Federal Court of Australia
Bell v Native Title Registrar [2021] FCA 229
ORDERS
TERRANCE ALAN BELL and others named in the Schedule Applicants | ||
AND: | NATIVE TITLE REGISTRAR and others named in the Schedule Respondents | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Time be extended for the applicants to rely on the originating application.
2. The originating application be dismissed.
3. The applicants pay the respondents’ costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
GRIFFITHS J:
Introduction
1 This proceeding involves a judicial review challenge solely under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) to a decision dated 28 August 2020 by a delegate of the Native Title Registrar. In that decision, the delegate decided to accept for registration under s 190A of the Native Title Act 1993 (Cth) (NT Act) a further amended claimant application for determination of native title rights and interests under s 61 of that Act. The further amended claimant application had been filed in the Federal Court in a proceeding which has the file number QUD331/2017. That application was made on behalf of the Danggan Balun (Five Rivers) People. It covers land and waters extending inland from Tweed Heads following the border between Queensland and New South Wales and north through Beaudesert to Woodridge.
2 The original s 61 application was made on 27 June 2017 and was accepted for registration under s 190A(6). On 8 November 2018, orders were made under s 66B of the NT Act to replace the applicant. On 7 July 2020, further orders were made under s 66B of the NT Act to replace the applicant and amend the application. On 14 July 2020, the further amended claimant application was filed in this Court (with leave). In accordance with s 64(4) of the NT Act, on 15 July 2020 the Court provided a copy of the further amended claimant application to the Native Title Registrar, which then enlivened the Registrar’s duty to consider the claim made in the further amended application for registration under s 190A(1) of the NT Act.
3 The further amended claimant application partly overlaps with a separate and later application for determination of native title rights and interests filed in the Court on 4 August 2020. It has the file number NSD876/2020. This separate application was made on behalf of the Tweed River Bundjalung People. On 16 September 2020 (i.e. after the delegate’s decision which is challenged in the present proceeding), a different delegate of the Native Title Registrar refused to register the claimant application in NSD876/2020. It is evident that, in doing so, the delegate took into account submissions provided by the applicant in QUD331/2017.
4 Some of the people who constitute the applicant in the Tweed River Bundjalung People application (i.e. NSD876/2020) are also the applicants in the present ADJR Act proceeding. There are 4 such people, namely Sandra Lorrel Bungaree King, Terrance Alan Bell, Paul John Buxton and Rebekah Joan Clarke. The other person constituting the applicant in the Tweed River Bundjalung People application but who is not an applicant in the present ADJR Act proceeding is Benjamin John Travers.
5 The other seven people who are applicants in the present ADJR Act proceeding, together with the four persons mentioned immediately above, are all named respondents in QUD331/2017.
6 When the originating application for judicial review in the present proceeding was filed on 14 October 2020, the only named respondent was the Native Title Registrar. Subsequently, on 3 November 2020, the Court made orders joining as respondents in that proceeding the seven persons who now constitute the applicant in QUD331/2017 (i.e. Gordon “Ted” Williams, Rose Page, Louisa Bonner, Shaun Davies, Israel Bundjuri, Germaine Paulson and Anthony Dillon). On 21 October 2020, the Native Title Registrar filed a submitting notice save as to costs. Accordingly, the second to eighth respondents are the active respondents in the present proceeding.
7 The delegate gave detailed reasons for her decision to accept for registration the further amended claim application lodged by the Danggan Balun (Five Rivers) People (i.e. in QUD331/2017).
8 The applicants in the present proceeding challenge the lawfulness of the delegate’s decision on the following grounds under the ADJR Act:
(a) The delegate failed to afford them natural justice (or procedural fairness), contrary to s 5(1)(a) of the ADJR Act.
(b) The delegate’s decision was an improper exercise of the power conferred by the NT Act, contrary to s 5(1)(e) of the ADJR Act, because:
(i) the delegate identified the wrong issue in addressing the procedural requirements of s 190B(5)(a), (b) and (c) of the NT Act; and
(ii) the delegate failed to take into account a relevant consideration, namely information which did not form part of the further amended claimant application itself, contrary to s 5(2)(b) of the ADJR Act.
(c) The delegate’s decision involved an error of law contrary to s 5(1)(f) of the ADJR Act by failing to consider the material filed by the applicants in QUD331/2017 (acting there in their capacity as respondents in those proceedings).
9 There is a threshold question whether the applicants have standing to bring the present judicial review challenge, which I will consider shortly. The applicants also say that they require an extension of time to bring their challenge.
10 It is desirable now to outline in greater detail some of the procedural background to the matter with particular reference to the proceeding in QUD331/2017, which has been case managed by Reeves J.
Procedural history in Danggan Balun claim proceeding (QUD331/2017)
11 As noted above, all but one of the applicants in the present judicial review proceeding are respondents to the proceeding in QUD331/2017. Those respondents opposed applications brought by the Danggan Balun (Five Rivers) People in QUD331/2017 to:
(a) replace the authorised applicant in that s 61 native title determination application originally filed on 27 June 2017; and
(b) seek leave to file the further amended claimant application.
12 In his reasons for judgment dated 7 July 2020 in Williams on behalf of Danggan Balun (Five Rivers) People v State of Queensland [2020] FCA 938, Reeves J explained why he rejected the various grounds advanced by the respondents in those proceedings in opposing the interlocutory application. In brief, the grounds of opposition were as follows. First, in relation to the proposed replacement of the applicant in QUD331/2017, the relevant respondents claimed that, contrary to the applicants’ stated position, the applicants in that proceeding did in fact have a decision-making process under traditional laws and customs which should have been followed in accordance with s 251B(a) of the NT Act at the authorisation meetings held on 15 February 2020 (which purported to authorise the applicants’ name change and the filing of the further amended claimant application).
13 Secondly, as to the relevant respondents’ opposition to leave being granted to file the further amended claimant application, they contended that such leave was beyond the ambit of r 8.21 of the Federal Court Rules 2011 (Cth) (2011 FCRs).
14 Thirdly, in relation to that same matter, the relevant respondents claimed in their originating application in the present proceeding that the proposed further amended claimant application was flawed because it included two additional apical ancestors (and their descendants) who should not have been so included because neither the existing nor replacement applicant had established any association or connection between each of those ancestors and the claim area. The relevant respondents claimed that these two apical ancestors (namely Kitty Sandy and her son, and John ‘Johnny’ Bungaree) were properly regarded as apical ancestors in the overlapping claim in NSD876/2020. As will shortly emerge, in their written reply submissions, the applicants identified two further apical ancestors as being relevant to this claimed judicial review error.
15 It is unnecessary to summarise Reeves J’s comprehensive reasons for rejecting each of these grounds of opposition. It is sufficient for present purposes to emphasise that the applicants in the present ADJR Act proceeding actively participated in the proceeding before Reeves J, however, their opposition to the interlocutory relief sought by the applicant in QUD331/2017 was unsuccessful. The unsuccessful respondents did not seek leave to appeal the orders made by Reeves J on 7 July 2020.
The legislative framework summarised
16 The effect of registration of an application for determination of native title includes that the claimant acquires the right to negotiate under Div 3, Pt 2, Subdiv P of the NT Act. Commonwealth, State and Territory governments must give registered native title claimants, as defined in s 253, notice under s 29 of the NT Act of any relevant future acts that may affect the claim area. This may open the opportunity for the registered native title claimant to negotiate an indigenous land use agreement.
17 As Mansfield J observed in Quall v Native Title Registrar [2003] FCA 145; 126 FCR 512 at [22], the Native Title Register, on which all registered applications for determination of native title are recorded, is “a public document [having] considerable public significance”.
18 Extensive amendments were made to the NT Act by the Native Title Amendment Act 1998 (Cth). They included the insertion into the Act of ss 190A-C relating to the registration of applications for the determination of native title. Section 190A(1) obliges the Registrar to consider any application which has been provided under either ss 63 or 64(4), with a view to determining whether it should be accepted for registration. Sub-section 190A(3) sets out various categories of information to which the Registrar must have regard in considering a claim. It provides:
190A Registrar to consider claims
…
Information to be considered
(3) In considering a claim under this section, the Registrar must have regard to:
(a) information contained in the application and in any other documents provided by the applicant; and
(b) any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and
(c) to the extent that it is reasonably practicable to do so in the circumstances—any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar’s opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim;
and may have regard to such other information as he or she considers appropriate.
