Nations Legal database to be determinative of the question whether “all reasonable efforts” had been made. In this, the State contends, the ground

seeks impermissibly to conflate the legal question of the correct test (whether the Objectors showed that all reasonable efforts were not made or that all the persons so identified did not authorise the making of the agreement) with the factual matters which the Registrar considered in answering that question.

114    The State submits that this ground fails because:

(a)    notification of the individuals contained in the database was relevant to the requirements of s 203BE(5)(a) because the database “encapsulates the efforts [of First Nations Legal]” to identify holders of native title; and

(b)    the delegate’s consideration of the database was not determinative, and “the Registrar’s decision demonstrates that she accepted the evidence that the database was but one aspect of a more extensive process”. The State referred to the delegate’s decision at [89], where the delegate listed the steps taken in the “notification and consultation process” under the TOS Act in support of this proposition.

115    The State also addressed the applicants’ general claim that they were “shut out” of the ILUA and authorisation process, and submitted it is

unsustainable in light of the very history of submissions and engagement that the Applicants describe and the detailed consideration given to the matters raised by the Applicants at each stage of the process, including during the process under the TOS Act. The complaint demonstrates that it is a debate over outcome, not over whether the Registrar correctly applied s 24CK(2)(c) of the NTA.

In like vein, the submissions repeatedly assert that individuals identifying as Ngurai Illum were excluded from the TOS process. That is not the case. As the material before the Registrar made clear, after research by FNLRS, the Ngurai Illum were assessed to be a part of the Taungurung, and in consequence were entirely at liberty to participate in the authorisation process, and in many instances did so.

Ground 4

116    The TLWC contends that ground 4 must fail because:

(a)    The applicants who identify as Ngurai Illum Wurrung were not, and on a proper construction of the applicants’ grounds of review and submissions do not claim they were, excluded from the notification process. Rather, their complaint is that the Ngurai Illum Wurrung were not distinguished from the Taungurung, and as a result sought to exclude themselves from the authorisation process.

(b)    It is not part of the delegate’s task to “identify who actually holds native title in relation to the area covered by the ILUA”. As noted above, the task of the delegate on the TLWC’s construction was only to consider if the objectors satisfied her that the requirements of s 203BE(5) were not met.

117    In oral argument, the TLWC drew the Court’s attention to the notice of the certification meeting and the inclusive terms it used in inviting attendees, being “people who hold or may hold native title in the area shown”. Counsel submitted that the delegate made explicit reference to these terms at [90] of her decision and that this is evidence of the “expansive approach” taken with respect to the authorisation process.

118    The State similarly understood this ground to be an argument that the delegate “adopted the conclusions of particular research by FNLRS” and contended that it must fail on the basis that there is no evidence for this in the delegate’s reasons. It submitted that the delegate correctly understood that she was not required to “consider” or “weigh” First Nations Legal’s research and to form her own opinion on its correctness, but to consider “whether the objectors satisfied her that there were inadequacies in the efforts made such that the opinions in the certification could not be said to be reasonably based”.

Ground 5

119    The TLWC characterised this ground as a complaint that:

the delegate erred in categorising the applicant’s affidavit evidence as “assertions” when the evidence was sworn evidence that was not challenged. The substance of the contention appears to be that the use of the word “assert” denoted that the material had not been taken into account.

120    The TLWC contended that “[t]aking a matter into account does not necessitate that the matter is then required to be accepted by the decision-maker.” The use of the term “assertion” rather than “sworn evidence’ to describe the material provided by the objectors was “at most … an example of mere ‘unhappy phrasing’”. It notes that “the delegate used the term “assert” or a derivation of it over 100 times in her reasons and did so in respect of what was put by each objector, the State and First Nations”.

121    Counsel for the TLWC at the hearing submitted that to the extent the contents of the affidavits was relevant to “the merits of the ILUA or ultimate questions of native title”, they were irrelevant to the delegate’s task and beyond her power to consider. This being the case, the delegate nonetheless did have regard to the affidavits and the material they contained, and appropriately found that they went to issues she could not properly decide. Counsel drew the Court’s attention to [69] and [92] of the delegate’s decision in support of this contention.

122    The State contended that:

there is a puzzling inconsistency between ground 2.5 (which proceeds on the basis that the affidavits were considered by the Registrar, but given lesser weight) and the Applicants’ Submissions (at [62]) that the affidavits were not taken into account at all. This submission is difficult to understand in light of the Registrar’s clear statement that:

The information that I must have regard to is any information given to the Registrar by the objectors and by the representative body or native title service provider that certified the application, being First Nations Legal & Research Services (First Nations). I also may, but need not, take into account any other matter or thing. The weight, if any, to be given to such considerations that are not mandatory is entirely a matter for the Registrar.

I have taken into account the following material in coming to my decision:

The material provided to the Registrar during the process of procedural fairness (see Attachment A …)

As noted, Attachment A included the four affidavits.

123    The State submitted that the affidavits had been considered to the extent that they were relevant, and that, appropriately for an administrative process, the affidavit material was not “afforded greater or lesser weight because it was sworn”. The delegate properly weighed the claims in the affidavits against the other evidence before the delegate about the “efforts to identify the persons who hold or may hold native title” and “concluded that all the claims to hold native title were the subject of ‘comprehensive inquiries’”. The State contends that this ground, by “attempting to introduce the question of facts disclosed in the affidavit material” strays impermissibly into merits review.

Ground 6

124    The TLWC understood this ground as encompassing two complaints, being that the delegate erred:

(a)    in accepting the submissions from First Nations as to the conduct of the authorisation meeting without any or any reliable evidence; and

(b)    by failing to take into account as relevant considerations the applicants’ affidavit evidence with respect to that process.

125    The TLWC submits that “relevant considerations” in this context are those raised by “information given by the applicants in relation to the matter”, as required by s 24CK(4). It contends that it is apparent on the face of the record that the delegate did so, and draws the Court’s attention to paragraphs [12], [69], [72], [104], [107] and [133]-[134] of the delegate’s decision in substantiation of that claim. The State similarly submits that the contention that the delegate proceeded on the basis of no evidence is baseless.

126    On the TLWC’s submission, this ground is another instance in which the applicants have misunderstood the function of the delegate under s 24CK. It submits that this is evident because “the assertion is, in effect, that the delegate was required to satisfy herself that the requirement in s 203BE(5)(b) was satisfied.”

127    The TLWC also identified arguments made by the applicants at [72] of their submissions, said by the TLWC to be ‘unconnected to a ground of review’. Paragraph [72] relates to an argument that the delegate erred in failing to consider whether Mr Murray was a person who holds or may hold native title in relation to the area covered by the ILUA. The TLWC submit that the delegate did consider this issue, and at [133], “preferred the view that Mr Murray is not a person who holds or may hold native title in the ILUA area”.

Ground 7

128    The TLWC characterises this ground as “an unparticularised assertion of legal unreasonableness untethered to any particular complaint”. Relying on NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37], it submits that “the failure to particularise a ground of review is itself a sufficient basis to dismiss it”. To this end, the TLWC brings the Court’s attention to the description of what is required to establish legal unreasonableness as a “demanding standard” (in TTY167 v Republic of Nauru [2018] HCA 61; 362 ALR 246 at [24]) and submits that, without further submissions from the applicants, the assertion of unreasonableness is “well short of what is required of the applicants to discharge their burden on judicial review to establish error”.

Resolution

A late raised issue

129    On the morning of the hearing, senior counsel for the TLWC raised what she submitted was a significant impediment to the grant of relief to the applicants, even if this Court were persuaded that any or all of their grounds of review should be upheld. She submitted:

The ILUA, in question, was entered into the register of the ILUAs on 30- 35 April 2020, and with this morning, is now through the court a copy of the extract from the register. As your Honour may be aware, the power to remove a register from an ILUA is contained in section 199C of the Act and, relevantly, in subsection (c)(3), the Federal Court has power to remove an ILUA from the register, in the circumstances set out subsection (2) which concern it being established that there exists fraud, undue influence or duress, in relation to the making of the agreement. And the mechanism by which such an order is given effect, is an application made under Rule 34.110 of the Federal Court Rules.

In the first respondent’s submission, this raises a live issue as to the powers of the court in the event that the grounds of review are made out. It’s a matter that was dealt with by the Full Court, in the decision of [Kemppi], albeit in the somewhat differen[t] circumstance[s] and in circumstances where the Full Court didn’t ultimately have to decide the issue. The case appears at document number 13 in the joint bundle, and the relevant passage is at paragraph 103 to 106 of the judgment. I simply raise it, at the outset, on the basis that I’m conscious it’s a matter that hasn’t been previously raised or dealt with, in written submissions. I’ve raised it with my learned friends, this morning, and we’re in the court’s hands. But we would be content to deal with it, on the basis of written submissions, after the hearing today, if that was a matter that was convenient to your Honour.

130    I expressed my dissatisfaction with the fact the TLWC raised this on the morning of the hearing, when it was a point favouring both respondents and should have been raised at the outset. I indicated that the matter would be dealt with, if necessary, once the Court had given its decision on the grounds of review. Since the Court has upheld some of the grounds of review, it will be necessary to address that matter. The parties will not only need to address the terms and proper construction of s 199C of the Native Title Act, but also the principles about nullity of administrative decisions, explained by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwarj [2002] HCA 11; 209 CLR 597 and explained and developed in several authorities since then.

131    This delay will also affect the related proceeding in the Supreme Court, which as noted above is stayed until after the determination of the proceedings in this Court.

General findings

132    Two general points should be made immediately.

133    First, it is common ground, and well established in the authorities that what constitutes the expenditure of “all reasonable efforts” to identify those who hold or may hold native title will vary with the facts and circumstances: see McGlade (No 2) at [49] and [170]. In some circumstances, what a representative body may need to do before certifying an ILUA for the purposes of s 203BE(5) may be modest, because of the amount of work which has preceded an ILUA process, for other native title purposes. At one end of the spectrum, there may be a determination of native title for an area. That may make the effort required by a representative body to identify who holds native title relatively straightforward. Further along the spectrum, but still requiring only modest work, would be the circumstance where a native title determination application under s 61 of the Native Title Act had been lodged by the representative body on behalf of a claim group (and certified under s 203BE(2)), and research and evidence gathering was well advanced. Similarly, even where no native title determination application had been lodged, there may have been a great deal of evidence gathering and research done over many years because (for example) of state or territory legislative requirements such as the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), or because of future act work, and existing ILUAs dealing with the same native title holding group. A further example might be where there has been a long-standing dispute about an overlap area and a lot of evidence gathering and research work has been done to try and resolve that dispute.

134    The variety of factual circumstances cannot be confined, and these are but examples. What they reveal however, is that the application of the phrase “reasonable efforts” very much depends on the individual factual situation confronting first, the representative body, and second, the Registrar. This point was made by White J in Bright at [133], in observations with which I respectfully agree:

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.

135    The factual circumstances of the Taungurung area ILUA case were unusual, as I explain below. They were not circumstances where a great deal of native title research had been done, especially on the critical question of whether the Ngurai Illum Wurrung and the Waywurru were, under customary law, separate landholding groups from the Taungurung. There was no determination of native title in favour of the Taungurung group, there was no native title application under s 61 by the Taungurung group, there were no overlapping claims under the Native Title Act, there were no previous ILUAs, there was nothing equivalent to an inquiry under the Aboriginal Land Rights Act. Second, the primary Aboriginal sources were limited, due to the dispossession and destruction of many of the landholding groups that existed at sovereignty, and the severe dislocation of generations of Aboriginal People in Victoria, including denial and suppression of their languages, their family structures, their oral histories, and their traditional law and customs. Amongst themselves, contemporary Aboriginal opinions were mixed, in conflict and – on the evidence before the Registrar – unevenly investigated and considered by First Nations Legal. Third, non-Aboriginal ethnographic and anthropological sources were thus also limited, and somewhat contradictory. There was no recent, comprehensive anthropological work which had been completed using Aboriginal informants, and which had been focussed on the definition of “native title” in s 223 of the Native Title Act. Insofar as the research paper to which I have referred at [56] (being the only research put before the Registrar by First Nations Legal), this research was not focussed on the holding of rights and interests which would satisfy the definition of native title in s 223, and on any objective view, was of a preliminary or literature review nature, with the existence of various differing expert opinions recognised in the paper itself.

136    Second, and relatedly, it is as well to recall the nature and content of the concept of “native title” under the Native Title Act, and to recall what the Native Title Act requires be established. The components for the establishment of native title, as defined in s 223 of the Native Title Act, do not differ as between a claim or application for a determination of native title, and the determination itself. That is, the legislative scheme contemplates that the native title alleged in a s 61 determination application is capable of fulfilling the requirements for a determination under s 225. The components are also no different to those required to establish that a group entering into an ILUA, including an area ILUA, is a group which holds, or may hold, common or group rights which meet the requirements of s 223. In this legislative context, allowing for the remedial and beneficial operation of these parts of the Native Title Act, the word “may” has considerable work to do, perhaps even more than the permissible standard used by a State party about a claim to native title which may be taken during the consent determination process: see Widjabul Wia-Bal v Attorney-General of NSW [2020] FCAFC 34; 376 ALR 204 at [51]. This was, in my respectful opinion, also the import of the observations made by Reeves J in Bygrave at [93]-[101] about the need for an “expansive and inclusive” approach to be taken by a representative body to the question of how to identify who may hold native title.

137    Accepting then that the ILUA provisions contemplate, by the use of the phrase “may hold native title”, that a group need not necessarily even meet the standard for a consent determination (of a “credible basis” for a determination of native title), they nonetheless still employ the concept of native title as set out in s 223, and as explained and developed in authorities of this Court and the High Court. Rather, as White J in Bright and Reeves J in Bygrave have found, the better approach to the qualitative aspects of the term “may hold native title” is that it is intended to incorporate some notion of reasonableness, allowing for a state of satisfaction for the various provisions of the Act which is less onerous than what is required for a determination of native title. In Bright at [154], White J put it thus:

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.

138    See also [156]-[168], and [169] where his Honour concluded:

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.

