Federal Court of Australia

Bonney v Watarra Aboriginal Corporation RNTBC (No 4) [2026] FCA 1414

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant must pay the costs of and incidental to the proceeding, of each of the respondents, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Jennifer Bonney, seeks judicial review of a decision of a delegate of the second respondent, the Registrar of Aboriginal and Torres Strait Islander Corporations. The decision was to grant an application for the registration of the first respondent, Watarra Aboriginal Corporation RNTBC, as an Aboriginal and Torres Strait Islander corporation (ATSI corporation) under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act).

2    In 2022, this Court made a consent determination of native title in favour of the Darlot native title claim group: Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia (No 2) [2022] FCA 764. Watarra is the prescribed body corporate (PBC) that has been appointed to hold the native title on behalf of the Darlot common law holders, as the Native Title Act 1993 (Cth) calls them. It is a requirement of the Native Title Act that a PBC for the common law holders be registered as an ATSI corporation. It is common ground that Ms Bonney is one of the common law holders in respect of the Darlot determination.

3    Ms Bonney’s essential complaint is that Watarra was incorporated on the basis of a list of members that did not include her. She puts this as a failure by the Registrar to recognise her and other persons as ‘founding members’ of Watarra (the only identification of those persons, given by Ms Bonney in oral submissions, was that they include Shirley Thorne and Barbara McGilvray). She makes this complaint even though she became a member of Watarra some eight months after it was incorporated. In the originating application, Ms Bonney says that the Registrar’s decision involved a failure ‘to observe procedures required by the rules’ as well as an error of law. As will be discussed below, in other written submissions she also invokes a number of other grounds of judicial review.

4    Ms Bonney brings the application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). She seeks an order compelling the Registrar to recognise her and other persons as founding members of Watarra, and damages. As I have already ruled, damages are not available as a remedy under the ADJR Act, so nothing more need be said about that form of relief: Bonney v Watarra Aboriginal Corporation RNTBC [2025] FCA 1451 at [16] (Bonney (No 1)); Bonney v Watarra Aboriginal Corporation RNTBC (No 3) [2026] FCA 558 (Bonney (No 3)) at [25].

5    The Registrar relies on a notice of objection to competency, which was heard at the same time as the substantive hearing of Ms Bonney’s application: see generally Bonney (No 3). The basis of the notice is a contention that Ms Bonney does not have standing to seek relief under s 5 of the ADJR Act, because she is not a ‘person who is aggrieved by a decision’ to which the Act applies for the purposes of that section. The Registrar also makes substantive submissions in opposition to the application, on the assumption that it is not found to be incompetent.

6    Earlier in the proceeding, Watarra sought summary judgment against Ms Bonney on the basis that it has not made any decision reviewable under the ADJR Act. While I accept that this is so, in Bonney (No 3) at [23]-[32] I decided that it was necessary for Watarra to remain as a party. That is because its interests are potentially affected by orders the Court may have power to make to give effect to Ms Bonney’s intent, such as an order setting aside the decision to recognise its incorporation. At the hearing of this application, Watarra adopted the Registrar’s submissions and, save as mentioned below, made no further submissions of its own.

7    For the following reasons, the notice of objection to competency will not be upheld, but the application will be dismissed on the merits.

The relevant statutory provisions

8    The decision under review is a decision the Registrar made under s 26-1 of the CATSI Act. It is necessary to proceed on a proper understanding of the relevant provisions of that Act, so it is convenient to address them first.

9    Section 1-25 of the CATSI Act provides for the objects of the Act. These include providing for the Registrar and the Registrar’s functions and powers, and providing for the incorporation, operation and regulation of the bodies that it is appropriate for the Act to cover, including bodies that are incorporated for the purpose of becoming registered native title bodies corporate.

10    Section 1-30 of the CATSI Act establishes the Office of the Registrar within the Attorney-General’s Department. The Registrar has functions including to administer the Act, to maintain such registers as the Registrar thinks appropriate, and to make available to the public information about the registration of ATSI corporations: s 658-1(1)(a)-(c). ‘The Registrar has power to do all things necessary or convenient to be done for, or in connection with, the performance of his or her functions’: s 658-10.