…
19 It is important to emphasise at this point that while s 190A(3) identifies three categories of information to which the Registrar must have regard to in considering whether or not to register a claim, there is a residual discretion vested in the Registrar to have regard to such other information as he or she considers appropriate. Having regard to the language of s 190A(3), unlike the information described in paragraphs (a)-(c) thereof, the residual discretion referred to at the end of s 190A(3) cannot be characterised as constituting a mandatory relevant consideration. This is relevant to ground 2 of the originating application.
20 Under s 190A(6), the Registrar is obliged to accept a claim for registration if the conditions set out therein are satisfied. Those conditions include a requirement that the claim satisfies all the conditions in s 190B (which deals mainly with the merits of the claim) and s 190C (which deals with procedural and other matters).
21 Sections 190B and 190C are relevantly as follows:
190B Registration: conditions about merits of the claim
(1) This section contains the conditions mentioned in subparagraph 190A(6)(b)(i).
Identification of area subject to native title
(2) The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.
Identification of native title claim groups
(3) The Registrar must be satisfied that:
(a) the persons in the native title claim group are named in the application; or
(b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.
…
Factual basis for claimed native title
(5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:
(a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and
(b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and
(c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
Prima facie case
(6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.
Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a “right to negotiate” process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a “right to negotiate” process).
…
190C Registration: conditions about procedural and other matters
(1) This section contains the conditions mentioned in subparagraph 190A(6)(b)(ii).
Information etc. required by sections 61 and 62
(2) The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.
No previous overlapping claim groups
(3) The Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application, if:
(a) the previous application covered the whole or part of the area covered by the current application; and
(b) an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and
(c) the entry was made, or not removed, as a result of consideration of the previous application under section 190A.
Identity of claimed native title holders
(4) The Registrar must be satisfied that either of the following is the case:
(a) the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or
Note: An application can be certified under section 203BE, or may have been certified under the former paragraph 202(4)(d). A representative Aboriginal/Torres Strait Islander body may certify the application, even if it is only the representative body for part of the area claimed.
(b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.
Note: The word authorise is defined in section 251B.
…
22 Sub-section 190C(3) is at the heart of the applicants’ judicial review challenge. Registration must be declined unless the Registrar is satisfied that there are no previous overlapping claim groups. The Full Court noted in Western Australia v Strickland [2000] FCA 652; 99 FCR 33 (Strickland Full Court) at [9] that the form of s 190C(3) is “awkward”. As their Honours explained there:
… The more common drafting technique is, first, to specify any conditions that attract a statutory requirement, and then specify the requirement itself. However, it is tolerably clear that the requirement expressed in the opening clause of the subsection arises only if the conditions specified in paras (a), (b) and (c) are satisfied.
23 The Full Court considered that the Explanatory Memorandum supported this construction of s 190C(3). Reference was made to that part of the Explanatory Memorandum which stated that “the purpose of the (new) registration test is to ensure that only claims which have merit are registered on the Register of Native Title Claims”. The Explanatory Memorandum stated in Ch 29.25:
No previous overlapping claim groups
29.25 The Registrar must be satisfied that no member of the claim group for the application or amended application is a member of the claim group for a registered claim which was made before the claim under consideration, which is overlapped by the claim under consideration and which itself has passed the registration test (subsection 190C(3)).
24 Returning now to summarise the primary relevant provisions of Pt 7, it should be noted that where an application for determination of native title is filed in the Court under s 61, the Court’s Chief Executive Officer is obliged, as soon as practicable, to give the Native Title Registrar a copy of the application together with other material set out in s 63. Section 64 provides for the amendment of an application and requires the Court’s Chief Executive Officer to give a copy of an amended application to the Native Title Registrar as soon as practicable. It is unnecessary to set out the terms of s 64 because that provision was not the source of Reeves J’s decision to grant leave to amend the native title claimant application. Rather, that source was r 8.21 of the 2011 FCRs.
25 Section 66 obliges the Native Title Registrar to give notice of an application which is received under s 63. Notice must be given to the State or Territory in which the area covered by the application occurs, as well as to representative bodies for the area covered by the application (see s 61(2) and (3)). The Registrar is also obliged to notify the public in accordance with s 61(3)(d). Notably, however, there is no statutory obligation on the Registrar to notify a rival unregistered native title claimant, such as the applicant in NSD876/2020. Sub-section 66(3) relevantly provides:
66 Notice of application
…
Notice to be given
(3) Subject to this section, the Registrar must:
(a) give notice containing details of the application to the following persons or bodies (other than the applicant in relation to the application):
(i) any registered native title claimant in relation to any of the area covered by the application; and
(ii) any registered native title body corporate in relation to any of the area covered by the application; and
(iii) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and
(iv) subject to subsection (5), any person who when the notice is given, holds a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory; and
(v) the Commonwealth Minister; and
(vi) any local government body for any of the area covered by the application; and
(vii) if the Registrar considers it appropriate in relation to the person—any person whose interests may be affected by a determination in relation to the application; and
(b) give a copy of the notice to the Federal Court; and
(c) if any of the area covered by the application is within the jurisdictional limits of a State or Territory—give a copy of the notice to the State Minister or Territory Minister for the State or Territory; and
(d) notify the public in the determined way of the application.
…
26 It is significant to note that s 66(6)(a) provides that in the case of a claimant application, notice must not be provided under s 66(3) until the Registrar (or delegate) has decided whether or not to accept the claimant application for registration in accordance with s 190A.
27 Sub-section 66(10) identifies the information to be provided in a notice given under s 66(3)(a) or (d). It relevantly provides:
Contents of notice
(10) A notice under paragraph (3)(a) or (d) must also include a statement to the effect that:
…
(c) in any case—a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day (as defined in subsection (8)), or, after that period, get the leave of the Federal Court under subsection 84(5) to become a party.
…
28 Section 67 deals with overlapping native title determination applications. It provides:
67 Overlapping native title determination applications
(1) If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.
Splitting of application area
(2) Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.
The delegate’s reasons summarised
29 As noted, the delegate gave comprehensive reasons in support of her decision to accept the amended claimant application for registration. It is unnecessary to summarise all those reasons. It is sufficient to focus upon those parts of the reasons which related to the grounds of challenge in the present proceeding. Apart from the general complaint of procedural unfairness, those grounds primarily relate to the delegate’s finding that the disputed apical ancestors were validly included in the further amended claimant application and the information which was not taken into account by the delegate on that subject.
30 The delegate said that, having considered s 190A(3), she considered that the amended claimant application and information in any other document provided by the applicant was “the primary source of information for the decision I made” (at [7]). Accordingly, she said that she had taken into account information contained in the application and accompanying documents, the geospatial assessment prepared by the National Native Title Tribunal’s Geospatial Services on 17 July 2020 and the results of her own searches using the Tribunal’s registers and mapping database.
31 The delegate described her understanding of procedural fairness requirements at [8]. She said that she had ensured relevant procedural fairness requirements had been complied with by inviting the State of Queensland to make any submissions on the issue of registration and by informing the applicant for registration that any additional information should be provided. Apparently neither opportunity was taken up.
32 The delegate then discussed at some length her understanding of matters relating to s 190C(2) and (3) by reference to the legislation and relevant case law, including Mansfield J’s decision in Northern Territory of Australia v Doepel [2003] FCA 1384; 133 FCR 112, Mansfield J’s separate decision in Hazelbane v Doepel [2008] FCA 290; 167 FCR 325 and Strickland Full Court.
33 With particular reference to s 190C(3), the delegate noted at [32] that her search of the Tribunal’s mapping database revealed that the claimant application in NSD876/2020 partly overlapped with the area covered by the application in QUD331/2017. She added, however, that since that other application was only made on 4 August 2020 and had not at that stage been considered for registration, she was satisfied that there was no “previous application” to which ss 190C(3)(a)- (c) applied. This had the consequence, so the delegate found, that she did not need to consider the requirements of s 190C(3) any further.
34 The delegate also explained at some length why she was satisfied that the condition in s 190C(4) (concerning the identity of claimed native title holders) was also met, having regard to the material before her concerning two authorisation meetings held on 15 February 2020.
35 In explaining why she was satisfied with the relevant conditions in s 190B regarding the merits of the claim and, in particular, that there was a sufficient factual basis to support the claim that the native title claim group have, and their predecessors had, an association with the area, the delegate referred to various information set out in the further amended claimant application.