(Original emphasis.)

139    In none of the authorities is there any doubt that what a representative body is tasked with under the Native Title Act is to investigate and ascertain who may hold “native title”, not any other kind of links or connections to country, or any other kind of characteristics which may unite them in a cultural sense (such as language). As I have indicated, in some cases because of previous work undertaken specifically in relation to the Native Title Act or an objectively similar scheme such as the Aboriginal Land Rights Act, that inquiry may be straightforward. In other case, such as the present, it may not be.

140    On any view, those objectors who contended they held native title by reason of being descendants of Ngurai Illum Wurrung and/or Waywurru ancestors were well within this approach, as there was no dispute that what ethnographic and anthropological material existed identified these as landholding groups at sovereignty in part of the area of the ILUA. The questions were (accepting the burden was on the objectors):

(a)    whether it was appropriate, and reasonable, for First Nations Legal to have treated these groups as subsumed into the Taungurung (who were accepted to be persons who “may hold native title”); and

(b)    even if it was, whether the steps taken by First Nations Legal had been sufficiently reasonable to capture, and put on notice, all those who might be so subsumed within the overarching Taungurung group.

141    In this context, it is important to recall how the Full Court in McGlade (No 2) described the assessment of “reasonable efforts”, at [228]:

Similarly, it is “reasonable efforts” that are to be examined by the Registrar. In consideration of s 203BE(5)(a) for the purposes of s 24CK(2)(c), the Registrar is not to consider whether an objecting party has satisfied the Registrar that a person who holds or may hold native title in an agreement area was not identified as such a person. Rather, if 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: Bright per White J (at [136]).

(Emphasis added.)

142    In other words, if the representative body’s process is otherwise a reasonable one, if this reasonable process in fact excluded some people (as it was contended in McGlade (No 2) to have done in relation to some Noongar who were imprisoned at time of the authorisation process), it was nevertheless open to the Registrar to conclude the fact of that exclusion (through an otherwise objectively reasonable process) was not enough for the objectors to discharge the burden imposed by s 24CK(2)(c).

143    An ILUA is a creature of statute, created under the Native Title Act, to advance the objects and purposes of that Act, which include its remedial and beneficial objects. It seems obvious, but may have been obscured in the long negotiations leading up to the Taungurung ILUA, that an ILUA must revolve around the concept of “native title” as defined in the Native Title Act. While an ILUA may and often does incorporate outcomes relating to State or Territory law, as with the Taungurung ILUA, this fact does not dilute or set aside the applicable statutory provisions, and the concepts inherent in them, found in the Native Title Act. In particular:

(1)    Sections 24CD(1) and (3), which are applicable to the Taungurung ILUA and provide:

Native title group to be parties

(1)    All persons in the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement.

…

Native title group where no registered claimant or body corporate

(3)    If subsection (2) does not apply, the native title group consists of one or more of the following:

(a)    any person who claims to hold native title in relation to land or waters in the area;

(b)    any representative Aboriginal/Torres Strait Islander body for the area.

(2)    Section 24CH(2)(d), which provides:

(d)    include a statement that, within the period (the notice period) of 3 months after the notification day (see subsection (3)):

(i)    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; or

(ii)    if the application contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement)—any person claiming to hold native title in relation to land or waters in the area covered by the agreement may wish, in response to the notice, to make a native title determination application or equivalent application under a law of a State or Territory.

(3)    Section 24CI(1), which provides:

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.

(4)    Section 203BE(5), reproduced elsewhere but again here for convenience:

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.

(5)    Section 251A(1), which provides:

(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.

144    Thus, in all circumstances, what must be true of the group entering, and authorising the entry into, the ILUA (and what must be asserted by those objecting) is that they “may hold native title”. That is a reference to the statutory concept set out in s 223 of the Native Title Act. What must be certified under s 203BE(5) by the representative body is that:

(a)    reasonable efforts have been made to identify all those who may hold native title in the area cover by the ILUA; and

(b)    that it is those people (ie those who may hold native title) who have authorised the making of the ILUA under s 251A.

145    While there may be more than one group of people who “may hold native title” for an area covered by an area ILUA, and each group may be a party to the ILUA for the portion of the area over which they may hold that native title, the underlying purpose of requiring a representative body to identify “all those” who may hold “native title” is so that land and waters are not dealt with except by those (relevantly) with continuing interests in those land and waters under traditional law and custom. The scheme does not intend that only some groups who “may hold native title” for an area be identified, and asked to authorise the ILUA. It intends the contrary, hence the use of the word “all” – not in some absolute numerical sense, but in the sense of efforts being made to ensure that groups (or individuals) who “may hold native title” are not left out and have their country dealt with by those holdings rights and interests in different country, without a reasonable opportunity for them to participate.

146    For this to occur, the representative body must identify the “native title” which may be held over the area covered by the ILUA, and the persons who may hold it. Its efforts cannot be “reasonable” efforts if it misunderstands, or fails properly to investigate, whether the area is held under one, or more than one, native title.

147    To recall the terms of s 223:

Common law rights and interests

(1)    The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

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

Hunting, gathering and fishing covered

(2)    Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

Statutory rights and interests

(3)    Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.

Note:     Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act.

Subsection (3) does not apply to statutory access rights

(3A)    Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).

Case not covered by subsection (3)

(4)    To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):

(a)    in a pastoral lease granted before 1 January 1994; or

(b)    in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.

148    In Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69 at [23], Mortimer and Colvin JJ cited the following extract from De Rose v State of South Australia (No 2) [2005] FCAFC 110; 145 FCR 290:

In De Rose at [38]-[40], Wilcox, Sackville and Merkel JJ said:

It is hardly likely that the traditional laws and customs of Aboriginal peoples will themselves classify rights and interests in relation to land as ‘communal’, ‘group’ or ‘individual’. The classification is a statutory construct, deriving from the language used in Mabo (No 2). If it is necessary for the purposes of proceedings under the [Native Title Act] to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests. By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community. Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community.

149    And at [49] are the following observations:

In such a case, to describe the rights of a particular group as they pertain to a particular geographical area as ‘native title rights’ is not to identify those rights as being commensurate with the overall determination of native title for the area. The native title is and remains the possessory interest or belonging to the land that is commensurate with the whole of the traditional laws and customs observed as an expression of the shared and common spiritual connection to the area. Native title is the full extent of the title of the community. It encompasses all of the communal, group and individual rights and interests conferred by laws acknowledged and customs observed by people with a connection to a particular area. The identification of particular rights and interests that derive from that native title that may be enjoyed, or exercised, by the whole community or by particular groups or by particular individuals is not itself the determination of native title. Rather, it is the determination of the nature and extent of rights and interests that are particular incidents of the native title.

150    The point of referring to these passages is to re-emphasise how the identification of a native title for the purposes of s 223 is highly fact dependent, and dependent upon what the traditional laws and customs of a group provide for. Features such as language(s) spoken may be indicia contributing to an understanding of the nature and extent of a group said to be united by observance of a set of traditional normative rules that provide for rights and interests in land and are the source of connection to that land, but language will not give a complete picture. Indeed, in some cases, expert evidence and parties contentions positively assert language identity may convey little or nothing about landholding rights: Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 at [100], [105], [485]-[486], [489], [1495]. Language may in some factual settings tell one little about who holds rights to country under traditional law and custom, especially in areas where there are multiple languages spoken, where some languages are no longer vibrant, or where language identity covers a large area, and may incorporate more than one native title holding group.

151    Recently in Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 at [647], [686]-[687], [1216]-[1217], [1226] and [1229] I explored some of the issues which in my opinion also underlie the position taken by the objectors to the Registrar’s delegate, and previously taken to First Nations Legal. Those issues are, fundamentally, about what is the appropriate characterisation of information and evidence about the nature of the rights and interests at sovereignty of a group claiming native title in land, for the purposes of s 223. These observations were by reference to the following authorities: Moses v State of Western Australia [2007] FCAFC 78; 160 FCR 148; Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26; 266 ALR 537; Neowarra v State of Western Australia [2003] FCA 1402; Northern Territory v Alyawarr, Kaytetye, Warymungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442; De Rose; Mabo v State of Queensland (No 2) [1992] HCA 23; 175 CLR 1. At [1230]-[1231], I said:

It is not always the case that the evidence reveals a single, communal title, as the Full Court in Alyawarr explained (at [86]), by reference to a Queensland determination:

By way of contrast in Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland [2004] FCA 298, Cooper J made a determination of native title held severally by each of four groups in respect of discrete defined areas of land. His Honour found that the original Lardil, Yangkaal, Kaiadilt and Gangalidda peoples each occupied part of the claim area at sovereignty: (at [69]). He said (at [140]):

At sovereignty, there was no over-reaching communal system of traditional law acknowledged or customs observed with respect to the land and waters within the claim area by the applicant group as a whole, or by the groups separately, which gave any constituent group rights or interests in the traditional territories of the other constituent group. Any cross-grouping rights were held at an individual level under the specific traditional laws and customs of the constituent group in whose territory the particular land and waters were located. Any agreement made post-sovereignty by the four claimant groups to treat the determination area as a single communal area held by them jointly with four internal areas which they each held separately, is not one recognised by the Act: Yorta Yorta at [43]-[44].

Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v State of Queensland [2004] FCA 298 demonstrates that the appropriate characterisation of who holds any native title will be highly fact dependent, including dependent on proof of the situation at sovereignty, or effective sovereignty. New post sovereignty arrangements will not confer native title that is different in its structure and source from that held prior to sovereignty. In a way this is akin to the “new rule” approach in Wyman. However expressed, post sovereignty agreements (or post sovereignty claims, as in Wyman) must be sourced or rooted in pre-sovereignty traditional law.

152    Smirke itself involved a situation where one of the two opposing native title claimants for an overlap area contended their group had “succeeded” to a larger area said to have been held by estate groups at sovereignty, which in turn formed part of a broader, language based society. I mention that only to illustrate that the factual context is entirely critical to understanding how it is that a group of persons “may hold native title” over a specific area, and thus to identifying who are the persons who may hold that native title for the purposes of an area ILUA.

153    In McGlade (No 2) the Full Court made a similar point at [224]-[225]:

As the Full Court (Finn, Sundberg and Mansfield JJ) generally observed relevantly in Bodney (at [148]):

… In a given matter the existence, character and extent of native title rights and interests, whether communal, group or individual, depend upon the traditional laws and customs of the community in question. With all depending upon the content of those laws and customs: Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 3 at [536]; there is in our respectful view reason to pause in the too early embrace of a priori generalisations both as to the ordinary character and locus of native title rights and interests and as to the nature of the interconnectedness of communal rights and interests on the one hand and group or individual rights on the other. …

The s 203BE(5)(a) requirement necessitates a representative body to form an opinion whether all reasonable efforts had been made to ensure that all Aboriginal peoples or Torres Strait Islanders who hold or may hold communal, group or individual rights and interests, that meet the requirements in paras (a) to (c) of s 223(1), in relation to land or waters in the area covered by the relevant ILUA, have been identified.

154    Factually, in McGlade (No 2), there were six ILUAs which together covered a large part of the South West of Western Australia, described at [8] of McGlade (No 2) as:

(a)    the Wagyl Kaip and Southern Noongar Indigenous Land Use Agreement, WI2017/014 (the Wagyl Kaip & Southern Noongar ILUA);

(b)    the Ballardong People Indigenous Land Use Agreement, WI2017/012 (the Ballardong People ILUA);

(c)    the South West Boojarah #2 Indigenous Land Use Agreement, WI2017/013 (the South West Boojarah #2 ILUA);

(d)    the Whadjuk People Indigenous Land Use Agreement, WI2017/015 (the Whadjuk ILUA);

(e)    the Gnaala Karla Booja Indigenous Land Use Agreement, WI2015/005 (the Gnaala Karla Booja ILUA); and

(f)    the Yued Indigenous Land Use Agreement, WI2015/0019 (the Yued ILUA).

155    However, it was common ground that each of the groups who made the six ILUAs identified as part of the Noongar People. Indeed, one of the arguments in McGlade (No 2) (by those described in the Court’s reasons as the “Mackay applicants”) was that the subject of each of the ILUAs was native title held by all Noongar people, yet the notices inviting attendees to each authorisation meeting did not invite all Noongar people who held that native title to the meetings to consider the six ILUAs, but only those people within each of the groups identified for each ILUA (see McGlade (No 2) at [11]). At [208]-[209] in McGlade (No 2), the Full Court set out how the representative body in that case (the South West Aboriginal Land and Sea Corporation) had explained, and reasoned, that there needed to be six ILUAs, notwithstanding people within all the groups identified as Noongar:

As noted in the Registrar’s decision the same objection as raised in the Mackay applications was raised by Mr Miller. The Registrar noted (at [97]) that SWALSC had asserted that although there exists a single Noongar society in the Settlement Area at sovereignty, this does not mean that all descendants of that society hold or may hold native title in relation to the whole of the Settlement Area. This is one of the reasons for the various separate registered claims underlying this Settlement Area and the split of the Settlement Area into six separate regions with six related ILUAs to implement the Settlement. As noted, the Registrar records (at [99]):

[99] In their submissions, SWALSC and NTAG assert that all of the people identified and invited to attend the authorisation meeting were registered claimants or other claimants with a sufficiently ‘credible claim’ to be appropriately regarded as being common or group rights holders. Therefore the persons who hold or may hold native title in relation to the agreement area were the Wagyl Kaip and the Southern Noongar registered claimants, and the other claimants being the NTAG, Single Noongar claim groups and theWagyl Kaip—Dillon Bay People claim group. SWALSC and NTAG submit that the other claimants should be regarded as being common or group right holders because:

•    the members of the NTAGs are the descendants of the apical ancestors whom the latest research has connected to the relevant agreement area with more certainty than had been possible given the state of anthropological knowledge when many of the registered Noongar Claims were filed;

•    the SRP2 claim has been adjudged by the Registrar to have satisfied all of the merit-based elements of the registration test and therefore the members of the claim group were identified for each of the four agreement areas overlapped by the claim;

•    the Single Noongar Claims could not be registered but the Single Noongar Claim 1 was the subject of the positive determination (at firstinstance) in Bennell; and

•    membership of the claim groups for WAD33/2007 Wagyl Kaip — Dillon Bay People claim is coextensive with that for the (registered) Southern Noongar Claim.