11    Chapter 2 of the Act provides for an application to be made to the Registrar for registration of an ATSI corporation: s 6-5(1). There are a number of registration requirements that must be met before the Registrar may register an ATSI corporation: s 6-5(2). Chapter 2 also deals with the effects of registration of an ATSI corporation on the corporation’s members, among others: s 6-5(3). An ATSI corporation is defined as a corporation registered under the CATSI Act: s 16-5.

12    Section 21-1 of the CATSI Act makes provision for applications for new registration of an ATSI corporation. Section 21-1(1) provides that an application must contain a range of information, which relevantly includes (at para (g)) ‘the names and addresses of each person who consents in writing to become a member of the corporation’. The application must be accompanied by copies of those written consents: s 21-5(b). Along with the written consents, evidence of certain decisions must accompany the application: s 29-15.

13    Section 138-1 provides that a person is a ‘member’ of an ATSI corporation:

… if the person:

(a)     is a member of the corporation on its registration; or

(b)     agrees to become a member of the corporation after its registration and the person’s name is entered on the register of members.

14    Relevantly, under s 42-10(1)(a):

[a] person becomes a member of an Aboriginal and Torres Strait Islander corporation on registration of the corporation if:

(a)    the corporation was registered as a result of an application made under section 21-1 and the person is specified in the application with the person’s consent as a proposed member of the corporation…

15    Division 29 of the Act is ‘What are the basic requirements for registration?’ Several such requirements are set out in the sections that comprise Div 29. Some of them do not apply to an application made under s 21-1, as Watarra’s was. Of present relevance are four which (among others) did apply to Watarra:

(a)    s 29-1 – Minimum number of members requirement – this requires compliance with s 77-5(1), which relevantly requires the corporation to have at least 5 members;

(b)    s 29-5 – Indigeneity requirement – this requires that a certain percentage of the members of the corporation are Aboriginal and Torres Strait Islander persons;

(c)    s 29-15 – Pre-incorporation requirement – this is essentially about the authorisation, by the people listed in the application as persons who consent to become members of the corporation, of various things, including the making of the application and the proposed constitution; and

(d)    s 29-20 – Internal governance rules requirement – this requires the constitution of the corporation to comply with certain requirements found in s 66-1, and also lodgement of the proposed constitution before the Registrar decides the application for incorporation.

16    Part 2-3 of the CATSI Act makes provision for decisions to be made on applications for incorporation. Section 26-1(1) requires the Registrar to make a decision whether or not to grant an application for registration under s 21-1. Section 26-1(2) empowers the Registrar to grant the application if certain conditions are met, including (relevantly): that an application for registration has been lodged; that the application is accompanied by the matters set out in s 21-5; and that the Registrar is satisfied that on registration the corporation will meet such basic requirements found in Div 29 as are listed in s 26-1(2)(c). In each instance where s 26-1(2) states those conditions, however, it first refers the reader to either s 26-5 or s 26-10. For example, s 26-1(2)(a) ends with ‘(but see section 26-5)’. 

17    Section 26-5 and s 26-10 provide as follows:

26-5    Registrar may grant application if application is incomplete etc.

Despite paragraphs 26-1(2)(a), (b), (ba) and (bb), the Registrar may grant the application even if the application for registration:

(a)    is incomplete or contains errors (as long as the applicant has provided his or her name and address in the application); or

(b)    some or all of the material required to accompany the application under section 21-5, section 22-5 or 23-5 is not provided, is incomplete or contains errors.

26-10    Registrar may grant application if some basic requirements are not met

Circumstances when Registrar may register corporation

(1)    Despite paragraph 26-1(2)(c), the Registrar may grant the application even if the Registrar is not satisfied that the corporation, on registration, would meet:

(a)    the minimum number of members requirement; or

(b)    the age of members requirement; or

(c)    the pre-incorporation requirement; or

(d)    the pre-transfer of registration requirement; or

(e)    the creditor notice requirements; or

(f)    the pre-amalgamation requirements.