36 It is important to appreciate the structure of that part of the delegate’s reasons for decision relating to her satisfaction that the requirement in s 190B(5)(a) was met. The delegate’s reasons for concluding that she was satisfied that there was a sufficient factual basis for the three conditions in ss 190B(5)(a), (b) and (c) are set out at [81]-[115]. The delegate first described what she considered was needed to meet the condition in s 190B(5). Her analysis may be summarised as follows:
(a) After referring to Doepel (at [17]) and to the Full Court’s decision in Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157; 171 FCR 317 (Gudjala Full Court) (at [57], [83] and [91]), the delegate stated that she “must treat the asserted facts as true and consider whether those facts can support the existence of the native title rights and interests that have been identified”.
(b) The delegate then stated that, although the facts asserted are not required to be proven by the applicant, she needed to be satisfied that the asserted facts provide sufficient detail to enable a “genuine assessment” of whether the particularised assertions regarding the three criteria in s 190B are supported by the applicants’ factual basis material (citing Gudjala Full Court at [92]).
(c) The delegate said that the applicants’ material must be “more than assertions at a high level of generality” and must not merely restate or be an alternative way of expressing the claim (referring inter alia to Gudjala People #2 v Native Title Registrar [2009] FCA 1572; 182 FCR 63 at [28]-[29]; see also Gudjala Full Court at [92]).
(d) The delegate concluded that the test in s 190B(5) “requires adequate specificity of particular and relevant facts within the claimants’ factual basis material going to each of the assertions,” before she could be satisfied of its sufficiency for the purposes of s 190B(5).
37 The delegate said at [86] that the factual basis material was primarily contained in Attachments F and M to the further amended claimant application.
38 With those background matters in mind, the delegate then proceeded to explain why she was satisfied that each of the three elements of s 190B(5) was supported by sufficient material, while noting that she would discuss only those aspects of the material that in her view were most relevant to her consideration.
39 With specific reference to the requirement that there be sufficient factual material to support the assertion that the native title claim group have, and the predecessors of those persons had, an association with the area, the delegate at [88] explained that it was her understanding that this required:
• an association between the whole group and the area, although not all members must have such association at all times;
• the predecessors of the group were associated with the area over the period since sovereignty; and
• there is an association with the entire claim area, rather than an association with part of it or very broad statements which have no geographical particularity.
40 The delegate made clear that her understanding concerning those matters was based upon case law to which she made express reference.
41 At [89] ff, the delegate explained why she was satisfied that there was sufficient factual material to support the assertion that there is an association between the whole group and the area, even though she recognised that not all members must have such an association at all times. This statement of the position accurately reflects what Dowsett J held in Gudjala People #2 v Native Title Registrar [2007] FCA 1167 at [52] (although the appeal against this decision was upheld in Gudjala Full Court, the Full Court did not question the correctness of what Dowsett J said at [52]). In other words, the relevant issue is not whether the Registrar is satisfied that there is sufficient factual material to support an assertion that there is an association between the area and every native title claim group member. Rather, the question focusses upon the sufficiency of the factual material supporting the assertion that there is an association between the whole group and the area.
42 Later in her analysis at [89], the delegate then turned her attention to information concerning the association of some of the apical ancestors and the area.
43 With respect to Kitty Sandy and her son, and John (‘Johnny’) Bungaree/Bungary, the delegate said at [89]:
…
- Kitty Sandy is said to have been traditionally associated with areas south of the application area and likely had rights and interests extending into the claim area. She worked for a pastoralist during the 1860s. Her son is said to have been associated with the mid-eastern and central regions. He married his first wife in the mid-eastern region in 1883 and their children were born in or near the mid-eastern, central and southern regions. Her son married his second wife in the mid-eastern region and the children were born there or near the southeastern region.
…
- John (Johnny) Bungaree/Bungary was connected to the southeastern and central regions of the claim area. He was born in the late 1840s or late 1850s and died near the southeastern region in 1943. He was married around 1882 near the mid-eastern region and his sons were born there in around 1883. His sons were married in the central region in 1911 and 1912. One son died in the central region in 1958 and the other son was buried there around 1959. A particular family group who are descendants of this apical ancestor, has continued strong connection to the central region making them an important family in the region.
…
44 These findings are supported by information relating to those two apical ancestors in Attachment F to the further amended claimant application and, in particular, the following material contained therein (without alteration):
(9) Kitty Sandy, mother of Arthur Ford
a) Kitty Sandy (nd-nd) was the mother of Arthur Ford and was identified as a woman working for pastoralists during the 1860’s. Arthur Ford's 1897 marriage certificate to his second wife Eva Williams and his 1954 death certificate both give his parents as James Ford (ndnd) and Kitty Sandy. Arthur’s marriage certificate and a number of his children’s birth certificates indicate that he was born at Murwillumbah, N.S.W. One of his daughter’s birth certificate specifies his birthplace of "Kynamboom". Kitty Sandy and her son Arthur Ford, are associated with Murwillumbah and Tweed Heads area and Arthur with areas on the Gold Coast, including Southport. Arthur is said by descendants to also have had long term association with the Beaudesert area through his second marriage to Eva Williams (a daughter of Danggan Balun apical William Williams (1847-1927) and Emily Jackey (1853-1929) the daughter of apical Bilin Bilin (c.1879-1944).
b) Arthur’s first wife as Julia Sandy (c.1864-1896) is also an apical ancestor on the Danggan Balun claim. On the 1894 birth certificate for their son Arthur Francis Ford (1894-1916) it was indicated that they married in March 1883 at Nerang. The couple had 10 children together born at Southport, Beaudesert and Murwillumbah.
c) After the death of his first wife Julia, Arthur Ford married Eva Williams at Southport in 1897 Arthur Ford and Eva Williams had 14 children together, who were born at Southport and Murwillumbah. Both Arthur and Eva are buried in the Tweed Heads cemetery.
d) Kitty Sandy, the mother of Arthur Ford appears to have been traditionally associated with the Lower Tweed River-Kynnumboon area, and persons associated with that local country are likely to have held rights and interests which extend into the Danggan Balun claim area.
e) The modern day descendants families of Kitty (mother of Arthur Ford) include the Ford, Bostock, Bylerley, Levinge, Atkins, King, Clarke, Mitchell, Andrews, Sato, Thomson, Mathews, Currie, Christoffell, Clinton, Smeljis, Mowatt, Booka, Buxton, Davidson, Paton, Buchanan, McDonald, Andrews, McDermott and Davies families. Danggan Balun Applicant member Shaun Davies is a descendant of Kitty Sandy.
…
(23) John “Johnny” Bungaree/Bungary (father of Norman Sandy Snr, Lindsay Sandy and Stella Bungera/Bungary)
a) John Bungaree (c.1859-1943) can be traced with reasonable accuracy through archival records. John Bungaree died at Tweed Heads, N.S.W on 6 August 1943 aged 84 years suggesting a birth year of circa 1859. On an 1894 Deebing Creek record his age was given as 45 years suggesting an earlier birth year of circa 1849. On this 1943 death certificate, Bungaree was listed as only having 2 children, the twin boys Norman (c.1883-1958) and Lindsay Sandy (c.1883-1959) and his wife was listed as Mary Sandy (c.1848-b.1940) whom he married at Southport circa 1882. Mary Ann Mitchell nee Sandy is also an apical ancestor on the Danggan Balun claim. John Sandy aka Bungaree/Bungary seems to have associations with the Tweed as well as the Beaudesert area.
b) Twins Norman and Lindsay Sandy were born in Southport in circa 1883. Norman Sandy appears to have been married to a woman named Amy who died near Nanango in September 1905. Norman then married Margaret Yarry/Yarrie (>1891-1949) in 1912 at Beaudesert and they had 11 children together. Norman Sandy died on 2 July 1958 at Beaudesert aged 75 years.
c) Lindsay Sandy married Lily Williams (c.1888-1968) in 1911 at Beaudesert. Lily was the daughter of Emily Logan and the granddaughter of apical ancestor /Bilin Bilin/Jackey Jackey. Lindsay and Lily Sandy had 7 children together. Lindsay Sandy died on 27 March 1959 at Coopers Plains in Brisbane and is buried in Beaudesert.
d) John Bungaree probably also had a daughter named Stella Terare nee Bungera/Bungaree (>1888-1959). Descendants of Stella Terare, said that they understood Stella to have originally been from Beaudesert from the "Sandy/Bungaree mob" and later moved to Kyogle and Murwillumbah area. Stella Bungera married Nossack Terare at Cudgen NSW on 20 April 1909. Her parents were given as Johnnie Bungera and Annie.
e) The account of Stella looking after John Bungary until his death at Fingal Head in 1943 is supported by strong circumstantial evidence. Electoral Rolls show Stella to be living close to Fingal Head between at least 1936 and 1943. The 1942 newspaper account of her being struck by a car gave her residence as Parry’s estate in Tweed Heads. This would suggest that Stella and John Bungary lived very close to each other up until the time of his death. This makes it very likely that Stella’s father was the same person as the father of Lindsay and Norman Sandy.
f) The Sandy family has continued strong connection to the Beaudesert area. This long, generational association of the Sandy family group with the claim area, especially Beaudesert, locates them as an important family in the region.
g) The modern day descendant families of John ‘Johnny’ Bungaree/Bungary include Sandy, Jack, Bonner, Boyd, Williams, McGrady, Currie, Lindren and Bray families. This includes Danggan Balun Applicant members Germaine Paulson and Louisa Bonner.