(Citations omitted.)

The Registrar also noted that SWALSC and NTAG relied on the finding in Bennell by Wilcox J. His Honour considered the Single Noongar Claim and determined that at the time of European Settlement in 1829 there existed a single Noongar community (albeit the possible separation into different linguistic groupings), who adhered to the same traditional laws, observed the same traditional customs and, subject to extinguishment, together hold native title rights and interests in the area. Expert evidence presented in Bennell sought to demonstrate that in the pre-1829 Noongar society, “bounded areas of land were considered to be the property of families and individuals” and “the contemporary Noongar people view” is that “land is divided between families, which are country groups and whose members exercise rights as owners in it” and “an individual might have rights to more than one country”: see Bennell (at [702]).

156    Ultimately, the Full Court found (at [232]-[233]) the Mackay applicants’ contentions were not made out on the evidence:

While the applicant complains that the notice did not extend to all Noongar people said by the applicant to hold native title over each agreement area, in fact each notice extended to persons including members of native title claim groups for specified native title determination applications to the extent that persons asserted native title rights and interests in relation to the lands or waters of the relevant ILUA area. The requirement that such persons assert such rights and interests does not manifest any error. Shortly put, if persons asserted there was a Single Noongar Claim, as advanced by the Mackay applicants, each person who so asserted was given the requisite notice.

In any event, the evidence has always been that not every Noongar has rights over the totality of the Settlement Area. The claim has always been that cumulatively they hold native title over the whole area. The identification of apical ancestors pertinent to each area is consistent with the claim advanced. It is not the position that people have been excluded from a claim area, but they have been excluded from the description. There is express inclusion for the purpose of the meeting notice of any Noongar person in the whole claim area who asserts he or she has any right or interest in relation to the ILUA area. There is a Single Noongar Claim because the Noongar people are a single society. Within that society there are different group rights or titles or “runs”. That distinction was made plain in some of the objectors’ statements.

157    It is important to recall that McGlade (No 2) concerned claims for native title in fact made under the Native Title Act by the Noongar people, stretching back well over a decade, which had been the subject of a large number of decisions of this Court, all within the confines of the Native Title Act. There was no question in McGlade (No 2) that all concerned were dealing with “native title” claims as that term is used in s 223 of the Native Title Act, and indeed many of the Court’s decisions about the Noongar claims had concerned the content of that concept. Against that background, the existence of the six ILUAs, the Mackay applicants’ arguments presented to the Full Court and the way they were resolved are relevant to the resolution of the applicants’ contentions in this case. That is because they illustrate how complex the question might be of how to identify all those who may hold native title, and that notwithstanding the existence of an overarching “society” whose traditional laws and customs may be the source of rights and interests in land, the way native title may be held within that society may be much more complex, and differentiated. For certification and registration purposes, how these complexities were addressed and dealt with by the representative body in the process leading up to its certification is what matters.

The function of the Registrar (or delegate) under s 24CK

158    It is pertinent to first note the significance of the registration decision to the status of the ILUA. As I observed in McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172 (at [412]):

Registration is the vital statutory step in the ILUA process. It is what gives the security to which the Explanatory Memorandum refers. With registration comes statutory enforceability, including a significant departure from general law principles of privity, so that all those with native title rights and interests (actual or claimed) in an area covered by an ILUA will be bound by the outcome of the ILUA process: see s 24EA(1)(b). The attributes of finality, certainty, and enforceability intended to flow from registration are critical to stable, long-term realignment of proprietary and other interests affected by an ILUA.

159    There was some difference, at least in emphasis, between the parties about the appropriate way to describe and explain the Registrar’s function. The applicants focussed on the description in the recent decision of the High Court in Quall HCA, in the plurality reasons at [5]:

Faced with an unwithdrawn objection, the question for administrative determination by the Registrar is whether (having regard to information provided by the person making the objection and the representative body concerned) the Registrar is satisfied by the objector that 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 ILUA have been identified or that one or more of the persons who have been identified have not authorised the making of the ILUA. If the Registrar is so satisfied, the Registrar must not register the ILUA.

(Footnotes omitted.)

160    At [7], the plurality described this power in the following terms (with my emphasis):

…a power to determine any unwithdrawn objection by re-examining the matters about which a representative body has formed an opinion under s 203BE(5), where an ILUA has been certified…

161    The plurality contrasted this with the function conferred by s 24CL on the Registrar of forming “an independent opinion about the same matters” where there was no certification.

162    At [49], the plurality stated (with my emphasis added):

Moreover, the subject matter of the opinion required by s 203BE(5) to be formed by a representative body as a precondition to performance of the certification function conferred by s 203BE(1)(b) is a question of fact. As has already been explained, it is a question of fact about which the Registrar or a delegate of the Registrar may be required to form his or her own opinion, which can prevail over that of a representative body in the event of objection to a certified application for registration, and a question of fact about which the Registrar or delegate of the Registrar must form his or her own opinion in the event of an uncertified application for registration of an ILUA.

163    The TLWC and the State submit these observations are not inconsistent with the explanations of the Registrar’s function which are to be found in McGlade (No 2), Kemppi and Bright. I have discussed McGlade (No 2) above. I turn to Kemppi and Bright.

164    Kemppi primarily involved a challenge to the representative body’s certification decision itself, and derivatively, a challenge to the registration of the ILUA. It was in this context that Rares ACJ and Robertson J made the following observations (at [60]) about the term “all reasonable efforts” in s 203BE(5):

The expression “all reasonable efforts” in s 203BE(5)(a) includes the word “reasonable”. The context is that in s 203BE, the Parliament sought to provide a mechanism to ensure that an ILUA could be made not only after a judicial determination of native title under the Act, but also in circumstances before and without, indeed, any such determination being sought in a proceeding. Where no determination, or even proceeding to seek one exists, it is only persons who “may hold native title” who can make an ILUA. At this stage, it is not often possible, or sensible, to conduct fulsome genealogical research into the composition of a claim group. As the Court’s experience in managing native title cases has shown, often during the conduct of a claimant application under s 61 (as defined in s 253) of the Act in which a determination of native title is sought, the description of the claim group, including the identification of apical ancestors, changes, sometimes more than once, as more detailed anthropological research has occurred during the interlocutory and, sometimes the hearing, phases of the proceeding.

165    The observations at [67] should also be reproduced:

As the evidence at the trial confirmed, the cost of holding an authorisation meeting under s 251A, at which the convenors take active steps to ensure the attendance of as many members of the claim group and others who may hold (or claim that they hold) native title, can be, and often is, very substantial. Wide public advertising and the giving of other forms of public notice likely to come to the attention of any actual or possible holder of native title in the land and waters covered by a proposed ILUA, together with all anthropological and other relevant information currently or reasonably available that a representative body has considered (including material from any claim group or groups and others asserting native title rights and interests), advertising as well as direct communication, of notice of the s 251A meeting to any persons whom the representative body has identified to date (assuming that in doing so, at the time, it has made all efforts “as far as is reasonably practicable” under s 203BJ(b) to identify them) are likely, in most cases, to put a representative body in a position in which it can certify, under s 203BE(5)(a), that “all reasonable efforts have been made to ensure that all persons who hold or may hold native title …covered by” the proposed ILUA have been identified.

166    Their Honours were in this passage making findings on the evidence before the primary judge in the proceeding before them. They were not seeking to lay down any prescriptive rules about what will necessarily constitute “all reasonable efforts” in all circumstances. As White J emphasised in Bright (see below), what is required for efforts to be characterised as “reasonable” will be highly fact dependent.

167    At [79], in relation to the judicial review of the Registrar’s decision under s 24CK, Rares ACJ and Robertson J said:

The representative body must form and state its opinion with brief reasons that both those requirements have been met (by force of s 203BE(5) and (6)) as a condition of its certifying an application for the registration of an area ILUA under s 203BE(1)(b). But the Registrar’s function, pursuant to s 24CK(1) and (2)(c) in dealing with an objection to registration, not to the certificate, is to form a state of mind, namely, satisfaction, about whether the objectors have established that one or both of the requirements in s 203BE(5)(a) and (b) were not satisfied. And, s 24CK(1) requires the Registrar to act on the state of mind he or she forms about whether or not the objectors have established that one or both of those requirements was not satisfied. The Registrar must register the ILUA by force of s 24CK(1) if the objectors do not satisfy the Registrar that one or both of the requirements in s 203BE(5)(a) and (b) were not met.

168    Although differently expressed, I agree this passage is consistent with at least [5] of Quall HCA. See also McGlade (No 2) at [230]. The other two passages in Quall HCA use rather different language. At [89] in Kemppi their Honours described the circumstances in which the Registrar’s fact finding could be impugned:

Whether or not the delegate correctly or incorrectly decided that question did not involve, of itself, any circumstance that could be a jurisdictional error. The Act gave the delegate the authority to decide the facts, as to whether the requirements in s 203BE(5)(a) and (b) were met, correctly or not, provided that she did not commit a jurisdictional error in doing so under s 24CK(2)(c): Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [66]-[68] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. The appellants did not challenge the factual findings of the delegate on their objection. Rather, they challenged the Registrar’s jurisdiction or power to register the Adani ILUA.

169    Paragraphs [90], [91], [94] and [96] are critical:

The validity or correctness of the certificate that QSNTS gave under s 203BE(5) and (6) was not a statutory condition of the Registrar’s power and duty to register the Adani ILUA if, as occurred here, there was an objection under s 24CI. That is because in such a case, s 24CK(2)(c) required the delegate to consider whether “in relation to the certification”, she was satisfied that the requirements of s 203BE(5)(a) and (b) had not been met. In other words, the Registrar, under s 24CK(2)(c), is not considering the opinion of the representative body, but only whether he or she is satisfied that the requirements of each of paras (a) and (b) in s 203BE(5) have not been met. Thus, the Registrar is bound to consider whether he or she is satisfied that:

•    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 ILUA have not been identified; and

•    all the persons so identified have not authorised the making of the ILUA.

It follows that an objection under s 24CI can raise matters not before the representative body when it gave the certificate under s 203BE(1)(b) to show that, regardless of the representative body’s opinion as to the requirements in s 203BE(5)(a) and (b), the objective requirements in each of s 203BE(5)(a) and (b) had not been met.

…

The intention of the Parliament must have been to allow persons dissatisfied with, or adversely affected by, a certificate under s 203BE(1)(b), to have a merits review by the Registrar as to whether the two requirements in s 203BE(5)(a) and (b) had not been satisfied. An objector can exercise the statutory right to object to the registration of an ILUA, under s 24CI, on the basis that one or both of the requirements in s 203BE(5)(a) and (b) have not been met. That gave the objector an effective remedy in respect of the subject matter of a certification under s 203BE(1)(b), the result of which did not depend on the representative body’s opinion in the certificate.

…

Thus, all that an objector needs to do under s 24CK(2)(c) is to satisfy the Registrar either that whatever occurred did not amount to all reasonable efforts to identify all persons who hold or may hold native title in the area or that someone so identified did not authorise the making of the ILUA: Corunna at [61].

(Emphasis added.)

170    And at [98]:

Whether the area ILUA is registered after the Registrar determines an objection under s 24CK depends not on the opinion of the representative body expressed in the certificate, but on the Registrar’s independent decision as to whether he or she is satisfied that the statutory criteria under s 203BE(5)(a) and (b) have not been met: cf too: Calvin v Carr [1980] AC 574 at 595B-E, 596F-G; [1979] 1 NSWLR 1 at 13B-D, 14E-F per Lord Wilberforce (giving the advice of himself and Viscount Dilhorne, Lords Hailsham of St Marylebone, Keith of Kinkel and Scarman); Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 342-344 per Bowen CJ, 370 per Smithers J; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 at [28]-[32] per Finn, Mansfield and Gyles JJ; Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337 at [20] per Rares J.

(Emphasis added.)

171    Perry J generally agreed with the reasons of Rares ACJ and Robertson J: see [111].

172    Bright was, like this proceeding, a judicial review challenge only to the delegate’s decision under s 24CK. In contrast to the Taungurung ILUA, the ILUA in Bright related to a relatively small area of land – an area of about 10 square kilometres covering all the land and waters within the town of Batchelor in the Northern Territory. Also like this proceeding, the Court’s judicial review jurisdiction under the ADJR Act was invoked, and the applicants were some of the persons who had objected under s 24CI to the registration of the ILUA. As White J points out at [8], the grounds of review were primarily considerations grounds. At [19], White J emphasised, just as the Full Court in Kemppi would subsequently do, that such a challenge was not to the formation of the opinion by the representative body:

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.

173    The objectors were part of a group identifying as the “Rak Mak Mak Marranunggu”, who (amongst others who objected) claimed to hold native title in the land and waters covered by the Batchelor ILUA. The Northern Land Council’s position in its certification, and to the delegate, was summarised by White J at [27]:

(1)    anthropological research, investigation and inquiry in legal proceedings had been carried out “over a relatively lengthy period of time”;

(2)    the Northern Land Council had considered alternative views, including the claims of the Rak Mak Mak Marranunggu, and had commissioned experts to report on them; and

(3)    on the basis of its efforts that the Northern Land Council 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 (who were parties to the Batchelor ILUA).

174    It is necessary to set out some of the background to the judicial review application in Bright, in order to establish how different the circumstances were from those facing the delegate on the present Taungurung ILUA registration application. As White J explained from [30] onwards (in more detail than I set out here), there had been previous significant hearings and inquiries under the Aboriginal Land Rights Act, over land surrounding the Batchelor ILUA land, of which the Rak Mak Mak Marranunggu had claimed to be the traditional owners. The hearings were conducted by distinguished land commissioners (such as the Hon John Toohey), involved all parties being legally represented and involved the presentation and testing of a large amount of anthropological and lay evidence. In some of the inquiries the Marranunggu group were found to be traditional owners of some parts of the land under investigation; in others there were other groups identified as traditional owners. There were also relevant proceedings in this Court and in the Northern Territory Supreme Court. Notably this included a separate question proceeding under the Native Title Act in this Court, which was ultimately discontinued, with conditions attached to the commencement of any further proceedings. White J characterised (at [38]-[40]) the situation in the following way:

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”.