Registrar not to register body in certain circumstances

(2)    However, the Registrar must not grant the application and register an Aboriginal and Torres Strait Islander corporation if, on registration, the corporation would not meet:

(a)    the Indigeneity requirement; or

(b)    the internal governance rules requirement; or

(c)    the name requirement.

18    Finally, it is necessary to set out s 561-1(1) of the CATSI Act, on which Ms Bonney relies:

A person commits an offence if the person, in a document required by or for the purposes of this Act or lodged with or submitted to the Registrar:

(a)    makes or authorises the making of a statement that, to the person’s knowledge, is false or misleading in a material particular; or

(b)    omits or authorises the omission of any matter or thing without which the document is, to the person’s knowledge, misleading in a material respect.

Penalty: 200 penalty units or imprisonment for 5 years, or both.

The facts

The evidence and objections to evidence

19    At the final hearing, Ms Bonney relied on five affidavits, sworn or affirmed by her respectively on: 2 October 2025; 18 November 2025; 5 January 2026; 9 February 2026; and 16 February 2026.

20    Counsel for the Registrar raised what can be described as general concerns about the relevance of these affidavits that did not rise to objections to their admission into evidence. I have, of course, had regard to the extent to which material in the affidavits is, or is not, rationally probative of any fact in issue.

21    Counsel did, however, object to the admissibility of two specific affidavits, namely those Ms Bonney affirmed on 9 February 2026 and 16 February 2026. These were both filed following the dismissal of an application by Ms Bonney to reinstate Roe Legal Services as a respondent to the proceeding after it had been removed as a party: see Bonney (No 1) and Bonney v Watarra Aboriginal Corporation RNTBC (No 2) [2026] FCA 66 (Bonney (No 2)). The parties agreed that those objections could be resolved as part of the final reasons for judgment.

22    The affidavit of 9 February 2026 supports an informal application made by Ms Bonney, essentially to set aside the timetabling orders which were then in place and stay the proceeding pending a foreshadowed appeal against the dismissal of the application to reinstate Roe Legal Services as a respondent.

23    The affidavit of 16 February 2026 is made in support of the respondents (apparently including Roe Legal Services) ‘remaining’ parties to the proceeding and ‘oppose[s] the respondents’ application to be removed’. It makes a number of allegations about the conduct of the Darlot native title claim, conduct of Roe Legal Services in connection with that claim, and about a separate native title claim made by a claim group called the Nyalpa Pirniku.

24    I accept that, with one exception, neither of these affidavits contain evidence that is relevant to any issue in this proceeding. The informal application to stay the proceeding was dismissed on 18 February 2026 following a case management hearing. Roe Legal Services is no longer a party to this proceeding, and its conduct is not at issue. Changes in the formulation of the Darlot native title claim between meetings of the common law holders is not relevant to the decision of the Registrar to register Watarra following the Darlot determination. The separate Nyalpa Pirniku claim has no relevance to this proceeding, and has since been determined. An asserted familial connection between Watarra’s Chairperson and the Nyalpa Pirniku is similarly of no relevance to the Registrar’s decision.

25    The exception to this is paragraph 9(d) of the affidavit of 16 February 2026, which annexes a document titled ‘Darlot (WAD142/2018) / Pre-Incorporation & Authorisation Meeting’. The paragraph contains allegations that the Registrar’s approval of Watarra’s application was based on ‘unauthorised’ meeting minutes, which were not a ‘true’ record because they excluded Ms Bonney’s name and the names of unidentified other persons. These allegations are relevant to this matter, so paragraph 9(d) and annexure JB-1 are taken to be read in, with the balance of the 16 February 2026 affidavit, and the entirety of the affidavit of 9 February 2026, ruled inadmissible due to irrelevance.