45 As noted above, the applicants’ original judicial review challenge was directed to the delegate’s analysis and findings with respect to those two disputed apical ancestors. For the first time, in their written reply which was filed shortly before the hearing, the applicants identified two additional apical ancestors as being the subject of challenge, namely Jack Slab/Slabb Snr (husband of Lizzie Waggil Slabb & father of Charlotte, Frank, John/Jack Jnr, Olive & Victor) and Billy Terribah/Didiba Andrews. It is apposite to note the following information relating to those two apical ancestors in Attachment F to the native title application (without alteration):
(3) Jack Slab/Slabb Snr (husband of Lizzie Waggil Slabb & father of Charlotte, Frank, John/Jack Jnr, Olive & Victor)
a) The Deebing Creek School Register lists Jack Slab as a full blood man from Southport and suggests he was born circa 1873. Jack Slab’s wife is also recorded as Lizzie Slab aka Waggil, along with their two children; Charlotte Slab, born circa 1900 and F. Slab, born circa 1902, both at Deebing Creek. Jack Slabb and Lizzie Slabb (nee Smith) raised 5 children together, Charlotte Browning (nee Slabb) (c. 1900-nd), Frank Slabb (c. 1902-nd), Jack Slabb Jnr. (1905-1930), Olive Slabb (1909-1923), and Victor Slabb (1912-nd).
b) From circa 1911, the Slabbs were associated with the Aboriginal reserve at Fingal Point near Tweed Heads N.S.W and Jack Slabb’s eldest four children appear in a Fingal Head School photograph in 1913. Many of Jack Slab/Slabb’s descendants continue to have a close association with Fingal N.S.W. and to parts of the Gold Coast section of the claim area.
c) Present day descendants of Jack Slab Jnr include the Slab/Slabb, Browning, Ferguson, Shield, Combo, Rotumah, Kirby, Randall, Stewart, Charles, Thompson, Harris, Robson, Phillips, Lesiputty and Daylight families.
…
(7) Billy Terribah/Didiba Andrews
a) King Billy Andrews aka Terribah (nd-c.1904) was referred to as the King of Murwillumbah. He was a long term resident of Murwillumbah but he was born in Nerang. His parents were claimed to be “Tweed natives”. Gresty (1947) mentions that King Billy Andrews was also known by the Aboriginal name Terribah and was a recipient of a brass breastplate inscribed Billy Andrews, King of Murwillumbah.
b) King Billy Tinderrah Andrews was said to have been “the last of the Tweed line” along with a set of senior men (“King Wilson (king of Kooran Creek); King Taboo Jackie (king of Karara opposite Chinderah), and King Sandy, of Kynnumboon”) who are all described as having country located within a few kilometres of the southern boundary of the Danggan Balun claim area:
c) Whether Billy Terribah/Didiba Andrews had descendants is yet to be confirmed.
46 With respect to the first of those two additional disputed apical ancestors, the delegate said at [89]:
…
- Jack Slab/Slabb Snr was from around the eastern region and was born around 1873. His children were born around the early 1990s near the northwestern region.
…
47 There is no specific reference in this part of the delegate’s reasons to information in Attachment F relating to Billy Terribah/Didiba Andrews. As noted immediately above, the delegate selected only some of the apical ancestors in highlighting the factual basis for her findings.
48 The delegate’s reasons for concluding that she was satisfied that there was a factual basis sufficient to support the assertion in s 190B(5)(a) are primarily set out in [91]-[94] of her reasons for decision (noting in particular how [92] and [93] focus squarely on the central issue of the delegate’s satisfaction that there is sufficient factual material to support the assertion of an association between the group and the area (footnotes omitted)):
[91] There is also, in my view, a factual basis that goes to showing the history of the association that members of the claim group have, and that their predecessors had, with the application area. The factual basis indicates that Aboriginal people were recorded to be present in the application area from as early as the 1770s and that the area was heavily populated by Aboriginal people at the time of first European contact. Effective sovereignty in the area occurred between the mid-1840s in the inland parts and as late as the 1860s to 1870s in some parts of the coastal sections. Many of the apical ancestors or their predecessors were living within the application area at this time. For example, Coolum was born around 1837 and was the head of a clan in the central region in the 1870s. His wife was also from that area, where their children were born and where his wife was buried. His descendants maintain a connection to the central region. One of his descendants describes being born there in the 1940s and maintaining a strong spiritual and physical association to the claim area by living there, visiting family and friends, camping, hunting, and fishing.
[92] For the purposes of s 190B(5)(a), I must also be satisfied that there is sufficient factual material to support the assertion of an association between the group and the whole area. The asserted facts indicate that Aboriginal people were observed in the 1770s near the southeastern region of the claim area. The apical ancestors, their children and grandchildren were either born, lived, married, had children, died, were buried or were otherwise connected to areas around the northern, northwestern, central, mid-western, mid-eastern, southwestern, southern or southeastern parts of the external boundary of the claim area. Some of their descendants continue to have strong connections to those areas where they live, camp, hunt, fish, and do other traditional activities. They also know of sacred places within the claim area and the five rivers that flow throughout the country that connect the landholding groups.
[93] From the above information, I consider that the factual basis is sufficient to support the assertion of an association, both physical and spiritual, ‘between the whole group and the area’. In my view, the factual basis material provides sufficient examples and facts of the necessary geographical particularity to support the assertion of an association between the whole group and the whole area.
[94] Given the information before me, I am satisfied that the factual basis provided is sufficient to support the assertion described by s 190B(5)(a).
Standing
49 It is necessary to first address the issue of the applicants’ standing to bring the ADJR Act challenge. It is now well established that the question of standing, when raised in the context of federal jurisdiction, is an integral part of the constitutional concept of “matter” (see, for example, Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; 194 CLR 247 at [37] per Gaudron, Gummow and Kirby JJ and Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited [2000] HCA 11; 200 CLR 591 at [16]-[17] per Gleeson CJ and McHugh J, at [45]-[50] per Gaudron J and at [122] per Gummow J).
50 Thus the issue of standing is a matter which goes to the question of the Court’s jurisdiction. The Court needs to be satisfied that the applicants here have standing in order for the Court to have jurisdiction to entertain their challenge under the ADJR Act. This is reflected in Gummow J’s observations in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50, where the Court was asked to determine whether the applicant was a “person aggrieved” under the ADJR Act with respect to a decision to permit certain medical institutions to import and trial a drug. While Gummow J was in dissent, holding that no “decision” had been made and therefore the issue of standing under the ADJR Act did not arise, his Honour’s observations concerning the Parliament’s use of the word “aggrieved” have been cited approvingly, including by the High Court in Argos Pty Ltd v Corbell [2014] HCA 50; 254 CLR 394. At 84, Gummow J observed (emphasis added):
Section 5(1) of the ADJR Act operates in an ambulatory fashion over a wide area of federal law. Questions as to whether a particular applicant is “aggrieved” within the meaning of that provision arise in the context provided by the “enactment” under which the administrative “decision” in issue was made. The nature of the grievance and the justiciability of the complaint by the applicant concerning it will appear first by identifying the decision giving rise to the grievance and then by considering the enactment under which it was made.