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”.

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.

175    White J went on at [41]-[42] to describe what this meant for the circumstances of the judicial review application of the delegate’s registration decision:

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.

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.

176    It is also important to note that, as the above extracts demonstrate, Bright was a case where it was accepted the objectors held native title rights and interests in some land and waters; the question in issue was whether their rights extended to the land and waters around the town of Batchelor. As White J said at [88]:

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.

177    Of the burden imposed on objectors by s 24CK(2)(c), White J said at [65]-[66]:

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.

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.

178    I respectfully agree with those observations. However, as I explain below, I do not agree that paragraph [66] supports some of the respondents’ contentions on this application, contrary to their submissions.

179    At [90], White J explored what his Honour considered was a fundamental problem for the objectors in their judicial review, describing the problem in the following way:

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.

180    His Honour then went on by reference to the detail of the evidence and material available to the delegate, to explain why he had reached that conclusion. For present purposes, two matters should be noted about this passage. First, it demonstrates that it may well be the case that an objector can discharge the onus imposed by s 24CK(2)(c) by satisfying the Registrar (or delegate) that the objector (and the group she or he represents) may hold native title in the ILUA area, and that questions about who are the people who may hold native title in an ILUA area are capable of affecting the assessment whether an objector has shown that reasonable efforts were not made by the representative body to identify all those who may hold native title. In other words, White J’s reasons appear to allow for one of the arguments put in this case by the applicants. See also [137], where his Honour makes a similar point.

181    At [91], White J concluded:

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).

182    At a general level, I respectfully agree with the last observation, when it is understood in light of recent authorities about how courts on judicial review can indeed examine, and critically review, the fact finding of an administrative decision maker: see for example BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175; AQV15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83; and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99. And see Kemppi at [89], to which I have referred above.

183    A further matter from Bright which should be noted is White J’s findings at [107]-[110] about the relevance of inquiries under the Aboriginal Land Rights Act. While recognising care needed to be taken by the delegate in considering material obtained under a legislative scheme other than the Native Title Act, his Honour found such material was relevant and could be rationally probative in the Registrar’s reasoning on the objections. At [107], White J found:

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.

184    I refer to this because in my opinion there are objectively far fewer parallels with the legislative scheme of the TOS Act and the Native Title Act. First Nations Legal’s arguments, and those of the State, both to the delegate and to this Court, did not sufficiently acknowledge the differences, and tended to conflate the two schemes. It may well be that the way the responses to the objections were framed by First Nations Legal, and by the State, assists in explaining how the delegate came to make the legal errors I have identified below.

185    The TOS Act’s purpose (in s 1) includes the recognition of “traditional owner groups based on their traditional and cultural associations” with land, statutory concepts quite different and much broader than those employed in s 223 of the Native Title Act. As the Preamble to the TOS Act acknowledges, the “rupture” caused by the arrival of Europeans in Victoria, and the losses to Aboriginal Peoples flowing from that event, is what caused the Victorian Parliament

as a means of reconciliation, to provide for agreements to be negotiated between the State and traditional owner groups to enable Aboriginal cultures to be recognised, in particular the recognition of the special relationship of Aboriginal peoples with their land, to recognise traditional owner rights and for rights to be conferred on identified traditional owner groups.

186    Although two of the three alternative definitions in s 3 of the TOS Act of “traditional owner group” employ the concepts of the Native Title Act, the third does not. The third definition is:

in any other case, a group of persons who are recognised by the Attorney-General, by notice published in the Government Gazette as the traditional owners of the land, based on Aboriginal traditional and cultural associations with the land;

187    This difference is no accident. The extrinsic materials to the TOS Act clearly disclose the Victorian Parliament intended to enact a legislative scheme that was more closely tailored to the complex Victorian context, and allow for recognition of traditional connections to land without the strict standards required for a determination under the Native Title Act. In his second reading speech, the Minister stated:

Until now, traditional owner groups have had no concrete avenue for the recognition of their rights in land, other than through the commonwealth’s native title system — a complex legal system that was never intended to address land justice in the more settled regions of Australia.

…

While the Native Title Act represents a major step forward for Australia, there are nevertheless certain shortcomings in the approach taken under the act.

Firstly, it examines whether previous grants have extinguished native title, and this requires a costly, complex, parcel-by-parcel investigation of historical tenures.

And, secondly, it seeks to determine whether claimants still hold a customary title that must have survived 180 years of European colonisation. This means Aboriginal people are required to prove that they have maintained a continuous connection with their country and that they form a society with a normative system of law and custom significantly unchanged since the beginning of colonisation.

Of course, in Victoria’s case this test is almost impossible to meet given the rapid occupation of the land since settlement. For example, between 1851 and 1861, Victoria’s migrant population doubled nearly four times over.

And in the century that followed, we saw a raft of government policies which greatly impacted those Aboriginal people who survived the earlier onslaught of disease, violence and dispossession. This included policies which sought to either exclude Aboriginal people from the population or absorb them imperceptibly within it. Either way, ties to country were often severed.

Despite this legacy, Victoria’s traditional owners survived — through sheer resilience, determination and heroism. Law and custom, cultural practices and traditional owner identities endure. Yet the events and policies of nearly two centuries cast traditional owners from country, broke their means of subsistence and undermined their systems of law and relationships to country and to each other. This, of course, makes the task of meeting contemporary connection tests almost insurmountable.

…

This bill establishes the legal framework for a state-based system that enables the government to enter into agreements directly with traditional owner groups, outside any court setting.

Through these agreements, the government will recognise traditional owner groups based on their traditional and cultural associations to certain land in Victoria and recognise their rights in relation to access, ownership, management, use, and development of certain public land.

The bill’s approach is to put the question of native title to one side in exchange for recognition and a range of benefits related to that recognition.

188    The speech concluded by describing the TOS Act as representing “unquestionably a new approach”.

189    One example of the differences in the approach taken can be seen from the positive submissions put forward by the State to the Registrar, in relation to the objections. The State contended

[a]s part of the process of the State satisfying itself about who constitutes the relevant traditional owner group, the State will take into account, amongst other things, the group’s own oral traditions, including whom the group regards as an ancestor.

190    This kind of approach may be well within the ambit of the TOS Act process, a matter on which the Court makes no finding. It may also be good practice at a general level in steps taken to right the historic wrongs against Aboriginal People in Victoria. However, it is not an approach which, by itself, could be sustained under the Native Title Act. If a government party in native title proceedings were to take the contention of a group about “who it regards as an ancestor” and to accept the “oral traditions” of present claim group members as sufficient evidence of the holding of native title, it would risk misconceiving its role, even in a consent determination process. Of course, apical ancestors nominated by a group may well be the starting point of most native title claims, but the components of s 223 must be satisfied by persuasive information and evidence, even in a consent determination process, at least to the level of “credibility”. What the State described was a much looser and more self-identifying process, and on the evidence that is precisely what may have occurred during the Taungurung ILUA process. While as I say there are many valid justifications for that approach at a policy level, the process under the TOS Act (for the reasons set out in the extrinsic material) is far removed from a decision about who holds, or may hold, native title as that concept is defined and understood in the Native Title Act, and in the authorities of the High Court and this Court.

191    The significant consequences of the State adopting this approach are evident in the treatment of Tooterie as an apical ancestor, where the State admits in its submissions to the Registrar (at [56]) that it appeared simply to accept the resolution of the Taungurung claim group to nominate her in 2013, and then again simply accepted the resolution of the Taungurung group to remove her in 2018. The basis for her inclusion as an apical ancestor was described by the State (in terms of positive factors) as no more than as “oral history” and “common language”. Those matters are objectively insufficient, even under a consent determination process, to establish (even to the level of “credible”) the likelihood of a connection to land and waters through traditional law and custom at sovereignty and which has continued to the present day. Whether or not they are enough under the TOS Act is, again, a matter on which the Court makes no finding.

192    As I have sought to explain, where an ILUA is concerned, the group must meet the requirements of the Native Title Act, not the TOS Act, an ILUA being given statutory force and effect by the Native Title Act, not the TOS Act.

193    In my opinion, the following propositions emerge from the authorities and the legislative scheme of the Native Title Act:

 (1)    the applicants as objectors were required to satisfy the delegate that First Nations Legal had not made reasonable efforts to identify all those who may hold native title in the Taungurung ILUA area;

 (2)    “those who may hold native title” is to be understood as those who might reasonably be seen to hold native title (see [137] above), and does not include an analysis of whether persons do or do not constitute a “traditional owner group” for the purposes of the TOS Act;

(3)    if the objectors failed in establishing the matters in a) and b), the second part of the delegate’s task – whether she was satisfied all those people had authorised the ILUA – would need to be examined on judicial review on the basis of how First Nations Legal had identified those who may hold native title, not on the basis of how the objectors contended those people should be identified. In other words, the objectors were required to satisfy the delegate that those who First Nations Legal had made reasonable efforts to identify as Taungurung People (including Ngurai Illum Wurrung and Waywurru) were not the same people (or were not in substance the same people) who had authorised entry into the ILUA at the authorisation meeting.

(4)    In considering the objections (and the material supplied with them) the delegate’s task was not to look at First Nations Legal’s opinion, but to form her own views at a merits level about whether she was persuaded First Nations Legal had not made reasonable efforts. It is in that sense that the Registrar or her delegate must “re-examine” (see Quall HCA) the steps taken by the representative body, and the information considered by it, and was empowered to reach a different (and fresh) factual conclusion to the representative body.

(5)    In this process, subject to notions of reasonableness and rationality, the weight to be given to the factual material presented by the objectors, and relied on by the other parties before the Registrar, is a matter for the Registrar. No party sought to contend the Registrar’s task and power in s 24CK was not conditioned by an implied duty to act reasonably and rationally.

Some relevant factual matters

194    As a matter of substance, at the heart of many of the applicants’ complaints and concerns about the steps taken by First Nations Legal is their firm, and I accept genuine, belief that the Taungurung ILUA wrongly identifies people as apical ancestors for Taungurung country, when in fact those people are Ngurai Illum Wurrung (or Waywurru) ancestors, and hold rights and interests in Ngurai Illum Wurrung (or Waywurru) country in ways which are separate and distinct from the Taungurung People and their country. Inherent in this contention is the proposition that the Taungurung ILUA, as an area ILUA, extends beyond country which is properly to be treated as Taungurung country.

195    In his affidavit tendered as part of this proceeding, the applicant Mr Vincent Peters describes Ngurai Illum Wurrung country in the following terms:

Ngurai Ilium Wurrung country is located on both sides of the Goulburn River upriver from Talamba to down river of Seymour. Its western boundary is the Campaspe River then North East out to Violet Town and associated regions.

196    There is no debate that this land is included in the Taungurung area ILUA. The areas identified by the objectors as areas subject to native title held by Waywurru and Ngurai Illum Wurrung are identified on the map which is Annexure A to these reasons, and which was put to the delegate on behalf of the objectors.

197    Since a core component of the Taungurung ILUA is an agreement for the non-pursuit of a determination of native title, and consent for all future acts in relation to the land and waters of the area ILUA, the applicants rightly see their asserted native title interests as directly affected by the registration of the ILUA, for upon registration it becomes binding on at least those applicants who are presently identified as Taungurung People – whether or not they wish to be so identified.

198    In relation to the descendants of Tooterie, the consequence is clearly put by Ms Xibberas in her affidavit to the Registrar at [15]:

I refer to paragraphs 17 to 25 of Mr Cowie’s Affidavit in which he refers to the inclusion of Tooterie and her subsequent removal. As noted above, the decision to include Tooterie as an apical ancestor was made at a meeting of the Taungurung claim group attended by 16 people, none of whom were descendants of Tooterie. Further, as noted above, resolution adopted by the Authorisation meeting to remove Tooterie as Apical Ancestor did not remove her Country. The consequence of this is that descendants of Tooterie are not able, as a part of the Ngurai Illum Wurrung group, to exercise any traditional rights over the country belonging to Tooterie’s clan and country, more generally, belonging to the Ngurai Illum Wurrung.

I refer to paragraph 23 of Mr Cowie’s Affidavit in which he states that the removal of Tooterie as an apical ancestor was a matter for Taungurung and not a matter of concern to the State of Victoria. This, of course, ignores the fact that, while Tooterie has been removed as an apical ancestor, the Country occupied by Tooterie’s clan Ngurai Illum Balug, remains within the Taungurung RSA and all descendants of Tooterie are precluded, as Ngurai Illum Wurrung people, from celebrating their connections with and exercising their traditional rights over their Country. One example that comes to mind involves the repatriation of the remains of our people back to Mother Country. While my country remains under the control of the Taungurung Group, I would not be notified or be involved in the return those remains to Mother Country.

(Emphasis added.)

199    The point made by Ms Xibberas at [17] of her affidavit also bears setting out. It is in response to an affidavit filed by the State in the Supreme Court proceedings. The deponent of that affidavit was Mr Dean Cowie.

200    Ms Xibberas deposed:

At paragraph 24 of Mr Cowie’s Affidavit he refers to descendants of Tooterie being able to choose to “self-identify as a Taungurung person, actively associate with Taungurung interests, and be recognised and accepted by the Taungurung people”. I believe that this statement is both disrespectful of and insulting to the descendants of Tooterie. To me this statement is a further example of being dispossessed of my ancestors and my country.