26    The Registrar relied on the affidavit of Charlotte Saunders affirmed on 16 January 2026, which was admitted into evidence.

27    Watarra relied on the affidavits of Verna Vos sworn on 23 December 2025 and Kelsi Forrest sworn on 6 November 2025, which were also read into evidence.

Common ground

28    A few basic facts were not in dispute.

29    A meeting of the traditional owners under the Darlot determination took place on 13 December 2021 at The Overland Hotel in Kalgoorlie. One of the purposes of the meeting was to authorise the incorporation of Watarra as the entity to hold native title on behalf of the common law owners.

30    Ms Bonney is one of the traditional owners. She attended the meeting. But no written consent by her to become a member was sent to the Registrar as part of the application for registration of Watarra as an ATSI corporation. An attendance register that appears to have listed out a number of people (approximately 100) who did consent was included with the application, but Ms Bonney’s name was not on that register.

The minutes of the meeting

31    It is not entirely clear what is in dispute beyond those basic facts. Ms Bonney takes issue with what she describes as the minutes of the 13 December 2021 meeting. Two written records of the meeting are in evidence.

32    One is headed: ‘Darlot (WAD142/2018) / Pre-Incorporation & Authorisation Meeting’. It contains what appears to be a reasonably detailed description of what took place at the meeting, including discussion and the passing of ten resolutions. So it appears on its face to be a comprehensive set of minutes. But it carries a ‘Draft’ watermark, and is not signed by the facilitator of the meeting in the space provided for that signature. This record is annexed to Ms Vos’s affidavit.

33    For completeness, I note that this record also appears as annexure JB-1 to Ms Bonney’s affidavit of 16 February 2026. Annexure JB-1 is an effectively identical document to the one annexed to Ms Vos’s affidavit. It does not carry the ‘Draft’ watermark but is unsigned, and Ms Bonney describes it as a ‘draft minute’.

34    It is worth setting out all of Ms Vos’s evidence about the meeting in her affidavit:

3.    I refer to the applicant’s affidavit dated 19 November 2025, where she says at paragraph 10 that she attended the meeting on 13 December 2021. I was at that meeting and I agree the applicant was there.

4.    At that meeting, the attendees were asked to sign an A3 attendance sheet. This was before [Watarra] was registered as a corporation. The meeting was a claim group meeting for the purposes of agreeing to [Watarra] being registered, and to authorise a rulebook for [Watarra]. I believe the attendance sheet of claim group members was then sent to [the Registrar] for listing members in the application to register [Watarra]. I have since seen a draft copy of the minutes (I have not been able to find the signed copy of the minutes for this affidavit) and at page 6 I note the minutes record that ‘Facilitator advised that the names recorded on the meeting register will form the initial members of the PBC’. Annexed to this affidavit and marked ‘VV-1’ is a true copy of the draft minutes.

5    I have attended other meetings of [Watarra] and of the Darlot claim group where the applicant has been present at the meeting but has not signed appropriate forms, such as travel assistance forms, and the applicant said that she does not sign forms. I believe that the applicant did not sign the attendance sheet at the meeting on 13 December 2021, and this is why she was not listed as a member when [Watarra] was incorporated.

35    The other written record is headed ‘Darlot (WAD142/2018) Pre-Incorporation Meeting Record’. It is briefer than the first record. It also lists five persons as representative attendees of the meeting, along with a longer attached list of ‘Darlot Claimants Registered and in attendance at the meeting’. This second record only notes the passing of seven of the ten resolutions that are noted in the longer record, and says nothing about the discussion that preceded and followed them. The record is annexed to Ms Saunders’s affidavit and appears as part of the application for registration of Watarra that was sent to the Registrar on 1 March 2022 by a solicitor at Roe Legal Services, acting on behalf of Watarra or those who sought to incorporate it.