The use by the parliament of the term “aggrieved” is significant in several respects. First, it suggests that the question of standing is not answered simply by identification of a person who is an effective and faithful representative of the public interest in due administration of the law concerned. Secondly, it directs attention to what in federal administrative law are the constitutional limitations upon any statutory system which expands the concept of standing in a court exercising federal jurisdiction beyond the ambit of a “matter” (in Australia) or “case or controversy” (in the United States): see Australian Conservation Foundation Inc v Commonwealth (the ACF case) (1980) 146 CLR 493 at 530, 539–40, 550–1, 554–5 ; 28 ALR 257 ; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 75 ; 36 ALR 425. In the ACF case (at CLR 554), Murphy J said that the concept of standing is closely tied to justiciability and to notions of judicial power. See as to the similar position in the United States, Schwartz, Administrative Law (3rd ed, 1991), pars 8.12, 8.13.
The court has jurisdiction conferred when there is a “person aggrieved” by a “decision” which is “of an administrative character” and made “under an enactment”. These matters are indicated by the terms of s 5(1), when read with the definitions in s 3. A “decision” includes a refusal to revoke an approval, consent or permission. The “enactment” must, to put it broadly, be a statute or instrument made thereunder. The reference in s 5(1) to a person who is “aggrieved” includes (but, of course, is not limited to) a reference to one whose “interests are adversely affected” by the decision: s 3(4)(a).
51 In Mirvac Homes (NSW) Pty Ltd v Airservices Australia (No 1) [2004] FCA 109, Branson J considered Truth About Motorways in the context of a notice of objection to competency made in judicial review proceedings instigated under both the ADJR Act and s 39B of the Judiciary Act 1903 (Cth). The notice of objection to competency focussed on the applicant’s standing. Justice Branson highlighted at [23] and [26] how the concept of “person aggrieved” related to the requirement that there be a matter so as to attract federal jurisdiction (emphasis added):
[23] Truth About Motorways makes clear, in my view, that the critical issue so far as the Court’s jurisdiction to hear and determine the Application is concerned is whether it seeks the determination of a ‘matter’ in the constitutional sense.
…
[26] Ground 3, which concentrates on the question of standing, is the ground which most nearly raises the critical issue of whether the Application seeks the determination of a ‘matter’ in the relevant sense. However, no doubt because of the way in which ground 3 is worded, the parties did not address submissions to the Court on that issue. If the applicants are ‘persons aggrieved’ by an administrative decision made by the respondent ‘under an enactment’ within the meaning of the ADJR Act, the proceedings will necessarily involve a ‘matter’ in the relevant sense. However, even if the jurisdiction of the Court under the ADJR Act has not been properly invoked, the Court will have jurisdiction to hear and determine the Application if the applicants have properly invoked a jurisdiction vested in the Court by s 39B(1A) of the Judiciary Act.
Are the applicants “persons aggrieved” by the delegate’s decision?
52 Under s 5 of the ADJR Act, a person who is “aggrieved by a decision to which this Act applies” may apply for an order of review in respect of judicial review grounds which are set out in s 5. Section 3(4) contains the following definition of the expression “person aggrieved by a decision”:
3 Interpretation
…
(4) In this Act:
(a) a reference to a person aggrieved by a decision includes a reference:
(i) to a person whose interests are adversely affected by the decision; or
(ii) in the case of a decision by way of the making of a report or recommendation—to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and
(b) a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.
…
53 It is well settled that the expression “a person who is aggrieved” is not to be given a narrow construction (see Western Australia v Native Title Registrar [1999] FCA 1591; 95 FCR 93 at [12] per Carr J and similar observations by the High Court in Argos at [42] per French CJ and Keane J with reference to the comparable provision on standing in the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ACT ADJR Act)). That is not to say, however, that any person who is minded to challenge an administrative decision is a person who is aggrieved by that decision. For example, in Australian Foreman Stevedores Association v Crone [1989] FCA 14; 20 FCR 377, Pincus J said at 382:
A decision favourable to one citizen may affect many others: some directly, and some more remotely. There is a point, which must be fixed as a matter of judgment in each case, beyond which the court must hold that the interests of those affected are too indirectly affected to be recognised. A case such as this, where a decision has been made which is said to be favourable to one of a group of business competitors, is an example; the decision may, by assisting one, relatively disadvantage the others and also affect the prospects of those who are in one way or another dependent on the others – as employees, shareholders, or even personal dependants.
54 To similar effect, in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; 13 FCR 124 at 133, Gummow J said that “a danger and peril to the interests of the applicant that is clear and imminent rather than remote, indirect or fanciful” must flow from the impugned decision for the applicant to be an aggrieved person, a passage referred to approvingly by French CJ and Keane J in Argos at [22]. Their Honours also referred approvingly in Argos at [38] to Brennan J’s observations in Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157, where his Honour referred to how a decision which affects the interests of one person directly may affect the interests of others indirectly and that, across the “pool of sundry interest, the ripples of affection may widely extend”. Justice Brennan described the problem which is inherent in the notion of “person aggrieved” as “the determination of the point beyond which the affection of interests by a decision should be regarded as too remote”.
55 Thus, in Argos, French CJ and Keane J acknowledged that “judgments of fact and degree” were required in determining whether or not a person is an “aggrieved person” for the purposes of the statutory standing provision in the ACT ADJR Act. Although their Honours accepted that those judgments may involve consideration of “directness or remoteness or proximity”, they emphasised that those expressions were “conclusionary judgments” and did not themselves provide tools of analysis (at [39]).
56 A majority of the Court in Argos rejected the proposition that standing is to be determined by reference to the nature and subject matter of the litigation, including the objects of the statute conferring power to make the impugned decision (see at [41] per French CJ and Keane J and at [85] per Gageler J). That is not to say, however, that the enactment under which an impugned decision is made is irrelevant to the issue of standing to bring a challenge under the ADJR Act. As French CJ and Keane J stated in Argos at [42]-[43] (footnotes omitted):
42 The test for standing to apply for review of a decision under the AD(JR) Act is expressed in that Act. The applicant must be “a person aggrieved”, a criterion which may be satisfied if the applicant is a person whose interests are adversely affected by the decision. The text of the criterion, on its face, does not allow for its expansion or contraction according to the scope and purpose of the enactment under which the decision is made. It is not to be read or applied with reference to normative considerations based on the policy of the enactment. To do so by reference to individual enactments would undermine an important purpose of the AD(JR) Act, which was to simplify judicial review processes.
43 Consistently with that proposition it will be necessary to have regard to the enactment under which the impugned decision is made and the legal effect and operation of the decision in order to determine how the interests of the applicant for review may be adversely affected or the applicant otherwise (sic) a person aggrieved.
57 In the present proceeding, the applicants relied upon the following three grounds in contending that they are aggrieved persons in relation to the delegate’s decision:
(a) acceptance of the further amended document application for registration “effectively frustrated the possibility of the Tweed Claim being registered”, assuming that that claim was re-filed;
(b) the applicants, who had opposed the further amended claimant application in QUD331/2017, were adversely “impacted in defending or opposing the determination” of the further amended claimant application by the inclusion of the four disputed apicals in the claimed group in that proceeding; and
(c) the registration of the further amended claimant application in QUD331/2017 gave those members rights under the NT Act with respect to future acts which the applicants say ought properly belong to them, at least in relation to the overlap area.
58 The second to eighth respondents did not put in issue the applicants’ standing. For the reasons already given, however, the Court must be satisfied that it has jurisdiction, which necessarily focusses attention on the applicants’ standing. The question whether or not the applicants have standing is not straightforward. However, I find that they do have standing on the following two bases.
59 First, the delegate’s decision to accept the further amended claimant application in QUD331/2017 meant that the application in NSD876/2020 (the existence of which was known to the delegate as at the date of her decision) could not be accepted for future registration because of the operation of s 190C(3). That is because when the Registrar came to consider whether or not to accept for registration the application in NSD876/2020, the effect of the delegate’s earlier acceptance of the further amended claimant application in QUD331/2017 for registration (including the four disputed apical ancestors) meant that the other application could not be accepted for registration, because the Registrar could not be satisfied that there were no previous overlapping claim groups for the purposes of s 190C(3). It necessarily follows that if the application in NSD876/2020 could not be registered, the applicants would not enjoy the statutory benefits of registration, including the right to negotiate in respect of future acts affecting the overlap area.