201    Ms Xibberas’ point is, with respect, well made. To assert that an Aboriginal person could change his or her self-identification in order to secure the benefits due to a group who have been recognised as having a claim to native title, but with which that person does not identify by reason of her or his own descent and knowledge, is capable of appearing insulting and disrespectful. It also misses the key point, which is that there is a real, substantive and live debate about not only the composition of the group which now calls itself the Taungurung People, but also the land and waters to which they lay claim, as well as the status of the Ngurai Illum Wurrung and the Waywurru. In not entirely dissimilar circumstances, I observed in Purnululu at [1646] that it is not within the authority of a contemporary group of native title claimants to give or deny “recognition” to individuals for native title purposes, unless that is occurring in accordance with the traditional law and custom of that particular group. There was no evidence before the Registrar this was the standard being applied by the Taungurung People, and instead there was evidence to the contrary. Indeed, the definition of Taungurung People in the ILUA, reproduced at [13] of the applicants’ submissions, was plainly a non-traditional one:

Taungurung and Taungurung people mean the Traditional Owner group that consists of Aboriginal persons who

(a)    are descended by birth through either parent from Aboriginal ancestors identified as being associated with Taungurung country during the mid-nineteenth century by any or all of birth, place of burial or other connection: and

(b)    have activated inherited rights as traditional owners through:

(i)    self-identifying as a Taungurung person by asserting to be a Taungurung person; and

(ii)    having an active association with Taungurung country, which is demonstrated by participating in at least one of the following activities:

(A)    taking an active role in corporate or other entities that represent Taungurung interests;

(B)    taking part in group activities and events (such as meetings); or

(C)    participating in the transmission of Taungurung knowledge to younger generations and other traditional owner groups; and

(c)    are recognised and accepted by other Taungurung people:

   (i)    as a member of the Taungurung people; or

(ii)    through demonstrating to the satisfaction of a panel of Taungurung people appointed by the full group how they satisfy paragraphs (a) and (b).

202    At [22] of her reasons, the delegate found that

Clause 1.1 of the agreement states that the ‘Taungurung or Taungurung People’ are the traditional owner group pursuant to s 3 of the Traditional Owner Settlement Act 2010 (Vic) (Settlement Act) for the agreement area.

203    However it is not clear which limb of s 3 of the definition of “traditional owner group” was said to be engaged – the native title limbs, or the TOS Act limb. One of the native title limbs still required an assessment that the claim made was a credible one within the terms of s 223. The determined holders limb was not relevant. That distinction was an important one for the assessment of the objectors’ contentions.

204    What is set out here is not intended to be exhaustive. But these matters are some of the evidence upon which I have relied to reach my conclusions.

Ground 1: denial of procedural fairness

205    The ground is expressed as follows:

the Applicants were denied procedural fairness in being denied access to the Threshold Statement (reasons [94]).

206    The objectors are recorded by the delegate at [72] of her reasons as putting their position on the Part A Threshold Statement in the following way:

The Threshold Statement is significant for the task before the Registrar as it establishes whether that the Taungurung have a legitimate claim to native title over the land in question, and whether ‘all reasonable efforts’ have been made.

The Threshold Statement would demonstrate the extent and quality of the research underpinning the ILUA in question and the efforts made to identify the native title claimants. Apart from the assertions made on behalf of the Taungurung and the brief research paper provided, no research material has been put before the Registrar to enable her to be satisfied that ‘all reasonable efforts’ have, in fact, been made.

(Footnotes omitted.)

207    At [94], the delegate rejected those submissions:

As mentioned earlier, the onus here is on the objectors to satisfy me that the requirements of s 203BE(5)(a) are not met, and not on First Nations or any other party. I also note that First Nations has done extensive research into the composition of the Taungurung group, holds a genealogical register, and has also indicated that membership requires more than blood descent for a person to retain rights and interests over a particular area. I understand that those people on the database meet these criteria or have been verified through these means.

(Emphasis added.)

208    The part of these reasons I have emphasised in bold is a matter to which I return below. In substance, in considering the objections made and where the steps taken by a representative body were put in issue (as here), the delegate would not be performing her function correctly if she were simply to rely on a representative body’s assertion of the undertaking of “extensive research”, without any understanding or information about what the representative body meant by the use of such a phrase.

209    For the purposes of ground 1 however, while the content of Part A Threshold Statement was plainly critical to the TOS Act process, and to the State ultimately agreeing to the ILUA as part of a recognition and settlement agreement under the TOS Act, the delegate was correct that it was not part of her function to require the State or First Nations Legal to produce the Part A Threshold Statement, and (inferentially) what was important to her decision was the fact of the Part A Threshold Statement process having been undertaken. The objectors were able to make contentions about that fact if they chose to (which they did).

210    The exercise of power which must be proven to be conditioned with an obligation to afford procedural fairness is the delegate’s power under s 24CK. There was no real argument from either respondent but that the correct approach is to see it is so conditioned, and the delegate herself took this approach.

211    However, in exercising her power under s 24CK, the delegate did not take the contents of the Part A Threshold Statement into account. It was not before her and she could not consider its contents other than through the contentions put by the State and by First Nations Legal, to which the objectors had access and responded. As the State submits, the Part A Threshold Statement, and the material which went into its preparation, may well have been one of the sources of information which informed the certification by First Nations Legal, but it is not First Nations Legal which is the repository of the power under s 24CK, and it is not First Nations Legal which relevantly owes the objectors any duty to afford them procedural fairness of the kind asserted under ground 1.

212    The delegate also referred to the Part A Threshold Statement at [61] of her reasons, where she was describing the “State’s efforts”, in part it would appear because of a submission by the State that the efforts it made could be taken into account by her in deciding if the objections should be upheld. No party addressed the Court on this application whether that proposition was correct, but the relevant point for ground 1 is that all these contentions were contained in the State’s response to the objectors’ submissions, a copy of which the objectors had. As I have noted, and subject to what I say further below about the bolded part of [94], the delegate’s reasons demonstrate it was the fact of the Part A Threshold Statement process which the delegate found important, rather than the contents of the Statement itself. The objectors had an opportunity to address the delegate about that process, and they did not need the product of the process to do so.

213    Not having the document herself, and not purporting in her reasons to rely on its contents (as opposed to the process by which it came to be produced), the delegate did not breach her obligation of procedural fairness to the objectors. Ground 1 fails.

Ground 2: onus

214    This ground is expressed as follows:

The Delegate erred in law in imposing the onus upon the Objectors. The Delegate correctly cited authority that her task was “to consider whether all reasonable efforts had been made to ensure that those who hold or may hold native title over [the agreement area] have been identified” (reasons [83]) but did not consider all the evidence relevant to that question and that the Delegate was bound to consider in making her decision. Instead, the Delegate placed an onus upon the Applicants to satisfy her “that all reasonable efforts have not been made would require the objectors to show that the efforts to ensure all persons who hold or may hold native title in the area have been identified were wanting such that the efforts and subsequent views cannot be said to be reasonably based” (reasons [85]). In so doing, she misconstrued what the notion of “onus” means in the law relating to administrative decisions and imposed on the Applicants a stringent requirement of disproof which was impermissible.

215    As senior counsel for the State correctly accepted, in contrast to the alternative process under s 24CL, the statutory scheme gives weight and significance to a certification by a representative body by requiring objectors to assume the persuasive burden of satisfying the Registrar that the certification should not be accepted. The objectors must persuade the Registrar of a negative state of affairs. That does not mean, as White J pointed out in Bright, that all of the evidence or information they present must be of a negative kind. The delegate did not suggest otherwise. When she dealt with the approach she was required to take under s 24CK, she described that task, in light of the burden on the objectors, correctly. For example at [94]:

As mentioned earlier, the onus here is on the objectors to satisfy me that the requirements of s 203BE(5)(a) are not met, and not on First Nations or any other party.

216    See also [53], and at [44]:

The objectors must 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.

217    In light of the (properly made) concession that s 24CK(2) imposes on the objectors the task (whether called an onus or not) of persuading the Registrar that the representative body did not make reasonable efforts to identify all those persons who may hold native title, and in light of the delegate’s reasons as expressed, the way this ground was put was, with respect, difficult to understand.

218    It was developed only briefly orally. First, counsel submitted:

That the registrar has to look at the evidence before her, and has to weigh that evidence, determine on that evidence the critical issues. We say simply, your Honour, we accept we’ve got the onus. That that onus comes into play when the evidence is considered. It is not a constraint on the registrar as to how the evidence should be – that is within the registrar’s power to consider that, and to weigh appropriately what matters the registrar will or will not take into account.

219    Counsel next submitted:

It is, in my submission, uncontroversial that what the registrar must do, having looked at the opinion formed by the representative body, is as an administrative decision-maker determining again whether or not that opinion could be reasonably held in all the circumstances. That’s how I interpret what the High Court has said in relation to that passage.

The requiring to form his or her own opinion, which can prevail over that of the representative body, in my submission, is read to mean when the evidence suggests that the decision of the representative body was not made appropriately and on the evidence before the registrar the registrar reached her own opinion that it had not been – that it was not open, that it was an opinion that does not accord with the evidence before her – that that’s the task, and the importance of the task, going back to the structure of the Act, is that this is a mechanism to ensure that people don’t miss out, that the review is a real review function so that if an objection is properly made in relation to an ILUA – that it is properly considered.

220    By reference to these passages, and what was said in the applicants’ written submissions, the suggestion appears to be that, relying on the onus concept, the respondents were, attempting unduly to narrow or constrain the task of the Registrar under s 24CK, in conflict in particular with the descriptions of the task by the plurality in Quall HCA.

221    As the respondents have submitted, there are aspects of the applicants’ contention on this ground which do seem to characterise the Registrar’s function differently from the way it has been characterised in the authorities which I have set out above. If by this ground it is being contended that somehow because of her approach to the onus cast by the statute on the objectors, the delegate failed to consider at a merits level, and afresh, whether First Nations Legal did not take reasonable steps to identify all those who may hold native title in the Taungurung ILUA area, then I reject that contention. Subject again to what I say below, in particular about the affidavits, the delegate’s reasons demonstrate she understood she was to make her own decision – on the material before her – about whether First Nations Legal had not taken reasonable efforts to identify all those who may hold native title, and to ensure it was those people who authorised the ILUA.

222    Ground 2 fails.

Ground 3: wrong question/wrong task

223    This ground is expressed in the following way:

The Delegate asked herself the wrong questions, by accepting as determinative, the reliance of First Nations for its notification and certification functions upon its Database of more than 150 people (reasons [88], and [94], and notice being sent to only to those people (reasons [130] and [131]) in circumstances where, in accordance with the relevant provisions of the Act, the correct question on which the Delegate had to be satisfied was whether “all reasonable efforts” were made to notify to all persons who hold or may hold Native Title. There was a live and central factual issue that was required to be determined by the Delegate as to whether there were a group or groups of indigenous people not on the Database but who reasonably claimed to hold native tile rights and interests over parts for the area the subject of the ILUA that had been ignored or overlooked in the authorisation process. The Delegate failed to engage this issue or determine it.

(Original emphasis.)

224    The applicants appear to challenge the delegate’s approach to assessing First Nations Legal’s efforts under both limbs of s 203BE(5)(a) and (b): that is, in identifying potential native title holders, and in ensuring it was those people who authorised the ILUA.

225    Before the delegate, there were other objectors who raised similar arguments about other groups they contended may hold native title – for example, the Bangerang. I do not reproduce any of those passages in these reasons as they are not relevant.

226    At [85], as to s 203BE(5)(a), the delegate said (having discussed the applicable authorities):

In light of the above, I understand the requirement is that ‘all reasonable efforts have been made’, which directs s 203BE(5)(a) to the efforts made and whether they can be considered reasonable in the circumstances. I am not required to consider whether all potential native title holders have been identified or whether I agree with the views formed by the representative body about ‘all persons who hold or may hold native title’ in relation to the land and waters covered by the agreement area. Rather, it is whether the material shows that those views were shaped as a consequence of reasonable efforts. To satisfy me that all reasonable efforts have not been made would require the objectors to show that the efforts to ensure all persons who hold or may hold native title in the area have been identified were wanting such that the efforts and subsequent views cannot be said to be reasonably based.

227    After dealing specifically with the Bangerang, the delegate found at [88]:

The certification and other material provided indicates that details concerning the identification of members of the Taungurung People is kept on a database maintained by First Nations and that a prescribed procedure ensures the database is checked and updated to include only those who hold, or may hold, native title in the relevant area. The database currently includes details of more than 150 people.

228    At [89], the delegate set out what she described as a “detailed notification and consultation process” prior to authorisation of the ILUA, by reference largely to the processes that had occurred under the TOS Act. She did this in a relatively general way, but did refer to letters sent to “Mr Freddie Dowling, Ms Gardiner, Mr Murray, BAC, YYNAC, and DWAC” and consideration of responses by the State and Native Title Services Victoria, the predecessor to First Nations Legal. What is missing from this paragraph is any reference to the other versions of events contained in the affidavits.

229    At [90]-[91] the delegate summarised the notifications given about the authorisation meeting:

The authorisation meeting was subsequently notified in five newspapers. The notice invited ‘[a]ll people who hold or may hold native title to the land and waters show in the map ..., which includes people who identify as Taungurung’. Notices were sent to the persons on First Nations’ database and TLWC also caused the notice to be sent to their approximately 300 members.

The people who attended the authorisation meeting were required to undergo a registration process before they were able to enter the meeting. The process involved identifying their lines of descent which was done with the assistance of First Nations research staff and reference to a genealogical register, and other Taungurung people assisted to verify lines of connection where there was dispute or uncertainty.

230    She does not refer here to the fact that the inclusion of Tooterie had been determined back in 2013, without many of her descendants having any notice or input into that decision. She also does not refer to the accounts in the affidavit material.

231    At [93], the delegate rejects the criticism of the meeting notice, and highlights the fact that many objectors attended the authorisation meeting, thus establishing the notifications were effective (at least for them).

