Federal Court of Australia

Keating v Native Title Registrar [2023] FCA 137

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application filed 21 April 2022 be dismissed.

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

REASONS FOR JUDGMENT

COLLIER J:

introduction

1    On 21 April 2022 the applicant filed an application for review of a decision of a Member of the Native Title Tribunal to refuse registration of the applicant’s native title determination application made on behalf of the Wallara People, clan of the Kolo-Muluridji (substantive application). The substantive application was filed pursuant to s 190F of the Native Title Act 1993 (Cth) and rule 34.109 of the Federal Court Rules 2011 (Cth).

2    It is common ground that the substantive application was filed out of time. On 4 August 2022 the applicant filed an interlocutory application under r 1.39 of the Federal Court Rules seeking an extension of time in which to file the substantive application.

3    The applications came before me for hearing together.

4    At the hearing, the State took no issue with the reason for the applicant’s delay in filing the substantive application, and conceded that there was no prejudice to be suffered by the State in respect of the late filing. In the circumstances, noting that the applicant was a litigant in person and had provided evidence explaining the delay, I was of the view that it was in the overall interests of justice to grant the applicant an extension of time: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]. The parties proceeded to make submissions on the substantive application.

5    Given that the applicant has been granted an extension of time, the balance of the relief sought by the applicant was as follows:

…

2.    On the grounds set out in the accompanying affidavit, have the application determined by the court under s. 35A (7) (b) Federal Court of Australia Act 1976.

3.    Such further orders as the Court considers appropriate.

background

6    On 7 July 2021 the applicant filed a Native Title Determination Application on behalf of the Wallara People, clan of the Koko-Muluridji (Wallara Claim).

7    The claim area identified in the Wallara Claim comprises 995 square kilometres of land and waters in Mareeba Shire Council, Northern Queensland. Notably, the claim area overlaps with three other native title determination applications, namely:

    Two native title claims on the Register: QUD398/2015 Djabugay-Bulway-Yirrgay-Nyakali-Guluy People and QUD692/2016 Cairns Regional Claim Group, and

    One non-claimant application: QUD413/2015 Arcella Family Investments Pty Ltd.

8    On 25 August 2021 a delegate of the Native Title Registrar refused to accept the Wallara Claim for registration. On 6 October 2021 the applicant applied for reconsideration of that decision. Accordingly, a Member of the Native Title Tribunal (the Member) heard the application de novo. On 14 December 2021 the Member found that the Wallara Claim did not satisfy all of the conditions set out in ss 190B-190C of the Native Title Act and refused registration (Registration Decision).

9    On 21 April 2022 the applicant applied for review in this Court.

REGISTRATION decision

10    Given that there have been two separate decisions concerning the Wallara Claim, it is convenient to refer to the decision-maker in respect of the present application as the Member.

11    Before the Member the applicant sought reconsideration of the Wallara Claim on the basis that the claim group:

    Asserted native title rights and interests to the claim area;

    Had a continuous connection to the claim area; and

    Had no connection to the claims on the Register.

12    The Member referred to the reconsideration materials and noted that they included a statement asserting a complex history of family conflict between various individuals and groups. The Member also noted that there were extensive non-contested findings of the first delegate, and that conditions of the registration test had been met referable to ss 190B (3), 190B (4), 190B (8), 190B (9), 190C (2) and 190C (5) of the Native Title Act.

13    In relation to other conditions forming part of the registration test, the Member found, in summary, as follows.

14    Section 190B (2) of the Native Title Act provides that the Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2) (a) and (b) of the Native Title Act 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. The Member noted that the Native Title Tribunal conducted a geospatial assessment of the claim area, which assessment was provided on 20 October 2021. The outcome of that geospatial assessment was that the claim area as described in the Wallara Claim was not described with reasonable certainty for the purposes of s190B (2). The Member continued:

24.    On the basis of that relevant information (see also my comments at [50] and [60] below), and given there was nothing in the reconsideration materials or the additional information provided on 5 November 2021 to displace the geospatial assessment, I am not satisfied there is sufficient information to be clear what areas are excluded from the claim area.