60 Secondly, and partly related to the first matter, I accept that the applicants are “persons aggrieved” by the delegate’s decision because of their previous active participation as respondents in QUD331/2017, with particular reference to their position regarding the four disputed apical ancestors. The applicants’ interests are greater than any ordinary member of the public.
61 For completeness, however, I should explain why I reject the applicants’ submission that Hazelbane supports their claim to have standing. In that case, there were also competing native title claimants. Justice Mansfield described the first claimants as the “Town of Batchelor No 1 applicants” and the second claimant as the “Town of Batchelor No 2 native title claim group”. The Registrar’s decision to register the application by Town of Batchelor No 2 native title claim group was challenged by the Town of Batchelor No 1 applicants. Significantly, and unlike the position here, those judicial review applicants had been successful in having their application for native title determination accepted for registration under s 190A of the NT Act. Accordingly, because their claim was registered, those judicial review applicants enjoyed the rights which flowed from registration, including the rights to be notified, and to object and to negotiate, in respect of future acts.
62 In those circumstances, it is understandable that Mansfield J held at [13]-[22] that the Town of Batchelor No 1 applicants were aggrieved persons in respect of the Registrar’s decision to also register the competing claim because the effect of that latter decision meant that there were then two groups of people with the same negotiating rights in respect of the same claim area. The position was similar in Stock v Native Title Registrar [2013] FCA 1290; 138 ALD 547 where Barker J held that rival claimants who also had had their claim registered had standing to challenge a decision registering another claim (at [16]-[25]).
63 Both those circumstances are far removed from the facts here. Hazelbane is distinguishable because, at the time of the delegate’s decision in this case, the application in NSD876/2020 had not been accepted for registration. Indeed, as noted above, it was subsequently rejected by a different delegate.
64 In Hazelbane, Mansfield J referred to the decision in Western Australia v Native Title Registrar, where Carr J held that the State was a person aggrieved by the Registrar’s decision to register an application for native title determination because such registration adversely affected and restricted the capacity of the State, as owner of the land, to deal with its proprietary interests. Upon registration of the application, the State was required to submit itself to the statutory requirements of negotiation and arbitration.
65 The circumstances in Western Australia v Native Title Registrar are also distinguishable from those here. Although the applicant in NSD876/2020 claims to have native title rights and interests in the overlapping area, that claim remains to be determined. The position is far removed from that in the proceeding before Carr J, where the proprietary interests of the State, as the accepted owner of land affected by the registration of the native title claim there, had its interests adversely affected by the registration because the State was then obliged to submit itself to the statutory requirements of negotiation and arbitration arising from the fact of registration.
66 Although I reject this aspect of the applicants’ submissions, I nevertheless find that they have standing to bring the proceeding.
Extension of time
67 The second to eighth respondents did not oppose time being extended for the applicants to rely upon their originating application. If necessary, I would grant that extension. The applicants filed the originating application on 14 October 2020, which is more than 28 days from the date of the delegate’s decision dated 28 August 2020. The applicants were not furnished with the reasons for decision (see s 11(3) of the ADJR Act) and I accept that the applicants only became aware of the delegate’s decision on or about 16 September 2020. An acceptable explanation has been provided for the delay.
68 I will now consider the various heads of judicial review raised by the applicants.
The ADJR Act heads of review
69 It is convenient to address each of the three heads of review in turn.
(a) Denial of procedural fairness
70 The applicants’ outline of written submissions was notably silent on the threshold question whether the delegate owed them procedural fairness. The submissions assumed that there was such a duty and the focus was on why the applicants claimed that there was procedural unfairness in the process conducted by the delegate. In approaching the case this way the applicants may have considered that the issues of standing and procedural fairness are coterminous. If that is so I respectfully disagree.
71 In Griffith University v Tang [2005] HCA 7; 221 CLR 99 at [45], the plurality (Gummow, Callinan and Heydon JJ) referred approvingly to the following observations of Lehane J on the relationship between standing and procedural fairness in Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 at 568 (footnotes omitted, emphasis added):
The argument, as I think is not uncommon, proceeded on the basis that there was a relationship between the questions of standing and, in the context of procedural fairness, of a right to be heard. Where, of course, a decision affects an individual interest it is highly likely that a conclusion on one matter will dictate a conclusion on the other: it is of course inconceivable that someone entitled to a hearing in relation to a proposed deportation order would not, if denied a hearing, be entitled to challenge the order once made. It is, however, different I think in what may be described loosely as a public interest case, such as the present. In such a case it would not be at all unusual, I think, to find that a person with standing to challenge a decision once made had, nevertheless, no right to be heard in relation to its making: as will be apparent, I think this is such a case. Ogle v Strickland (1987) 13 FCR 306 was, I should think, another; and North Coast Environment Council [Inc v Minister for Resources] may well have been a third. In reality, they are in my view separate questions, in relation to each of which there is a distinct set of principles, emerging from strikingly separate lines of authority.
72 In determining whether or not the delegate owed procedural fairness obligations to the applicants in the particular circumstances of this case, it is important to pay close regard to some relevant parts of the statutory regime. In Hazelbane, Mansfield J said at [26] that s 66 of the NT Act:
… makes it plain that in the normal course a competing registered native title claimant is not entitled to be given the opportunity to be heard when the Registrar is considering whether to accept for registration a native title determination application over the same area of land. The mere fact of having standing to challenge the Registrar’s decision does not mean that the Town of Batchelor No 1 applicants were entitled to the opportunity to make submissions to the Registrar and to present material to him when he was considering such a decision.
73 Despite those general remarks (with which I respectfully agree and regard as consistent with what Carr J said on this subject in Western Australia v Native Title Registrar at [29]-[37]), Mansfield J went on to hold that procedural fairness obligations were in fact owed because of the particular circumstances or features of that case. In particular, his Honour found that the Registrar had made certain representations regarding process which gave rise to a “legitimate expectation” on the part of the Town of Batchelor No 1 applicants that they would be notified when the Registrar was considering whether to accept for registration the Town Batchelor No 2 application. They were also told when they could make submissions and provide information relating to the Registrar’s consideration.
74 The reasoning in Hazelbane was based on the concept of “legitimate expectation”. While use of that nomenclature has been criticised (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [111] and [121] per Hayne J and Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [28]-[30] per Kiefel, Bell and Keane JJ), it remains uncontroversial that the manner in which any particular administrative process is conducted, which may include representations made by the decision-maker, can give rise to procedural fairness requirements in the particular circumstances of the case (see Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairs [2004] HCA 62; 221 CLR 1 and WZARH at [35] per Kiefel, Bell and Keane JJ). As stated by the Full Court of this Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; (2015) 234 FCR 1 at [92], the Court must adjust “the underlying analytical jurisprudence away from a doctrinal reliance upon legitimate expectation towards an examination of the fairness of the process”.
75 In the present proceeding, it is significant to note that the applicants do not suggest that the delegate made any similar representations to those in Hazelbane concerning the procedure which the delegate would adopt in considering whether or not to register the further amended claimant application in QUD331/2017, which, if departed from, could give rise to procedural unfairness. The applicants’ reliance on the concept of legitimate expectation related not to the manner in which the delegate said the administrative process would be conducted, but rather to the fact that the applicants were respondents in QUD331/2017 and had filed an overlapping application for native title determination prior to the delegate’s decision.
76 The applicants in the present proceeding do not claim that there was non-compliance with any statutory notice requirements.
77 In their outline of written submissions, the applicants claimed at [38] that they were “not informed that a registration decision was made” nor invited to provide input into the delegate’s deliberations. They claimed that this was in breach of procedural fairness requirements. The applicants’ instructing solicitor deposed that the applicants “were not informed that a registration decision had taken place nor that a decision had been made” and that the applicants only became aware of the delegate’s decision on or about 16 September 2020. He added that the applicants were not invited to make written submissions or to provide further evidentiary material to the Registrar in opposition to the further amended claimant application. Significantly, the instructing solicitor’s affidavit (which is the only affidavit filed by the applicant which deals with this issue), does not unequivocally state that the applicants were unaware of the fact that the Registrar was giving consideration to the issue of registration of the further amended claimant application.