232    The findings in [92], and their placement in this part of the delegate’s reasoning, support the conclusions I have reached below about the delegate’s treatment of the affidavit material, but these findings also suggest the delegate was confining herself too narrowly in the material she considered capable of satisfying her that no reasonable steps had been taken by First Nations Legal:

I note submissions are made in relation to the connection of the Bangerang, Wollithiga, Ngurai Ilium, Waywurru, Dhudhuroa and/or others with the agreement area and reference is made to maps, oral accounts and other material that support their connection. I note that the task here is not to scrutinise or determine whether the claims of the Taungurung are correct or whether they are the correct persons for the agreement area, and/or weigh the research of First Nations and others against the contradictory assertions/views and determine which I consider to be more accurate or robust. As observed in McGlade No 2, ‘neither s 203BE(5)(a) or s 203BE(5)(b) ... permit any conclusion to be made as to who the native title holders are in any given ILUA area, whether by the certifying body or the Registrar’.

233    As I have attempted to explain above, by reference to the observations of White J in Bright, information and evidence about who are said to be the persons who may hold native title is capable of affecting an assessment of the reasonableness of the efforts made by a representative body to identify such people. It is not assessed for the purpose of the Registrar making any determination about who may hold native title, but it is assessed in order to gauge whether the representative body has done enough to reasonably form a view about who those people are, and reasonably to conclude they are the right people – enough to warrant certification to that effect, with all the consequences that certification brings.

234    Paragraph [94] of the reasons, which I have set out above, confirms my view that the delegate adopted too narrow an approach. It is not possible to sever my findings about this from my findings about the delegate’s lack of engagement with the affidavit material: they are linked. However, the point is that the delegate simply did not engage with the details of the “extensive research” as it was put before her, in particular in the “Attachment B” paper, which was the only expert opinion before her, and indeed the only expert opinion which appeared to have been produced on the actual issues being raised by the objectors: that is, about the Taungurung and Ngurai Illum Wurrung being a distinct group which may hold distinct native title over distinct parts of the Taungurung ILUA area. That paper did not address whether the Waywurru and Dhudhuroa peoples held native title in land and waters covered by the Taungurung ILUA. That argument was addressed in submissions, but not in this research paper. The delegate did not assess for herself if the research was, as asserted, “extensive”. On its face there was a reasonable argument to be had that the research on the matters raised by the objectors was not deserving of that characterisation. Attachment B was a relatively short paper, with conclusory views expressed preferring some ethnographic and historic research, largely from secondary sources rather than Aboriginal informants, over others. None of the authors’ views had been tested, or even exposed to consideration by experts retained by others with different perspectives. Compare the circumstances in both McGlade and in Bright, where there had been considerable litigation and formal inquiries.

235    It would ultimately be a matter for the delegate to reach her own conclusions about the value of the research paper, and what it revealed about the “efforts” of First Nations Legal in this very specific Victorian context, which is quite unlike the situation in other states, and unlike the factual circumstances of the authorities on s 24CK. The point here is she did not engage with the material at all, just as she did not engage with the affidavits. Her reasons suggest she saw such engagement as outside her task, which is incorrect.

236    In this kind of factual context, where there had been no native title litigation, where there was a paucity of anthropological research for the purposes of the Native Title Act carried out with living informants, or with elders from earlier generations, where there were no equivalent of formal Aboriginal Land Rights Act inquiries, and where the ethnographic record was problematic and patchy, reliance on the construction by First Nations Legal of a database, and by notifications undertaken by the group with an interest in one side of the possible outcomes (the TLWC) was too narrow, and was an insufficient consideration. These criticisms by the objectors could not be dismissed by the delegate, as they were, as no part of her task because she was not to decide herself who may hold native title. What her reasons suggest she failed to appreciate, with respect, is that all these matters were quite capable of going to the reasonableness of the effects made by First Nations Legal. Put shortly, in such a situation it would have been open to the delegate to have taken the view that First Nations Legal needed to do a great deal more than it had done, and needed to undertake some substantive, deep and longer term work about whether at sovereignty, the Ngurai Illam Wurrung were likely to have been a distinct native title holding group from their neighbours the Taungurung, especially given (as I explain below) the apparently overarching agreed position that the “society” which existed at sovereignty was that of the Kulin nation, and it was the normative rules which together comprised the traditional law and custom of the Kulin Nation which were the rules determining how land was held, and how rights and interests in it were acquired, and passed on. That is not to say the delegate would have been bound to reach such a conclusion, but these were the kinds of (very Victorian specific) matters she needed to engage with, and she did not.

237    The delegate’s self-censorship about these matters is what appears to have driven her to see the proxy votes as irrelevant. While it was not said in this proceeding that First Nations Legal should have taken steps to ensure the proxy votes were given equal voting status at the authorisation meeting and the delegate erred in not deciding they should have, what was said – with some force in my opinion – is that the (unchallenged) existence of a very large number of proxy votes indicated the numbers of people who may be people who may hold native title, and not necessarily the “native title” said to be held by the Taungurung group. The existence of the proxies was capable of establishing who may not have been included in the authorisation process, and may not have been identified by First Nations Legal.

238    First Nations Legal appeared to accept this in its submissions to the delegate: see [70] of the delegate’s reasons where she records First Nations Legal as making the following submission:

The proxies may provide some probative value as to the efforts made to identify native holders. The objectors made considerable efforts to identify native title holders by:

•    Contacting at least 186 people who they considered may hold native title rights, advising them of the meeting, and then obtaining their proxy if they declined to attend;

•    Actively promoted the meeting on Facebook, and encouraged attendance in support of their position opposing the recognition and settlement agreement; and

•    Arranged for the hire of a coach to drive from Melbourne to the location of the authorisation meeting (with funding provided by First Nations).

These efforts did not result in the attendance of substantial numbers of native title holders who supported their position but did increase the awareness of potential native title holders, giving them the opportunity to participate. This contradicts the assertions that the authorisation meeting was improperly notified or that it proceeded without the knowledge of a large group of native title holders. First Nations was entitled to take these efforts into account when assessing if ‘all reasonable efforts’ had been made, although the efforts of the objectors are legally insignificant compared with the efforts of TLWC ensuring notice was provided to its approximately 300 members.

239    This is a somewhat unusual submission, to say the least. On the one hand, by picking up the statutory language of “efforts”, it appears to seek to use the conduct of the objectors in obtaining 186 proxy votes as forming part of its own “reasonable efforts”; on the other it describes the conduct of objectors (including the gathering of proxy votes) as “legally insignificant”. It could neither rationally nor reasonably be said that the views of 186 people were numerically insignificant, even against the 300 people TLWC is said to have contacted, and certainly not against the 100 people who attended the authorisation meeting: see [139] of delegate’s reasons.

240    At [133], the delegate’s only finding about the proxy votes was:

The information that 186 persons provided proxies showing they did not support the authorisation of the ILUA suggests, in the absence of cogent contrary evidence, they were aware of the meeting but chose not to attend whereas others did take this opportunity and decided to participate, including in the adoption of the decision making process. I do not consider there was any obligation to make further enquiries with those who provided a proxy when their identity and whether they could reasonably be considered to hold or may hold native title were not known, there was a motion to accept the proxies as being defeated by those who had participated, and the ILUA being subsequently authorised.

241    Thus, the delegate appears to have considered the proxy votes only in relation to the second limb of s 203BE(5) – whether all persons so identified authorised the making of the ILUA. With respect, the rationality of this reasoning is difficult to see. The delegate finds (or recognises) that the 186 proxy voters “did not support the authorisation of the ILUA”. She infers they “chose” not to attended, without any apparent basis for such an opinion, and without grappling with the content of the affidavit material (see below). The delegate then appears to accept that the identity of the proxy voters was not known, however again it is difficult to see what probative evidence could have supported this finding. Ms Thorpe’s affidavit, for example, annexes a list of the proxy voters by name, who they are descended from and to whom they gave their proxy. That information was before the delegate. The same absence of a probative basis attaches to the delegate’s finding that whether the people concerned may hold native title was not known. The same list provided at least some basis to infer they did, and certainly that they believed they did. The fact that there were 186 people whose descent links to apical ancestors for the ILUA area had not been investigated by First Nations Legal was simply not addressed by the delegate. First Nations Legal’s somewhat disingenuous submissions that the objectors had done part of its identification work for it was also not addressed.

242    Ground 3 is upheld.

Ground 4: correct inquiry about who were “all persons who hold or may hold Native Title”

243    This ground is expressed as follows:

The Delegate erred in accepting the submissions of First Nations as to research into the composition of the landowning group and the apical ancestors of the group (reasons [86] and [87]) as determinative of whether a broader definition that of “all persons who hold or may hold Native Title” was the correct enquiry. That enquiry was required to be conducted on the basis of evidence which was not put before the Delegate and on which the Applicants were given no opportunity (as procedural fairness required) to address in their submissions.

244    The applicants’ submissions on this ground focus on [86]-[87] of the delegate’s reasons, which state:

The material demonstrates that First Nations investigated the persons who hold or may hold native title in the area covered by the agreement through substantial anthropological, archival, historical and genealogical research while providing representation to the Taungurung native title group for the purposes of the Act and the Settlement Act relating to the Taungurung ILUA. The representation and research included consideration of the composition of the landowning group and the apical ancestors of the group.

On the basis of these efforts, First Nations formed the view that ‘all persons who hold or may hold native title’ in relation to the agreement area include members of the Taungurung People. While it is asserted that First Nations formed the view that the Bangerang are not persons who may hold native title in the area on the basis of the decisions made in the Yorta Yorta matter, I am of the view that it was on the basis of its considerable representation and research that it formed the view that all the persons are the members of the Taungurung group. Through a process of scrutiny and consideration, it was determined that the claims by the Bangerang were wanting. It also has been contended that the efforts the State made during the Settlement Act process should not be regarded, or if the efforts were regarded they were not reasonable. I note that in Bright v NLC, White J found that the efforts of others could be considered when forming an opinion. In my view, the efforts the State undertook while considering the Taungurung’s claim under the Settlement Act, involved a detailed process of considering and evaluating not only the Taungurung’s claim but also adverse submissions it received from BAC, YYNAC and others following a considered notification process, including verifying and interrogating information from other sources such as VAHC. While these efforts were taken pursuant to the Settlement Act, I consider that it was reasonable for the efforts to be considered to form the view who all the persons who hold or may hold native title are. First Nations was also involved in the process by responding to adverse submissions received.

245    The reference to the “efforts of others” and the reference to Bright takes what was said by White J somewhat out of context. His Honour was there referring to reliance by the Northern Land Council on previous investigations and decision of Aboriginal Land Commissioners under the Aboriginal Land Rights Act, and to various native title proceedings, where the Northern Land Council was not a party. That is quite a different circumstance from a representative body proffering investigations done by a State as part of an agreement making process under a legislative scheme avowedly intended to avoid the stringencies of the Native Title Act. Especially so where those investigations were said by the objectors to suffer from the same omissions and failures as those attaching to First Nations Legal’s conduct.

246    Second, it is apparent that the delegate conflated work done for the purposes of the TOS Act with work done for the ILUA. Of course, given the nature of the Taungurung settlement under the TOS Act the two were intertwined. However, as I have explained earlier, the conceptual underpinnings of the two legislative schemes are quite different. The TOS Act involves a wide approach to connection to country, including cultural and historical connections, recognising historic dispossession. It is not as heavily focussed on rights and interests acquired under traditional law and custom, nor on the continuity of the observance of traditional law and custom since sovereignty. The different focus is deliberate, and in part a response to decisions such as Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422.

247    “Cultural” associations with country do not reflect the content of native title in s 223. Nor do language associations, unless language identity reveals something about how traditional law and custom operates to provide for interests in land and waters. Nor are historical associations after sovereignty sufficient. For better or for worse, the focus of the Native Title Act is on the position at sovereignty (or effective sovereignty), and its continuance since then.

248    Third, these passages in the reasons illustrate again that the delegate gave little or no genuine consideration to the material presented to her by the objectors, especially in the affidavits, but also in their submissions, in terms of the contended failure of First Nations Legal to grapple with their objections, including the objectors being told (in 2018, on multiple occasions, according to their evidence) that their objections and concerns were being raised “too late”. I return to this below.

249    However, this is a ground where the way the ground was developed departed substantively from the way the ground is expressed in the originating application. As expressed in the originating application, the ground appears to allege an error by the delegate in not delving herself into the original research and investigations which sat behind the submissions made by First Nations Legal, and its certification. The ground was not developed this way either in writing or orally. Indeed, the submissions in support of it tended to merge with submissions on other grounds.

250    Therefore, as expressed, this ground should be rejected. The delegate’s task was not to conduct an inquiry herself into who held native title, and then decide, having done so, whether the efforts of First Nations Legal could be described as “reasonable”. Her task was to look at the material presented to her – all of it – engage with that material, and decide if the objectors had persuaded her First Nations Legal’s efforts were not reasonable.

251    As I explain in relation to ground 3 and ground 5, I do not consider the delegate performed the task the statute required, in the way required. However, there was no error of the kind alleged by ground 4 and this ground fails.

252    The matters to which I have referred go to the error alleged in ground 5 below, and form part of the basis on which I would uphold that ground.

Ground 5: delegate’s approach to the objectors’ material placed before her

253    This ground is expressed as follows:

The Delegate erred in categorising the Applicants’ Affidavit evidence as “assertions” when that evidence was “sworn evidence” and was not challenged (reasons [69]). That Affidavit evidence was directly relevant to the identity of the 180 people who had provided proxies (Gardiner Affidavit [23], [32]), Peters Affidavit [42], Thorpe Affidavit [26]) the validity of some of the identified Ancestors and their acknowledged areas of country (Gardiner Affidavit [20] , Peters Affidavit [36], [37], [52], [54], [55], Thorpe [5], [12], [19] ) the deficiencies of the notice process for the Authorisation meeting (Peters Affidavit [31], [41], [46] Gardiner Affidavit [29], Thorpe Affidavit [14], [24], [39]. By reason of the approach to those affidavits taken by the Delegate she failed to take the information contained in them into account in any realistic sense, as she was bound to do.

254    The applicants confirmed by email after the hearing that the references to a “Gardiner Affidavit” in this ground were given in error and should be disregarded. None of the parties relied on any affidavit by Mrs Gardiner in their submissions, and no affidavit was from Mrs Gardiner is listed in the annexure to the delegates reasons as having been before her. I have therefore taken this ground to refer only to the affidavits of Mr Peters, Mr Murray, Ms Thorpe and Ms Xibberas.