15    Section 190B (5) of the Native Title Act provides that 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:

(a)    that the native title claim group have, and the predecessors of those persons had, an association with the area (s190B (5)(a)); 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 (s190B (5)(b)); and

(c)    that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs (s190B (5)(c)).

16    The Member noted that information and evidence relevant to those considerations includes material about the predecessors of the native title claim group, the society at sovereignty, and any link between that society and the claim group today.

17    In relation to s 190B (5)(a), there was some support that some members of the claim group, as described, had an association with parts of the geographical area described in the Wallara Claim. However, the Member found that there was insufficient material to support the claim group’s current or previous physical and/or spiritual association with all parts of the application area. The Member noted that materials provided by the applicant largely consisted of extracts of reports which appeared to be anthropological in nature, without reference to how that related specifically to the claim group for this particular matter.

18    The Member further found that the information provided was at too high a level of generality to enable a genuine assessment of the factual basis of the Wallara Claim. The Member observed that the traditional laws and customs of a native title claim group were not cohesively outlined — rather, the general rights and interests of members of a family, in respect of hinterland and scrub areas, were claimed. The Member further considered that the composition of the native title claim group as described in the claim was provisional and did not reflect the “native title claim group” that held the common or group rights in relation to the area claimed in the Wallara Claim. In respect of this issue the Member concluded:

30.    The Wallara People application affidavit refers to the applicant being ‘authorised to make this affidavit on the Wallara Clan's (Mareeba Tribe of the Koko-Muluridji) behalf’. Various people are named in the materials as being a part of the claim group (for example Rowena Sheppard, daughter of Willie Sheppard (granddaughter Mick Sheppard); descendants of Mick Sheppard - Maureen Green, Rayleen Green, Clive Green and Allan Green; and the Fagan family). However, it is not clear why other members of the Muluridji people have been excluded (for example, Dolly Hughes and Annie Green). The delegate made detailed comments in her decision (at [66]-[78]) regarding the composition of the claim group, and | am of the same view as the delegate that the composition of the claim group indicates that the group as described in Schedule A is not the actual or the whole of the native title claim group. | conclude that potentially not all of the descendants of the ancestors named are included in the native title claim group, and that the adjacent native title claims (Djabugay-Bulway-Yirrgay-Nyakali-Guluy People and the Cairns Regional Claim Group) indicates a wider group.

19    In relation to s190B (5)(b) the Member observed that the applicant’s references to pre-sovereignty society having laws and customs was broadly cast, and not linked clearly to the rights and interests claimed. The Member noted that while there were references in the materials to the existence of traditional laws and customs, what those traditional laws and customs were and how they are acknowledged and observed by the Wallara Claim group was not sufficiently explained.

20    In relation to s190 (5)(c) the Member noted that the relevant task was to form a view as to the factual basis for the existence of a society at sovereignty observing identifiable laws and customs. The Member found however that no laws or customs were identified with any clarity, nor was there any clear outline of the existence of a society as at sovereignty. The Member concluded that there was a lack of material which could support a finding that the claim area of some 995 square kilometres was linked to traditional laws and customs of the claim group.

21    Section 190B (6) provides that the Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. The Member noted that the Wallara Claim application outlined a number of native title rights and interests as claimed, and accepted that each were capable of being a native title right and interest. However the Member concluded that because the traditional laws and customs asserted in the Wallara Claim were not sufficiently explained, the Member could not be satisfied some of the native title rights and interests claimed could be established with respect to the Wallara Claim.

22    Section 190B (7) of the Native Title Act provides that the Registrar must be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application, or previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done by the Crown or any holder of a lease. The Member observed that if there was not a sufficient factual basis for the claimed native title, it followed that traditional physical connection also could not be established. In circumstances where the Member could not be satisfied that the native title claim group continued to hold native title rights and interests in accordance with traditional laws and customs, s 190B (7) could not be supported.

23    Section 190C (3) of the Native Title Act provides that the Registrar must be satisfied that no person included in the native title claim group 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 (s 190C (3)(a)); 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 (s 190C (3)(b)); and

(c)    the entry was made, or not removed, as a result of consideration of the previous application under section 190A (s 190C (3)(c)).