36    Ms Bonney draws attention to the differences between the two version of the records and submits that the ‘inconsistencies’ are not minor and are material. She submits that the inconsistencies demonstrate that the minutes of the meeting (which she identifies as the shorter record annexed to Ms Saunders’ affidavit) ‘were altered after the meeting, without approval of the Darlot claim group’ (emphasis in original). Hence it appears that Ms Bonney does not accept the accuracy of, at least, the more comprehensive draft minutes annexed to Ms Vos’s affidavit. That is confirmed by Ms Bonney’s affidavit of 16 February 2026, which says that the more comprehensive draft minutes ‘are not a true copy of the minutes, because my name and several other names were excluded’.

37    I accept that there are differences between the two records, but I do not accept that they are evidence of some nefarious alteration of the minutes of the meeting. For with one exception, the differences are readily explained by an obvious inference, which I make: the shorter record was prepared for the specific purpose of establishing, for the Registrar, the requirements that needed to be satisfied for the application for registration of Watarra to succeed; while the longer record is just what it appears to be – the draft minutes of the meeting.

38    That inference arises because the shorter record was sent to the Registrar for that very purpose and contains only the resolutions that were relevant to the incorporation application.

39    Resolutions 1 and 2 establish the decision making process that was followed at the meeting, as a necessary preliminary to support the effectiveness of the resolutions that followed. Resolution 4 records the adoption of Watarra’s constitution and authorises Roe Legal Services to apply for incorporation on Watarra’s behalf. Resolution 5 records the consent of the common law holders present at the meeting to becoming initial members of Watarra. Resolution 6 appoints the directors of Watarra on registration. Resolution 7 appoints Ms Forrest to be the contact person on registration of the corporation until its first general meeting. Finally, Resolution 10 was that the common law holders present at the meeting nominated Watarra to be the PBC to hold and manage the native title the subject of the Darlot determination on trust for them. These resolutions establish before the Registrar the pre-incorporation requirements, in particular, of s 29-15 of the CATSI Act: see [15] above.

40    The consistent numbering of these resolutions indicates that there is no attempt to present them a complete record of everything that transpired at the meeting. Missing from the shorter record are: Resolution 3, concerning the composition of the apical ancestors in the claim group description; Resolution 8, authorising consent to the draft minute of consent determination of native title; and Resolution 9, authorising the applicant for native title to do all things necessary to ensure that the consent determination is achieved, broadly on the terms presented at the authorisation meeting. Evidently, these concern native title and not the incorporation of Watarra. Hence, I infer that the differences between the two records of the meeting are explained by the differences in their respective purposes. The shorter record contains only what was necessary to support the application for incorporation. The longer record is what it appears to be: a comprehensive set of draft minutes of the meeting.

41    Save in one respect, I need make no finding as to whether those more comprehensive draft minutes accurately record what transpired at the meeting. Other than the composition of the list of initial members of the corporation, it is not clear what, if anything, is in issue between the parties about that. It is only necessary to say that, to the extent that Ms Bonney seeks to establish that any of the resolutions set out in either record was not passed (it is not clear that she does seek this), she has not established that. There is no reason to think that the resolutions were not passed as recorded on the face of the two documents, and consistently between them (save as to a correction of an obvious error in the date of the meeting in Resolution 5 and Resolution 10 of the draft minutes). I find that they were passed, as recorded in each document.

42    I mentioned at the outset an exception to my view that the differences between the two records are explained by the different purposes of the records. It is that in the longer record, a person named Appollonia Abdullah is on the register of attendees at the meeting, but is absent from that register as attached to the shorter record; and, in the shorter record, a person named Geraldine Hogarth is recorded on the register, but is absent from the longer record. Further, although neither of the two persons identified by Ms Bonney in her oral submissions appear in the register of either record, one, Ms Thorne, appears in the body of the longer record as a person who spoke at the meeting. But there is no suggestion that the presence or absence of those persons on the register is relevant to any issue in the proceeding, and a few discrepancies of that kind is no support for any suggestion that the minutes of the meeting were deliberately altered with any improper or fraudulent intent.