255    The applicants submitted that the affidavits were material the delegate was required to take into account, because they were “information given to the Registrar in relation to the matter” within the terms of s 24CK(4). As I understood the respondents’ submissions, they did not dispute that the effect of s 24CK(4) was to make such “information given to the Registrar in relation to the matter” a mandatory relevant consideration as that term is generally understood in administrative law. However, they did dispute that the applicants’ affidavits were information “in relation to” the two limbs of s 203BE(5). They contended the affidavits were information about who held native title in the ILUA area – an inquiry outside the purview of the delegate.

256    It should now be apparent that I reject the respondents’ characterisation of the affidavits, as well as significant aspects of their arguments in relation to many of the grounds which sought to draw a rigid line between material and issues about who were the people who “may hold” native title and the Registrar’s task under s 24CK. There is no such rigid line, as I have explained and as in my opinion White J’s reasons in Bright recognise. It would make a nonsense of the purpose of the provision, and transform the Registrar’s task into an empty and meaningless one, for there to be such a line. An ILUA can only be made, and must be made, by the “native title group”: see s 24CD(1). While this may include a representative body (see s 24CD(3)), when read with s 24EA in particular, the statute intends that it is those Aboriginal and Torres Strait Islander people who hold, or may hold, rights and interests in the land and waters under traditional law and custom who will be the people dealing with land and waters under the future act provisions, including the ILUA provisions. It is those people whom s 24EA binds to the terms of the agreement. The legislative scheme is not designed to facilitate the identification of the wrong people. It is designed to facilitate the identification of the people who hold, or may hold, “native title” as that concept is defined in the Native Title Act. It is not concerned with language groups as language groups, nor people with cultural or historical associations. It is concerned with holders of native title (where there is a determination), and those who can reasonably be described as likely holders of native title (where there is not).

257    Therefore, when the Registrar or her delegate is considering objections under s 24CK, and determining whether she or he is satisfied the objectors have established a representative body did not make reasonable efforts to identify those who may hold native title in the ILUA area, and did not ensure it was those people who authorised the ILUA, it may well be part of the Registrar’s or delegate’s task to examine and assess the material which formed the basis for the efforts undertaken by the representative body; as well as examining material which the objectors contend should have informed those efforts.

258    As I have also explained earlier in these reasons, the scope of the task for the representative body (and therefore the scope of the task for the Registrar or delegate) will always depend on the factual situation existing for the conclusion of the ILUA. There may be legal certainty about the native title holders because there is a determination of native title (and perhaps, as in Bright, a rejection of other claims for native title). Or, as in the case of the Taungurung ILUA, there may not have even been a native title application, and therefore no material at all prepared for public scrutiny about claims by a group to hold native title. There may be, as in the case of the Taungurung ILUA, a paucity of research directed at the stringent tests and the “at sovereignty” position required for native title, even if there is some research directed at the less stringent tests for the existence of a “traditional owner group” under the TOS Act. All these factual matters will affect, fundamentally, the nature of the task to be performed by the delegate.

259    I find the affidavits were relevant to the delegate’s task, and on the facts of this unusual case, centrally so. The passage in Kemppi at [84] is applicable:

As s 24CK(4) provided, the delegate had to take into account, as a mandatory relevant consideration, any information that the appellants gave in support of their objection and the certificate. Therefore the delegate had to treat that information as a fundamental element in considering whether or not the delegate was satisfied that the requirements of s 203BE(5)(a) and (b) had been satisfied in relation to the certification of the application to register the Adani ILUA by QSNTS: cf: Sean Investments at 329 per Mason J, with whom Gibbs J agreed. In other words, s 24CK(2)(c) required the delegate to make his or her own decision as to whether each of the requirements in s 203BE(5)(a) and (b) were satisfied and the objectors had the onus to establish that one or both of those requirements was not satisfied: Corunna v South West Aboriginal Land and Sea Council (2015) 235 FCR 40 at [61] per Barker J.

260    It is now well established that where an administrative decision maker is required by the statute which defines and constructs her or his task to take a matter into account, the decision maker must actively engage, at an intellectual level, with the content of the information or material presented. The Full Court of this Court re-affirmed these principles in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [29]-[62]. These principles were re-affirmed, and explained, by a five member bench in Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [36]-[38]. The Full Court there emphasised that where a decision maker simply notes or refers to a matter, that is unlikely to be sufficient. What is at stake, and the centrality of the matters put forward, will be critical to the level of engagement required.

261    While s 24CK(4) does not use the verb “consider”, which was the statutory term used in some of the authorities to which the Courts in Carrascalo and Omar referred (eg Tickner v Chapman [1995] FCA 1726; 57 FCR 451), it uses the unequivocal phrase “must take into account any information”, and in my opinion there is no meaningful distinction to be made. The purpose of the provision is to require the decision maker to engage with that material.

262    The importance of doing so is heightened when, as with s 24CK(2)(c), the statute casts an onus on the objectors. The Registrar or her delegate must engage with the material presented by the objectors, and do so in an active and intellectually rational and reasonable way if she or he is to properly perform the task of deciding if the persuasive onus has been discharged.

263    Holding Redlich had provided the four affidavits to the delegate under cover of a letter which relevantly stated:

In the concluding paragraph of our 7 November 2019 letter, we expressed the view that, in circumstances, where the facts are in dispute and given the importance of the decision that the delegate must make in this matter, parties should submit evidence in a form which enables the decision maker to make findings of fact.

We also suggested that there should be directions for both sides to provide the decision maker with statements from representatives of the claim group and each of the objectors and that the documents relied on by the parties should be provided. Notwithstanding that our suggestion has not been taken up at this point, we enclose four affidavits with exhibits that have been filed and served in the Supreme Court proceeding.

These affidavits are relevant to the proposition that the delegate should not be satisfied that all reasonable efforts were made to ensure that all the persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified. The affidavits also go to the issue of whether persons so identified have authorised the making of the agreement.

264    The delegate referred to the four affidavits only very briefly. That she listed them in the annexure to her reasons takes the respondents’ arguments nowhere. This is no evidence that the delegate engaged with the contents of the affidavits at all.

265    It is correct that [12] of the reasons states

I have taken into account the following material in coming to my decision:

•    the material provided to the Registrar during the process of procedural fairness (see Attachment A for an outline of the procedural fairness steps taken)

266    A statement such as this is not conclusive: Omar at [36(f)]. As Omar and Carrascalao, and many other authorities involving template parts of reasons establish, such statements will not prevent a finding that a decision maker did not, in fact, take material into account which she or he was required to consider. Whether or not the decision maker actively engaged with the material she or he was required to engage with will be ascertained from a fair reading of the entirety of the reasons, together with the content of the material before the decision maker, the statutory task and the circumstances in which that statutory task came to be performed. In particular, those parts of the reasons which disclose the specific reasoning of the decision maker on the material before her or him will be the parts which demonstrate, one way or the other, whether the decision maker actively engaged with the consideration or material in question. The statement at [12] of the delegate’s reasons is, I find, no more than a summary of the material before the delegate. It does not disclose any active intellectual engagement with the affidavits, and the remainder of the reasons demonstrate there was none.

267    The only other reference is at [69] of the reasons. This paragraph was the delegate’s summary, in a series of dot points, of the submissions put by Holding Redlich on behalf of the applicants as objectors. It was taken primarily from what the delegate (and Holding Redlich) called “Annexure B”, being a document annexed to the letter of Holding Redlich to the delegate dated 20 June 2019. That Annexure is entitled “Objection to Taungurung ILUA” and is 8 pages long, setting out in summary form the objections made by those people Holding Redlich represented, including the applicants. It was the first tranche of material sent to the delegate, but not the only material.

268    Only one of the delegate’s dot points refers to the affidavits. This is the text of that dot point:

Mr Murray is an elder of the Dhudhuroa First Nation, and claims to hold native title in relation to some of the land or waters in the agreement area through apical ancestors who lived in the areas around Bright, Mount Buffalo and the Ovens Valley.

269    In the footnote to this dot point, the delegate refers to Annexure B again, and then adds:

Further details of those connections are set out in the affidavits provided by Holding Redlich on 29 November 2019.

270    Although there was an affidavit from Mr Murray, this reference is plainly irrelevant to the contents of the other three affidavits. Even as to Mr Murray, this is no more than a cross reference and does not demonstrate that the delegate engaged with the content of Mr Murray’s affidavit, which dealt with a great deal more than a bare assertion of his “connections” to “some of the land and waters” in the ILUA area, although the delegate did not engage with this aspect of the affidavit either.

271    What I have described to this point is more than sufficient to demonstrate there was no active intellectual engagement by the delegate with the affidavits. While it is correct that some of the matters in the affidavits were also the subject of submissions by Holding Redlich, the affidavits were, as the applicants submit, sworn evidence. The point of sworn evidence is that the deponent gives the evidence on the basis of an understanding of the applicable penalties for false evidence. There is a level of seriousness which applies to affidavit evidence, as opposed to ordinary written statements by a person. The fact that the delegate described what was put to her as “assertions”, while not the main point, is also not irrelevant. It does tend to suggest that she did not appreciate, as she should have, that each of the four deponents had sworn to the truth of what was in the affidavits. Granted, the deponents had not been tested, but nor was a submission put to the delegate by First Nations Legal or the State that any part of any of the affidavits should not be accepted because it was untrue.

272    I accept the applicants’ submissions, as they were also put to the delegate, that the content of the affidavits went to both of the requirements in s 203BE(5). Before turning to the affidavits in detail, it is necessary to set out Schedule 3 to the Taungurung ILUA, which listed the apical ancestors whose descendants fell within the term “Taungurung and Taungurung People” as defined in the ILUA. This will contextualise the content of the affidavits.

The identified Taungurung ancestors are:

(a)    Tommy Bamfield

(b)    Lydia Beaton

(c)    Polly Wallambyne

(d)    Billy Hamilton

(e)    William Hamilton

(f)    Lilly Hamilton

(g)    Jessie Hamilton

(h)    John Franklin

(i)    Louisa Shepard

(j)    Elizabeth Hylett/Murchison

(k)    Doctor Billy

273    To illustrate the nature and extent of the content of the affidavits, I describe the content of Mr Peters’ affidavit:

(1)    At [4]-[12] Mr Peters deposed to his descent from the apical ancestor Lizzie Davis (Hylett), and her grandparents Charles Tattambo and Mary. Mr Peters concluded this section of his affidavit by deposing (at [11]-[12]):

I, along with many family members, am Lizzie Davis’ (nee Hylett) direct descendant. She is not a Taungurung ancestor and yet she and her country will be taken from her descendants by the Taungurung RSA.

I do not believe that the Taungurung RSA should be supported by the inclusion of Lizzie Davis (nee Hylett) as an apical ancestor nor do I believe that Ngurai Ilium Wurrung country should form part of the Taungurung claim.

(2)    At [13]-[18], Mr Peters outlined his understanding of the Ngurai Illum Wurrung People and their country. He explained why on his understanding, at sovereignty, the Ngurai Illum Wurrung were a separate landholding group from the Taungurung. He set out the bases for his understanding with detailed references. He attached to his affidavit extracts from the work of the renowned historian Ms Diane Barwick, which supported his understanding, as did the work of others. It is true that at [18], Mr Peters focusses on language, but that focus was, I find, encouraged by the approach taken by First Nations Legal to much of its own views and work, which also placed language identity as an indication of rights and interests in land and waters, rightly or wrongly is not a matter that need here be debated.

(3)    From [19]-[27], Mr Peters describes how he first became aware of his Ngurai Illum Wurrung descent connection in 2013, through a visit to the Melbourne Museum and his identification of one of his ancestors in photograph there. He describes the research he has been given, and what he has done himself. He annexes some of it to his affidavit.

(4)    From [29]-[30] he describes his understanding of the Taungurung settlement agreement and the ILUA, and deposes at [30] to his understanding that one of the consequences of the ILUA is that no native title claim can be made over any land within the ILUA area. That understanding is correct. Mr Peters describes the effect of this, from his perspective as:

rights, heritage and title will be forever extinguished.

(5)    At [31], Mr Peters deposes to how, despite being active in the Ngurai Illum Wurrung community since 2013, it was not until March 2018 that he learned of any contentions that the descendants of Charles and Mary Tattambo were considered to have descent connections with the Taungurung group.

(6)    At [35]-[36], he deposes:

It therefore came to me as a matter of great surprise when, in about March 2018, a person previously unknown to me, Mr Gary Murray, informed me that:

(i)    Taungurung had obtained Registered Aboriginal Party (RAP) status under the Aboriginal Heritage Act 2006 (Vic);

          (ii)    Taungurung had been negotiating the RSA with the Victorian Government under the TOS Act;

        (iii)    as part of the RSA process, Taungurung had claimed my great grandmother Lizzie Hylett as an apical ancestor of the Taungurung;

          (iv)    under the RSA Ngurai Illum Wurrung country would be subsumed within the RSA area; and

   (v)    if Taungurung were successful in their application, our heritage and native title rights would be extinguished in perpetuity by reason of the registration of the ILUA.

I was extremely upset that the effect of claiming Lizzie Davis (nee Hylett) and Ngurai Illum Wurrung country within the RSA would, in effect, result in the loss of my Ngurai Illum Wurrung identity and land and that Ngurai Ilium Wurrung people would not get the chance have a say in a potential RSA in the future or self-determine other opportunities for Ngurai Illum Wurrung people. I was also extremely upset that the process had proceeded as far as it had without consulting me and other direct descendants of Charles and Mary Tattambo.