24    The Member noted that the focus of the inquiry mandated by s 190C(3) was to identify if there were any common claim group members between the Wallara Claim and any previous, but still registered, application which overlapped the same land and waters. The Member noted the two native title claims on the Register. The Member was not satisfied that there were no common claim group members because:

42.    ….‘Winmai, mother of Mick Shepherd’ is described as an apical ancestor for the Djabugay-Bulway-Yirrgay-Nyakali-Guluy People claim group, and is also an apical ancestor for the Wallara People claim group. As it stands, according to Schedule A of the Wallara People application, Winmai is Mick Sheppard’s mother. I take Mick Shepherd and Mick Sheppard to be the same person, as noted at [9] above. There is nothing in the reconsideration materials which explains the duplication of Winmai, such that the issue of a common ancestor between the two native title claim groups would be resolved.

25    The Member noted that although the applicant was prepared to remove Mick Sheppard from the Wallara Claim, as the Wallara Claim was framed Mick Sheppard was an ancestor upon which the description of the native title claim group was based. The Member concluded that, as the Wallara Claim was constructed with claimants in common with overlapping previously registered claims, this condition could not be met, and the Wallara Claim would not meet this requirement for registration.

26    Section 190C (4) of the Native Title Act provides that the Registrar must be satisfied that either the application had 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 the requirements mentioned in subsection (4AA) were met. Section 190C (4AA) refers to an applicant being a member of the native title claim group and being 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.

27    After examining the material, the Member was satisfied that the applicant was a member of the Wallara Claim group, however was not satisfied of the identity of the claimed native title holders and that the applicant had been authorised by all members of the native title claim group. In particular the Member observed that certain families were noted in the reconsideration application as being specifically excluded, however such inclusions and exclusions of persons from the claim group were not cogently explained. The Member could not be satisfied as to the identity of the native title holders for the Wallara Claim, and was not satisfied that there was a coincidence between the actual native title claim group and the one which has been described in the Wallara Claim.

28    In relation to authorisation of the applicant by all other members of the claim group to make the application and to deal with matters arising in relation to it, the decision-making process for authorisation must be identified. The Member examined the materials and concluded that the information provided about the decision-making process was not sufficient to permit a conclusion as to the nature of the traditional process is, or that it has been used by members of a claim group to authorise an applicant to take actions on their behalf. The Member further observed that it was not clear, on the basis of the material, whether the decision-making process was one that was mandated by traditional laws and customs, or one that had been agreed to and adopted by the native title claim group, or whether all the people who were required to participate in the decision making process were given an opportunity to participate.

29    Accordingly, the Member concluded that the Registrar should not accept the Wallara Claim for registration, in accordance with s 190E of the Native Title Act.

Grounds of review

30    The applicant’s grounds of review are set out in her affidavit filed 21 April 2022.

31    The grounds of review are plainly discursive, and intertwined with opinions and evidence. It is difficult to distil them. To the extent that I can distil them, it appears that they are as follows:

(1)    The Member erred in respect of s 190B (2) of the Native Title Act, by reference to information set out in para 4 (a)-(j) of the applicant’s affidavit;

(2)    The Member erred in respect of s 190B (5)(a)-(c) of the Native Title Act, by reference to information set out in para (4)(k)-(o) of the applicant’s affidavit;

(3)    The Member erred in respect of s 190B (6) of the Native Title Act, by reference to information set out in para (4) of the applicant’s affidavit;

(4)    The Member erred in respect of s 190B (7) of the Native Title Act, by reference to information set out in para (4)(p) of the applicant’s affidavit;

(5)    The Member erred in respect of s 190C (3) of the Native Title Act, by reference to information set out in para (4)(q) of the applicant’s affidavit.

submissions of the parties

32    The applicant submitted, in summary:

    the applicant represented her family and, by extension, clan members, and acted with their authorisation;

    the applicant was a single mother with a sole income, who did not have the resources to arrange meetings with custodians and did not have a legal team of solicitors, barristers or anthropologists to support her;

    the applicant had attended two authorisation meetings for the Muluridji People and “can guarantee that not all custodians attended these meetings at most 20/300”;

    the applicant’s effort and merit must be taken into account;

    the applicant had attempted to provide a rough map of the area in which the claim group asserted that it holds native title, however the claim area may not fit into a normal box;

    the applicant’s family and clan upheld their cultural knowledge and practices and have the right to separate from the tribal group; and

    the applicant had a prima facie connection with the claim area.

