Federal Court of Australia

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

SUMMARY

In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at www.fedcourt.gov.au together with this summary.

In October 2018, the Victorian government entered into a number of agreements with a corporation called the Taungurung Clans Aboriginal Corporation, which represented a group of First Nations people described as the Taungurung Traditional Owner Group. These agreements were the culmination of a long period of negotiation, broadly under the auspices of the Victorian Traditional Owner Settlement Act 2010. The Traditional Owner Settlement Act offers an alternative pathway for First Nations peoples to the federal Native Title Act 1991. The Traditional Owner Settlement Act was enacted in circumstances where the Victorian Parliament acknowledged that not all First Nations peoples would be able to meet the requirements to prove native title under the Native Title Act, due to their dispossession from their country, and the dislocation caused to their connection with their country, after European settlement. The Traditional Owner Settlement Act provides another pathway for First Nations peoples to secure recognition of their culture, and their special relationship with their land through the negotiation of agreements that can recognise Victorian traditional owner rights, and confer rights on traditional owner groups as to access to, and ownership or management of public land, as well as various decision-making rights in relation to the use and development of land and the use of natural resources.

However, the Traditional Owner Settlement Act also provides for a certain kind of agreement, known as an Indigenous Land Use Agreement (ILUA), to be part of any settlement package. An ILUA is a statutory agreement created by the federal Native Title Act. It involves an agreement by those people who “hold native title”, or “may hold native title”, with third parties such as State governments. ILUAs with other landholders such as mining companies and pastoral lessees are also common.

The Taungurung Traditional Owner Group decided to enter into an ILUA with the Victorian government as part of its settlement package. The Taungurung ILUA is an “area ILUA” under the Native Title Act, and covers an area of more than 20,000 square kilometres consisting of land and waters south of the Murray River from Rochester to Wangaratta to the Great Dividing Range. Relevantly, the Taungurung ILUA includes an agreement that the Taungurung will not exercise their native title rights over the area the ILUA covers, in exchange for certain economic and non-economic benefits for the Taungurung Traditional Owner group. The ILUA is binding on all traditional owners of the land and waters it covers, whether or not they agreed to it being made and whether or not they agree with it at all.

To become fully legally effective, including to be binding on all those who hold or may hold native title in the ILUA area, an ILUA must be registered under the Native Title Act. A statutory office holder called the Native Title Registrar is the person responsible for deciding whether or not to register an ILUA. If an ILUA meets certain statutory conditions, the Registrar must register it. If it does not, the Registrar must not register it. A delegate of the Registrar may make this decision.

This proceeding concerns a decision of a delegate of the Native Title Registrar to register the ILUA between the Taungurung Clans Aboriginal Corporation and the Victorian Government. The applicants have applied to the Court to have the delegate’s decision reviewed by this Court. The State of Victoria, and the Taungurung Land and Waters Council representing the Taungurung Traditional Owner group, were parties to the proceeding and have defended the delegate’s decision. As is the usual practice, the Registrar and her delegate did not take an active part in the proceeding and they have agreed to abide by the decision of the Court.

The Court’s decision is not a decision about who are the proper native title holders or traditional owners of the area that the ILUA covers. It is also not about whether the Court agrees with the delegate’s decision to register the ILUA. The Court’s decision only concerns whether the delegate properly understood and applied the legislation and other law governing her decision; whether the delegate adopted a legally fair process; and whether she lawfully considered all the information before her in making her decision. Before the ILUA could be registered, the Native Title Act required that the ILUA meet certain conditions. One of the conditions was that the ILUA be certified by the Native Title Representative Body for Victoria. At present, that body is First Nations Legal and Research Services, who were also the lawyers representing the Taungurung Land and Waters Council in this proceeding. Under s 203BE(5) of the Native Title Act, First Nations Legal could only properly certify the ILUA if “all reasonable efforts have been made to ensure that all persons who hold or may hold native title” in the ILUA area had been identified, and those persons authorised the ILUA to be made. Part of the delegate’s task was therefore to consider whether it was correct that “all reasonable efforts” had been made.

The ILUA was authorised at a meeting of the Taungurung people on 20 October 2018. After this, First Nations Legal certified that the requirements of s 203BE(5) had been met. In December 2018, First Nations Legal then applied to the Registrar to register the ILUA. The registration process has a number of steps, and took most of 2019 to complete. It took longer than usual through no fault of the delegate, but because of the potential effect of another Federal Court decision on the Taungurung ILUA.

As part of the registration process, the National Native Title Tribunal gave public notice that First Nations Legal had applied to register the ILUA. At this stage, anyone who claims to hold native title in the relevant area and who opposed the ILUA was entitled to object to its registration, and have their objections considered by the delegate. There were a considerable number of objections by a wide range of First Nations people and it is not necessary to describe them all. The applicants in this proceeding are some of the people who provided objections to the delegate.

The applicants all claim to hold native title in parts of the ILUA area. They say that their people – the Ngurai Illum Wurrung, the Waywurru, and the Dhudhuroa – also hold native title in parts of the area covered by the ILUA. They oppose ILUA. In this Court, the applicants argued that the delegate made important legal mistakes in the way she made her decision to register the ILUA, including by:

    not ensuring they had access to a document under the Traditional Owner Settlement Act called the “Part A Threshold Statement”;

    not properly considering the information the applicants gave the delegate about their claims to hold native title;

    not properly considering the ways they tried to speak up in the process of making the ILUA and were told that they were “too late” to participate or object; and

    not engaging critically with the claims First Nations Legal made about how it had fulfilled the “all reasonable efforts” requirement.

The applicants asked the Court to make orders setting aside the delegate’s decision, and removing the ILUA from the register of ILUAs.

The Court has not agreed with all of the applicants’ arguments, but has agreed with some of them. The Court has found that the delegate made two errors of law, by:

    asking herself the wrong question and focussing too much on the concepts relevant to the Traditional Owner Settlement Act, and not enough on the concept of “native title” under the Native Title Act; and

    failing to consider affidavit material put before the Registrar which the Court has found she was required by the Native Title Act to consider.

In ordinary circumstances, this conclusion would lead to the Court upholding the applicants’ application for judicial review and making orders in their favour setting aside the decision of the delegate and requiring the delegate to make her decision again.

However, because the ILUA is already registered the Taungurung Land and Waters Council has submitted the Court may not be able to make such orders in favour of the applicants. This point was raised very late by the Council, only at the oral hearing on 10 December 2020. The Court informed the parties they would all have a chance to make further arguments about what orders the Court should make if this became necessary. Due to the Court’s conclusions in favour of the applicants, those further arguments are now necessary. Therefore, the only orders the Court has made today are directions to the parties to provide submissions about what relief the Court can and should grant to the applicants.

MORTIMER J

9 FEBRUARY 2021