78 There is good reason to doubt the applicants’ submission at [38] of their outline of submissions. It relates to the fact that the applicants actively participated (as respondents in QUD331/2017) in the interlocutory proceedings before Reeves J. They were legally represented by the same solicitors who act for them in the present proceeding. On 7 July 2020, Reeves J, after considering the applicants’ opposition to the interlocutory orders sought by the applicant in QUD331/2017, made orders and gave reasons which were unfavourable to the applicants in the present proceeding as summarised at [11]-[15] above. The applicants’ instructing solicitor also deposed that a sealed copy of the further amended claimant application was served on him by way of email. The date of service is not identified but it may reasonably be inferred that it was on or around 14 July 2020, when the further amended claimant application was filed in the Court.
79 As Ms Goodchild (who appeared for the applicants) frankly acknowledged, the applicants’ legal representatives must have known (or at least ought reasonably to have known) that under the relevant statutory regime, after the Court granted leave for the applicant in QUD331/2017 to file the further amended claimant application, a copy would be given to the Registrar so that consideration could commence on the question whether or not it should be registered under s 190A. The applicants may not have known the likely timeframe for that process, but they must or ought to have known that the registration process would be enlivened shortly after 7 July 2020. Yet they did nothing, apart from filing the overlapping application for native title determination on 4 August 2020. They had an opportunity to make submissions and/or provide information to the Registrar before she made her decision on 28 August 2020, but inexplicably they did not avail themselves of that opportunity. Instead, it appears that they preferred to await the outcome of the registration process and then complain in this Court of procedural unfairness.
80 I referred above at [65] to Mansfield J’s observations on the limited scope of procedural fairness in Hazelbane. Those observations (with which I respectfully agree) were made in the context of competing registered native title claimants. They have an even stronger resonance where the rival native title claimant is not registered, as is the case here.
81 I reject the applicants’ contention that the delegate owed them procedural fairness requirements because the registration decision adversely affected their rights or interests. At the time of the delegate’s decision, the applicants’ rights and interests were confined to those of a party who had unsuccessfully opposed Reeves J granting leave to the applicant in QUD331/2017 to amend their claimant application and the relatively limited rights attaching to an unregistered applicant for a native title determination. As noted above, the applicants did not seek leave to challenge Reeves J’s decision. Moreover, their rights and interests in respect of their own native title application was to have that application considered for registration in accordance with the relevant requirements of the NT Act and ultimately to have that application determined by the Court. Neither of those rights or interests gave rise to an obligation of procedural fairness on the part of the delegate in considering whether or not to register a separate application for native title determination which was filed in the Court prior to that of the applicants in the present proceeding.
82 Insofar as the applicants rely on the now discredited concept of “legitimate expectation”, it is notable that they do not claim that some representation or other conduct by the Registrar (or delegate) gave rise to procedural fairness requirements. The circumstances in Hazelbane are clearly distinguishable. Moreover, there is no other relevant conduct by the delegate comparable to that in Hazelbane.
83 For these reasons, I find that the applicants had no legal entitlement under procedural fairness principles to be heard by the delegate. As was the case in State of Queensland v Hutchison [2001] FCA 416; 108 FCR 575 at [27] per Kiefel J, there is no need to determine in this proceeding whether or not procedural fairness requirements are excluded by the statutory scheme.
84 For completeness, I also add that even if I am wrong on the threshold question as to whether the applicants were owed procedural fairness obligations by the delegate, I would have found that there was no denial of procedural fairness because the applicants must or ought reasonably to have been aware of the fact that the further amended claimant application was being considered for registration and they did not avail themselves of the opportunity which they had to provide input to the delegate’s deliberations (see Kioa v West [1985] HCA 81; 159 CLR 550 at 629 per Brennan J). Furthermore, having regard to the relevant circumstances, I would not have been satisfied that the applicants suffered any practical injustice (see Lam at [37]-[38] per Gleeson CJ and WZARH at [57] per Gageler and Gordon JJ).
85 For these reasons, I reject the applicants’ claim of procedural unfairness.
(b) Improper exercise of power
86 The applicants’ outline of written submissions was largely directed to the complaint of procedural unfairness. Little, if anything, was said about the other heads of judicial review in that outline. Accordingly, I will focus upon the wording of the relevant parts of the originating application in respect of these alleged errors, as supplemented by the applicants’ oral submissions, together with their written reply.
87 There are two limbs to the applicants’ claim of improper exercise of power. The first is a claim that the delegate identified the wrong issue in addressing what were described as “the procedural requirements of s 190B(5)(a), (b) and (c)”. The second is a claim that the delegate failed to take into account a relevant consideration. I will address both limbs in turn.
(i) Identifying the wrong issue
88 As noted above, the applicants claim in their originating application that the delegate breached s 5(1)(e) of the ADJR Act “by identifying the wrong issue in addressing the procedural requirements of section 190B(5)(a), (b) and (c) and improperly exercising the power to accept the Amended Form 1 for registration”. Several problems with this claim should be noted at the outset. First, the relevant terms of s 190B are set out at [20] above. As is made plain in the heading to that section, it provides conditions about the merits of the claim. Conditions about procedural and other matters are not set out in s 190B, but in s 190C. Accordingly, it is difficult to understand the applicants’ reference to the “procedural requirements” of s 190B(5)(a), (b) and (c).
89 A second difficulty relates to the applicants’ claim that the power to accept the Amended Form 1 for registration was improperly exercised. The Registrar does not have a power, in the sense of a discretionary power, whether or not to register a claim. The Registrar has a duty to accept a claim for registration if the requirements of s 190A(6A) are satisfied and, equally, is obliged not to accept the claim for registration if neither ss 190A(6) nor (6A) applies (see s 190A(6B)).
90 A third point to note is that Ms Goodchild informed the Court during the course of oral address that the alleged errors concerning s 190B(5)(b) and (c) were no longer pressed. Accordingly, this aspect of the applicants’ judicial review complaint relates only to s 190B(5)(a).
91 There are more fundamental difficulties with this part of the applicants’ case. The burden of the claim appears to be that there was an insufficient factual basis provided by and in the further amended claimant application for the delegate to be satisfied for the purposes of s 190B(5)(a) that the native title claim group have, and the predecessors of those persons had, an association with the area. With reference to the four disputed apical ancestors, the applicants contended that the only relevant material in the application was that:
(a) Kitty Sanderson “is said to have” been traditionally associated with “areas south of the application area” and “likely had rights and interests extending into the claim area”;
(b) John (‘Johnny’) Bungaree had relations with women and children who lived in the claim area, without any assertion that he himself lived, worked or considered himself to be a Danggan Balun person;
(c) Jack Slab/Slabb Snr was from around the eastern region and was born around 1873 and that his children were born around the early 1890s near the northwest region; and
(d) as to Billy Terribah/Didiba Andrews, no factual basis was identified by the delegate in respect of this particular apical ancestor.
92 The applicants claim that there was insufficient evidence and no clear identification of a link between these four apical ancestors and the society in the Dannggan Balun claim area at sovereignty. They added with respect to some of the disputed apicals that merely being born in the claim area did not, without more, provide a sufficient factual basis for the assertion that the identified native title rights and interests belonged to the named apical ancestors. The applicants added that if the delegate had properly considered the material which they had filed in QUD331/2017 and/or sought submissions and further evidence then the delegate would not have been able to reach the stated satisfaction in respect of s 190B(5)(a). During the course of oral address, Ms Goodchild accepted that to make good this claim, it was necessary to establish that no reasonable person could, on the factual material before the delegate, have reached the conclusion that the requirements of s 190B(5)(a) were so satisfied.
93 For the following reasons, I do not accept that claim.
94 The applicants’ challenge to the delegate’s analysis and findings regarding s 190B(5) are predicated on a misunderstanding of the legal nature of the delegate’s task. I respectfully agree with the following observations of Mansfield J in Doepel at [16] and [17] regarding the delegate’s role as framed by ss 190B and 190C (emphasis added):
16 It is trite to observe that the nature of the Tribunal’s task is defined by those provisions. Its task is clearly not one of finding in all respects the real facts on the balance of probabilities, or on some other basis. Its role is not to supplant the role of the Court when adjudicating upon the application for determination of native title, or generally to undertake a preliminary hearing of the application. Section 190C, dealing with procedural and other matters, largely but not exclusively directs attention to the terms of the application itself. Section 190C(2) is confined to ensuring the application, and accompanying affidavits or other materials, contains what is required by ss 61 and 62. The matter raised by s 190C(4)(a) may also be met on the face of the application, perhaps supported by the Registrar’s information about the relevant representative bodies. If s 190C(4)(b) applies, s 190C(5) imposes requirements which must appear from the application itself. Section 190C(3) on the other hand may involve the Registrar addressing information otherwise available: see e.g. s 190A(3)(b). Section 190B also has requirements which do not appear to go beyond consideration of the terms of the application: subs 190B(2), (3) and (4). Section 190B(5), (6) and (7) however clearly calls for consideration of material which may go beyond the terms of the application, and for that purpose the information sources specified in s 190A(3) may be relevant. Even so, it is noteworthy that s 190B(6) requires the Registrar to consider whether “prima facie” some at least of the native title rights and interests claimed in the application can be established. By clear inference, the claim may be accepted for registration even if only some of the native title rights and interests claimed get over the prima facie proof hurdle. Indeed it may be that the Registrar, upon being satisfied that some of the native title rights and interests claimed can, prima facie, be established, might not apply that evidentiary test to each of the claimed native title rights and interests.