33    The State submitted, in summary:

    the application did not meet the requirements in s 190C(4AA) of the Native Title Act because:

•    the material in support of the claim did not describe the authorisation process;

•    based on the material in support of the authorisation, not all members of the claim group had authorised the making of the claim; and

•    the claim group were not a native title claim group, but rather a sub-group of a group of native title holders.

    the particulars and map of the claim area did not meet the requirements in s 190B(2) of the Native Title Act because:

•    the map presented an excluded area which was not reflected in the boundary description and it was not possible to identify the boundaries of this area (noting that the geospatial assessment of the Tribunal reflected that this area could be a carve out of an existing determination); and

•    the map and information are inconsistent.

consideration

34    Part 7 of the Native Title Act concerns the registration of native title claims. Section 190A provides that the Registrar is to consider all native title claims referred to it under s 63 of the Act.

35    The power of the Court to review a decision of the Native Title Registrar is conferred by s 190F of the Native Title Act. Principles relevant to the exercise of that power were discussed (in relation to antecedent provisions) by the Full Court in Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652, as reiterated more recently by Griffiths J in Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales [2017] FCA 76 where his Honour said:

34.    The principles guiding the exercise of the Court’s review jurisdiction under s 190F of the Act are relatively well settled following the Full Court’s decision in Western Australia v Strickland [2000] FCA 652; 99 FCR 33 at [63]- [67] and may be summarised as follows (albeit by reference to s 190D which was the relevant section at the time):

(a) there is some similarity between a review under s 190F and a review of a decision made by an officer of the Court under a delegated power from the Court even though the Registrar does not exercise a delegated power. The Registrar exercises an administrative power in respect of a matter in which the Court has and is exercising jurisdiction;

(b) a s 190F review is not restricted to consideration and determination of a question of law and extends to determination of issues of fact; and

(c) the review may require re-determination of factual issues according to the material available to the Court and the Court is not restricted to considering material which was before the Registrar.

35.    It is also generally accepted that the Court should exercise an appropriate degree of self-restraint in conducting a review , as is reflected in the following observations of French J in Strickland v Native Title Registrar [1999] FCA 1530; 168 ALR 242 at [44]:

It is important to bear in mind in the review process the main objects of the Act set out in s 3 which are unchanged by the amendments and particularly the object relating to the protection of native title. It is also necessary to bear in mind the administrative character of the registration test and the time constraints under which it is to be applied. A significant margin of appreciation must be allowed for the experience and detailed administrative knowledge of the Registrar and his delegates in making the largely evaluative judgments on whether applications comply with the statutory conditions of registration. Their reasons are not to be scrutinised finely and minutely with an eye keenly attuned to error – Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.

36    With these principles in mind I now turn to review of the decision of the Member, and the grounds raised by the applicant.

37    The first point to note is that, as made clear by s 190A (6B) of the Native Title Act, the Registrar must not accept a claim for registration if neither s 190A (6) nor s 190A (6A) applies. There is no room for the exercise of discretion in this section – s 190A (6B) is expressed in mandatory terms.

38    Second, and in particular, s 190A (6)(b) provides that the Registrar must accept the claim for registration if the claim satisfies all of the conditions in s 190B (which deals mainly with the merits of the claim) and s 190C (which deals with procedural and other matters). The Member found that the Wallara Claim should not be accepted for registration for want of compliance with ss 190B (2), 190B (5), 190B (6), 190B (7), 190C (3) and 190C (4) of the Native Title Act.

39    Third, in concluding that the Wallara Claim did not satisfy ss 190B (2), 190B (5), 190B (6), 190B (7), 190C (3) and 190C (4) the Member gave detailed and cogent reasons, referable to the material provided by the applicant, the Native Title Act, and caselaw applying that Act. I note that the applicant is a litigant in person. However her submissions do not address the Member’s concerns that the Wallara Claim failed to satisfy the relevant provisions of the Native Title Act.