274    Mr Peters then gives an account of his attempts to contact the Taungurung group, and to engage with First Nations Legal about his views that the Ngurai Illum Wurrung were, and have remained, a separate and distinct group from the Taungurung, including on the particularly relevant issue of holding rights and interests in land and waters within the ILUA area. It is detailed evidence but should be set out because none of it appears in the delegate’s reasons, and none of it appears to have been considered at all by the delegate, despite on its face being a detailed account which was directly relevant to the question of whether First Nations Legal had made reasonable efforts to identify all those people who may hold native title in the ILUA area:

Having learnt of the proposed Taungurung RSA, and wishing to express my opposition, I took the following steps:

a.    in about March 2018, I continued conducting my own further research to see whether there was any connection between the Ngurai Ilium Wurrung and the Taungurung;

b.    in March 2018 I contacted First Nations Legal and Research (FNLRS) (who, I note are the solicitors on the record for the second defendant in this matter) by phone and then had email correspondence with Dr Mahnaz Alimardanian who was a Senior Researcher (Anthropology) at FNLRS. Our email chain is exhibited at “VRP-5”;

c.    in about late June 2018, I went to the Victorian Aboriginal Heritage Council (VAHC) website to look for information about my Ngurai Ilium Wurrung ancestry. I located there a memorandum compiled by Eleanor Bourke. Ms Bourke held the position of Chairperson of VAHC at the time the memorandum was published. Exhibited at “VRP-6” is the VAHC memorandum dated 16 July 2009. For my part, I believe that, at least amongst descendants of Charles and Mary Tattambo, there was a significant group of people who believed that their Ngurai Ilium Wurrung ancestry was important to them, it is part of who they are, and that they had not authorised Taungurung to speak on their behalf;

d.    in June or July 2018 I called VAHC and emailed them. I spoke to Kathy Markotis, who was employed at VAHC. I informed Ms Markotis that the VAHC website contained a document (the memorandum) that was incorrect about Ngurai Ilium Wurrung being a clan of Taungurung and asked her why no notification had been given to us (i.e. identifiable Ngurai Ilium Wurrung people) given we were relatively easy to locate and known to many Taungurung people and members of the Taungurung corporation;

e.    subsequently, on 21 June 2018 I received an email from Ms Markotis directing me to contact the Native Title Unit at the Department of Premier and Cabinet (NTU). Exhibited at “VRP-7” is a copy of the email conversation between me and Ms Markotis;

f.    I subsequently called the NTU and spoke with Dean Cowie by telephone by chance as Anoushka Lenffer was absent. Mr Cowie told me he was the head of the NTU. After listening to my concerns, Mr Cowie said to me words to the effect that there was nothing he could do and that I should have got in earlier. He told me it was all too late;

g.    in about June or July 2018, after speaking to Mr Cowie, I called the Taungurung corporation’s (then known as Taungurung Clans Aboriginal Corporation – TCAC, now known as the Tangurung Land and Waters Council – TLAWC – the second defendant in this proceeding) head office and spoke to Chris Marshall. Mr Marshall was an employee of TCAC. It was a long telephone call and I explained in detail my concerns. I told Mr Marshall that I would like to meet with Taungurung elders to discuss my concerns and share my information about my descendancy. Mr Marshall said he would report our conversation and let the elders know that I requested to meet with them to share my evidence. He indicated a Taungurung representative would get back to me to discuss the matter, if they wanted to discuss it. He said he only worked in the office and was not indigenous and not Taungurung himself. No one from Taungurung ever responded to me;

h.    having heard nothing further from Mr Marshall, I managed, after numerous attempts, to speak to Matthew Burns who is the CEO of TCAC/TLWAC. On requesting a meeting with Mr Burns and elder members of the claim group, I was told that meeting would take a couple of weeks to arrange. My conversation ended with an expectation on my part that Mr Burns would contact me about a meeting. Mr Burns did not contact me;

i.    I called Mr Burns again leaving a telephone message, he then contacted me by return telephone call. I explained that I wanted to talk to the elders about my concerns. He said he would get back to me and never did;

j.    in late August I attended the FNLRS office and had a long meeting with Di O’Rorke and Tim Pilbrow, both of whom I believe are or were employed as anthropologists by FNLRS. During that meeting I explained my family’s connection to Lizzie Davis (nee Hylett) and, through her, to Charles Tattambo and Mary. I expressed my concern that members of my family had been coopted into the Taungurung claim without being informed or given an opportunity to express a preference. I showed them both the research I had compiled and also other references confirming our family connections from other researchers. Both Mr Pilbrow and Ms O’Rorke acknowledged to me the validity and weight of the evidence as being genuine proof of our family’s descent. They said they would inform Taungurung representatives;

k.    in an email sent on 17 August 2018, I requested Ms O’Rorke and Mr Pilbrow to provide me with copies of “the connection stories of Lizzie (Hylett) used in the Taungurung claim, and copies of the connection stories used to claim the lands downstream from Seymour down to Toolamba. Exhibited at “VRP-8” is an email chain between me, Di O’Rorke and Tim Pilbrow of FNLRS;

i.    on 20 August 2018, I received an email from Ms O’Rorke. In her email Ms O’Rorke:

a.    Accepted that I had demonstrated descent from Lizzie Hylett/Murchison/Davis and that this meant that I was supposedly Taungurung (which I do not believe I am);

b.    Explained that she did not have access to documents to confirm a link between Lizzie Davis (nee Hylett) and Charles Tattambo and Mary, and requested me to provide documents to demonstrate that link;

c.    Advised me that I could inspect but not have copies of the FNLRS Taungurung connection material;

See Exhibit VRP-8.

m.    on 30 August 2018, I attended the offices of FNLRS and inspected some Taungurung claim connection documents (under supervision) relating to my ancestor Lizzie Davis (Nee Hylett). As a result of this examination of the documents, I concluded that their research was incorrect based on our family’s long term knowledge (with stories, genealogy and photographs) and my recent research and further understanding of my family and ancestors. I later received some extracts of FNLRS research via Holding Redlich but this research does not change my view that the research is inaccurate;

n.    on 22 August 2018, I wrote by email to the Premier and the Minister for Aboriginal Affairs requesting that they take action to intervene to remove the descendants of Lizzie Davis (nee Hylett) from the proposed RSA Agreement. Exhibited at “VRP-9” is a copy of the email. No one has ever answered my email;

o.    on 2 September 2018, I sent an email to Ms O’Rorke and Mr Pilbrow stating my conclusions from the inspection of the documents and requested them to take steps through the FNLRS lawyers and with the Taungurung group to rectify the problems I raised. A copy of the email is at VRP-8. I do not believe I received a response to this email;

p.    on 3 October 2018 I wrote to Jana Stewart in the office of the Minister for Aboriginal Affairs reiterating my concerns. Exhibited at “VRP-10” is the 3 October 2018 email. I did not receive a response;

q.    on 12 October 2018, I attended a meeting at FNLRS with lawyers from Holding Redlich. Taungurung representatives were present with their FNLRS lawyers and FNLRS researchers. The meeting was not productive in resolving any issues and the sense I got was that we were again “too late” to have our claims heard; and

r.    in the week commencing 24 September 2018, I attended the Elders Treaty Meeting at the Pullman Hotel in Melbourne. I met Mick Harding there. This is the first time I had met Mr Harding. I understand Mr Harding says he is an Elder of the Taungurung and he is active in the TCAC. In the course of that event, I requested to meet with Mr Harding to go through the evidence I had compiled and my concerns with him and other Taungurung elders. We exchanged personal details. He said he would get back to me. He never got back to me despite a number of text messages and phone calls I made to him.

Between March 2018 and the final authorisation meeting on 20 October 2018, I had many discussions with other plaintiffs in these proceedings who were concerned about the Taungurung RSA including Ngurai Illum Wurrung apical ancestors, Ngurai Illum Wurrung Country, Waywurru apical ancestors and Waywurru Country and Dhudhuroa Country.

Each of the plaintiffs were strongly opposed to the direction being taken by the Taungurung group and all sought to be excluded from the Taungurung RSA. They have also said to me that they also strongly believe that no one has the right to extinguish the cultural heritage rights of another Aboriginal group. It is culturally forbidden or illegal under traditional law. We discussed the possibility that, subject to being removed from the Taungurung RSA, we would work towards an RSA involving the Ngurai Illum Wurrung group, the Waywurru group, the Dhudhuroa group and the Yaitmaithang group.

In the lead up to the authorisation meeting, we authorised Holding Redlich to write to FNLRS foreshadowing motions to, in effect, excise from the RSA the Ngurai Illum Wurrung apical ancestors, the Ngurai Illum Wurrung Country, the Waywurru apical ancestors and Waywurru Country and the Dhudhuroa Country. We were also aware that there were many people who supported our position who would not, for various reasons, be able to attend the meeting. The Holding Redlich letter advised that we would attend with proxies for a number of those people. The letter also advised of motions we would seek to put to the meeting. Exhibited at “VRP-11” is the Holding Redlich letter dated 19 October 2019.

Prior to the 20 October 2018 authorisation meeting I asked members of my family and members of the broader Ngurai Illum Wurrung descendants group whether they had seen or received the FNLRS notice of the Taungurung RSA authorisation meeting. No one I spoke to had seen it or was aware of it other by me bringing it to their attention.

I drew attention to the contents of the authorisation meeting notice by email, and by posting it to the family page on Facebook. I also telephoned those whom I had contact details for and informed them of what was going on and to seek their authority to give a proxy for them. I obtained 13 proxies from descendants who could not attend at short notice. I was appointed as their proxy on the understanding that I would vote to exclude Lizzie Davis (nee Hylett) as an apical ancestor and Ngurai Illum Wurrung country from the Taungurung claim. All of the people who attended the meeting who are descendants of Charles Tattambo being Joanne Layton, Aunty Joyce Layton, Faye Cole, Gloria Davis and her two children Stacey and Paul) and me, opposed the RSA. That is, we accepted that Charles Tattambo was part of the Ngurai Illum Wurrung group, and we did not consider ourselves to be part of the Taungurung group and did not wish Charles Tattambo nor Lizzie Davis (nee Hylett) to be regarded as apical ancestors for the purposes of the Taungurung RSA.

I note that the authorisation meeting was, however, attended by a woman who claims to be a Charles Tattambo descendant, namely, Carlene Button. I do not agree that Ms Button is a descendant of Charles Tattambo. I have, subsequent to the meeting, had unsolicited correspondence with Ms Button in which Ms Button has traced her ancestry to Mary Ligomunning and claimed that Mary Ligomunning was the ‘Mary’ married to Charles Tattambo. My research shows that, while Charles Tattambo married a woman named Mary it was not Mary Ligomunning. Mary Ligomunning, an aboriginal, married a William Hamilton.

Their children are recorded as ‘half caste’. Meaning they had a white father. Charles Tattambo was not white, he was a full blood Aboriginal, as was Mary Tattambo.

Prior to the authorisation meeting, I attended two information meetings run by FNLRS. One of the information meetings was held at the Healesville RACV Club. The other at the Radisson on Flagstaff in William Street, Melbourne. Both meetings, were conducted by Daniel Kelly (a lawyer employed by FNLRS). Each meeting was attended by approximately 12 people. I was the only Ngurai Illum Wurrung descendant present at both meetings. I told both the meetings that I was Ngurai Illum Wurrung and that I did not identify as Taungurung. I said that there had been mistakes in their research that caused me and my groups to be falsely identified as Taungurung. At the Healesville meeting, a Taungurung person, Lee Healy (who was at that time employed by the Victorian Aboriginal Corporation for Languages – VACL) addressed the meeting and agreed with me.

I understand Ms Healy to be an authority on aboriginal languages in Victoria. I understand that she co-authored a Taungurung dictionary. In a chance meeting at the VACL office subsequently, Ms Healy told me that she had previously been engaged by the Taungurung to undertake research for their RSA claim. She told me that that she disagreed with Taungurung’s plan to include Ngurai Illum Wurrung in the Taungurung RSA. She also said that her engagement had been terminated by TCAC CEO Matthew Burns because she did not agree that Ngurai Illum Wurrung language was a Taungurung language. I note my understanding that historically Taungurung had also been called Doung Wurrung and the two Wurrung suffixes identify two separate language groups.

Meetings of Taungurung Claim Group

As noted above, I first became aware of the Taungurung claim in March 2018. To my knowledge no person in my broader family ever received any notices from FNLRS until prior the RSA meeting other than through me telling them about the authorisation meeting.

It was not until about July/August 2018 that started to receive notices of Taungurung meetings. The only authorisation meeting of members of the Taungurung group I attended was the Authorisation Meeting on 20 October 2018 at which I held 13 proxies. At the meeting, I recognised seven descendants of Lizzie Davis (nee Hylett). There were descendants of other Ngurai Illum Wurrung ancestors present including Margaret Gardiner, who I understand is Ngurai Illum Balug and Taungurung, Annette Xiberras who I understand is a descendant of Tooterie and Liz Thorpe who I understand to be descended of Tooterie and Louisa Sheppard.

(Emphasis added.)

275    In my opinion if the delegate had actively engaged with this evidence, it would have been readily open to her to be persuaded that First Nations Legal’s general statements about its processes, and about the thoroughness and accuracy of its research, could not be taken at face value (which is, in my respectful opinion, what the delegate did). It would have been readily open to her to be persuaded that there were quite different perspectives available on who had been consulted and who had not, and indeed what the ethnographic and historical research could be seen to disclose – indeed, what it might be seen not to disclose or resolve. It would have been readily open to her to have been persuaded that Aboriginal people such as Mr Peters were not the only ones who had qualified and informed views that the Taungurung and the Ngurai Illum Wurrung were properly seen as separate and distinct groups, and it may not be the case at all that it was reasonable to see them as holding common native title over the whole of the ILUA area. It would have been apparent that one view of the narrative of what had happened was that the fact that these issues were not known to people such as Mr Peters until mid-2018 led to First Nations Legal and the Taungurung group wanting to gloss over the differences being raised, because it was all “too late”, the negotiations with the Taungurung-led negotiating team having progressed to far to be readily undone.

276    All these conclusions would have been readily open to the delegate had she actively engaged with the material. Such conclusions would have readily supported a conclusion that the objectors had discharged their onus under s 24CK(2). She would not have been bound to reach these conclusions, there were factual matters for the delegate to weigh. The point is that she did not engage in that process at all.