17 Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the “factual basis on which it is asserted” that the claimed native title rights and interests exist “is sufficient to support the assertion”. That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts.
95 The applicants’ claims are flawed because they assume too high a standard of consideration and satisfaction in relation to the delegate’s consideration of an application for registration under Pt 7. The applicants’ standard is more appropriate to a determination of native title by the Court.
96 As Barker J pointed out in Stock at [62], there is a direct relationship between the requirements in ss 62(2)(e) and 190B(5). The former provision, which relates to the information and other material that must be provided in relation to a claimant application, requires only “a general description” of the factual basis upon which the assertions are made. I respectfully agree with Barker J’s observation at [63] that this must be “borne in mind when the question is addressed whether there was material before the Registrar” (or a delegate) upon which the Registrar or delegate could have been satisfied that the factual basis asserted in the application was sufficient. It is important not to lose sight of the fundamental fact that the provisions in Pt 7 dealing with registration are not concerned with the proof that native title exists. That is an issue which arises when the Court comes to determine a claimant application (see also Gudjala Full Court at [83] and [92]).
97 There is a second fundamental legal difficulty with this aspect of the applicants’ case. It relates to the fact that ground 2 of the judicial review application focusses upon an alleged insufficiency in the material in Attachment F for the delegate to have been satisfied that there was a sufficient factual basis supporting the assertion that the native title claim group had an association with the claim area. Instead of focussing upon the association between the native title claim group as a whole and the claim area as a whole, the applicants’ complaint focussed on the material relating to only four of the claimed apical ancestors. In essence, ground 2 of the judicial review application was itself predicated on an erroneous legal basis (see [41] above).
98 Applying these principles to the relevant parts of the delegate’s analysis and findings, as summarised above, I discern no reviewable error. There is no substance in the applicants’ complaints that the factual claims set out in the Attachments to the further amended claimant application were themselves tentative or qualified. It is important to bear in mind that the registration test turns on the Registrar’s satisfaction that the “factual basis on which it is asserted” can support the claimed conclusions. The decision-maker is not required by s 190B(5) to determine whether the asserted facts will or may be proved at a hearing, nor to assess the strength of the evidence which the native title applicant may ultimately adduce in the Court in seeking a determination of native title rights and interests.
99 The relevant information provided in Attachment F to the further amended claimant application provided a sufficient basis to support the delegate’s conclusion that the requirements of s 190B(5)(a) were satisfied. The delegate was not obliged to refer specifically to every part of that material. As I have emphasised (see [48] above), the delegate correctly focussed attention on whether that material provided a sufficient basis for the assertion that the native title claim group as a whole have (and the predecessors of those persons had) an association with the claim area. It is indisputable that the delegate was familiar with the material, as is evident from her detailed, albeit non-exhaustive, summary of it. The applicants’ criticisms of some of the delegate’s findings concerning four individual apical ancestors fails to appreciate the relevant legal question was the association between the native title claim group as a whole and the claim area, and not the association of individual members of the claim group. The fact that the delegate made no express reference, for example, to the information relating to Billy Terribah/Didiba Andrews, is not fatal. Nor is there substance in the applicants’ complaint that it is insufficient for the purposes of s 190B(5) for an apical ancestor merely to have been born in the claim area. I disagree. The delegate’s task is to determine whether there is a sufficient factual basis. Birth in the claim area is well capable of satisfying the relevant test. The standard used in s 190B(5)(a) is less stringent compared with that which applies for the purposes of s 61 of the NT Act.
100 There is another flaw in this part of the applicants’ challenge. While s 190A(3) identifies various sources of information to which the Registrar must have regard in considering a claim for registration (set out at [18] above), there is no reason to doubt French J’s statement in Martin v Native Title Registrar [2001] FCA 16 at [23] that the applicant seeking registration is ultimately responsible for providing a sufficient factual basis for relevant assertions. Although information may be obtained by the Registrar as a result of searches by him or her of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory, it remains the case, as French J pointed out, that it is “not a requirement that the Registrar or his delegate undertake a search for such material”. This partly overlaps with my findings above regarding procedural fairness. In the particular circumstances here, the delegate was not obliged to approach the applicants with a view to obtaining any information or material from them.
101 Applying the relevant legal principles, I consider that the delegate’s analysis and findings as to why she was satisfied that there was a sufficient factual basis to support the assertion referred to in s 190B(5)(a) disclose no reviewable error of the kind alleged by the applicants.
(ii) Failure to take into account a relevant consideration
102 The applicants’ complaint that the delegate failed to take into account a relevant consideration in exercising the power under ss 190A and 190B(5) essentially relied upon the same matters and contentions as advanced by them in support of the first limb of their complaint of improper exercise of power. It appears that the “relevant consideration” is the material which the delegate would have received if she had invited the applicants to provide input into her consideration of the issue of registration.
103 One of the difficulties with this claim lies in the well-established fact that, in the context of judicial review under the ADJR Act, “relevant consideration” means a mandatory relevant consideration (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 per Mason J). I fail to see how the material which the applicants say they would have provided to the delegate, if they had been invited to do so, could be described as a “relevant mandatory consideration” when:
(a) there was no legal obligation on the delegate to extend any such explicit invitation to the applicants to provide any such material; and
(b) having regard to the terms of s 190A(3), even if the applicants had provided material or information that would not amount to a mandatory relevant consideration for the reasons explained at [19] above.
104 As discussed above, there was no legal obligation on the delegate to provide an explicit invitation to the applicants to provide any input to her registration deliberations, it is difficult to understand how any material which might hypothetically have been provided by the applicants could constitute a mandatory relevant consideration.
105 For these reasons, I reject this aspect of the applicants’ claim.
106 In any event, issues of discretion to refuse relief would arise given that the applicants took no steps themselves to provide any input to the delegate’s deliberations notwithstanding the fact that they must (or ought reasonably to have) known that the registration deliberations were on foot.
(c) Error of law
107 As noted above, this claim relates to an alleged breach of s 5(1)(f) of the ADJR Act and relates to the alleged failure of the delegate to comply with the requirements of ss 190A(3) and 190B(5). It appears to be an alternative way of characterising the errors particularised in the applicants’ claim that there was an improper exercise of power.
108 For similar reasons to those given above for rejecting that earlier claim, if this claim was pressed (and it seems that it was not) it would have been rejected.
Conclusion
109 For these reasons, the originating application will be dismissed. The parties both acknowledged that there is no reason why costs should not follow the event.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Griffiths. |
Associate:
QUD 318 of 2020 | |
BELINDA FLORENCE BARRETT | |
Third Applicant: | PAUL JOHN BUXTON |
Fourth Applicant: | PETER WILLIAM BUXTON |
Fifth Applicant: | REBEKAH JOAN CLARKE |
Sixth Applicant: | EDWARD ARTHUR FORD |
Seventh Applicant: | JACQUELINE ANNE MCDONALD |
Eighth Applicant: | JAMIE GLYNN MCDONALD |
Ninth Applicant: | JASON MICHAEL MCDONALD |
Tenth Applicant: | MEAGAN LINDA WILLIAMS |
Eleventh Applicant: | SANDRA LORREL BUNGAREE KING |
GORDON 'TED' WILLIAMS | |
Third Respondent: | ROSE PAGE |
Fourth Respondent: | LOUISA BONNER |
Fifth Respondent: | SHAUN DAVIES |
Sixth Respondent: | ISRAEL BUNDJURI |
Seventh Respondent: | GERMAINE PAULSON |
Eighth Respondent: | ANTHONY DILLON |