40    Fourth, and turning now to the material before the Court, I am not satisfied that the Wallara Claim satisfies the requirements of s 190C (4)(b) and s 190C (4AA) of the Native Title Act, in particular that the applicant is authorised to make the application by all the other persons in the native title claim group. For example, a document dated 12 November 2020 appears to be an authorisation by the persons who have signed it that the applicant is authorised by them in accordance with the Native Title Act in respect of the Wallara Claim. That document is as follows:

41    As the State submitted, however, it is unclear that the persons who signed that document were the correct people for the claim group. Paragraph 2 of the Wallara Claim, Form 1, dated 7 July 2021 provides:

The applicant is authorised to make this application as:

As the knowledge holder of Mick Sheppard’s (Apical ancestor) granddaughter, Rowena Sheppard’s knowledge and culture and;

A person authorised by the Native Title claim group “Wallara People, clan of the Koko-Muluridji” to make the native title determination application.

•    Letter dated June 10, 2013 — right to speak as knowledge holder of Rowena Sheppard, daughter of Willie Sheppard (granddaughter Mick Sheppard).

    See Appendix A.

•    Authorised by descendants of Mick Sheppard (see Attachment B) names as follows:

    Maureen Green, Rayleen Green, Clive Green and Allan Green.

•    Copy of a text message confirming authorisation from the Fagan family.

I have been the representative for the families of the Wallara People, clan of the Koko-Muluridji (Sheppard family) upholding tribal LORE as a respondent party in the following Native Title claims:

QUD398/2015, QUD692/2016, QUD811/2018, QUD824/2018, QUD423/2018, QUD422/2018, QUD658/2017.

I have represented the interests of my clan participating in the ILUA consultative committee with the Tablelands Regional Council (TRC) from 2013 — see partial minutes below:

42    Two persons identified as descendants of Mick Sheppard, namely Clive Green and Allan Green, did not sign the authorisation document dated 12 November 2020. There is no explanation for this.

43    Further ambiguity exists in light of a letter dated 27 April 2015, signed by persons who identify themselves as “descendants of Mick Sheppard”, as follows:

44    As the State submitted at the hearing, this letter suggests that the descendants of Mick Sheppard are more numerous than for example, those persons who signed the Form 1.

45    It is also not in dispute that there are existing determinations on behalf of the Muluridji people, that part of the group identity of the applicant is that she is Muluridji, and that the existing determinations were that the Muluridji people held communal rights as an entire claim group on behalf of all of the people who were listed as having descended from the apical ancestors in those claims. The Wallara Claim is a claim on behalf of only one of the named apical ancestors in that claim, namely Mick Sheppard. It is unclear why apical ancestors other than Mick Sheppard were excluded from the Wallara Claim. This suggests that the Wallara People are not the native title claim group, but rather a sub-group within a broader group of native title holders.

46    In this respect I also note that certain families were identified as excluded from the Wallara Claim. The reasons for this are unclear.

47    Fifth, s 190B (2) of the Native Title Act requires the Registrar to be satisfied that the information and map contained in the application are such that it could be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters. Maps in the Wallara Claim identify two “excluded areas”, however the external boundary description in the Form 1 does not explain those excluded areas or identify them with clarity. The material in the applicant’s affidavit takes this lack of clarity no further.

48    Sixth, I agree with the submission of the State that the Wallara Claim does not provide adequate evidence of the Wallara people’s traditional laws and customs, how those laws and customs give rise to native title rights and interests, and how the laws and customs have continued to be observed by a sufficient number of contemporary claimants to allow the court to be satisfied of the matters in sections 190B (5), (6) and (7). Such evidence as is provided by the applicant is either in the form of assertions or at a high level of generality, without information about such matters as the way in which traditional rights and interests were transmitted, what those traditional rights and interests were, how knowledge is conveyed to members of the claim group, how members in the claim group can be identified as elders, and any restrictions on receipt of such knowledge.

conclusion

49    For the reasons I have outlined above, the applicant’s application for review must fail.

Associate:

Dated:    1 March 2023