Ms Bonney’s absence from the register of attendees

43    Ms Bonney does not appear in either version of the register of attendees of the meeting of 13 December 2021 (or lists of persons providing apologies). That is even though, as has been said, it is common ground that she was at the meeting.

44    The only evidence shedding any light on this is paragraph 5 of Ms Vos’s affidavit, which is set out above. I only put weight on that paragraph in the limited respect that I accept that Ms Vos observed on other occasions that Ms Bonney refused to sign forms. But it is notable that Ms Vos does not say that she saw Ms Bonney refuse to sign the attendance register at the meeting. No copy of the original register bearing signatures is in evidence. I make no finding that Ms Bonney does not appear on the register because she refused to sign it.

45    Nevertheless, Ms Bonney has adduced no evidence of what she did at the meeting or why she does not appear on the register. In her outline of submissions, Ms Bonney does submit that signature in an attendance book is a ‘long-standing’ and ‘strict’ entry requirement to general meetings of Watarra, but she does not make any submissions as to whether that procedural requirement was in place at the time of the meeting (which pre-dated Watarra’s incorporation). In reply oral submissions at the hearing, she claimed that she did sign the register, but I do not accept this late attempt to give evidence from the bar table. Ms Bonney had ample opportunity to provide that evidence over the course of her five affidavits. She knew, at least from the time that Ms Vos’s affidavit was filed in December 2025, that Watarra would contend that she did not sign the attendance register. But she has adduced no evidence contradicting that.

46    There is, then, no persuasive evidence explaining why Ms Bonney did not appear on the register of attendees of the meeting, despite the fact that she was there.

47    In any event, I infer that the register of attendees, together with the passing of Resolution 5 described above, were submitted to the Registrar as evidence of the written consent of the persons on it to be members of Watarra for the purposes of s 21-1(1) and s 42-10 of the CATSI Act (see [12]-[14] above). It follows that Ms Bonney did not become a member at the time of registration of Watarra as an ATSI corporation, by force of s 42-10. But to the extent that Ms Bonney relies on any particular explanation or reason for her absence from that register as support for her application for judicial review, she has not established one.

The application for incorporation and the Registrar’s decision

48    As has been said, documents supporting the application for Watarra’s registration as an ATSI corporation were sent to the Office of the Registrar on 1 March 2022. These included the pre-incorporation meeting record that has been described, and the attendance register that did not contain Ms Bonney’s name. An application form is in evidence which I infer was completed online at around the same time.

49    On 29 March 2022, a delegate of the Registrar wrote to Watarra care of Ms Forrest, informing her that under Div 26 of the CATSI Act, the application for incorporation had been approved. A certificate of registration of the same date was enclosed. The decision under review can thus be taken to have been made on that day.

The competency of the application for judicial review

50    Against that background of law and fact, it is now possible to consider the Registrar’s objection to competency.

51    The issue is raised pursuant to r 31.05 of the Federal Court Rules 2011 (Cth), which requires a notice of objection to competency to be filed when a respondent objects to the competency of an application for judicial review. The grounds of the objection brought in the notice are:

(1)    that the Registrar’s decision not to recognise Ms Bonney as a founding member of Watarra was not a ‘decision’ within the meaning of s 3(2) of the ADJR Act;

(2)    that Ms Bonney has not identified any of her interests that have been adversely affected by the decision; and

(3)    that Ms Bonney is not a ‘person who is aggrieved’ by a decision of the Registrar pursuant to s 5(1) of the ADJR Act.

52    I considered the notice of objection to competency on a preliminary basis in Bonney (No 3). I declined to uphold it at that time but did not dismiss it, ordering rather that it be listed for further consideration at the final hearing.

53    In Bonney (No 3) I observed that the first ground of the objection was based on a narrow characterisation of the decision about which Ms Bonney complains and that a broader reading was open, where what is being challenged is the Registrar’s decision under the CATSI Act to register Watarra as an ATSI corporation. The Registrar now accepts this.

54    The focus of the Registrar’s submissions about competency in this proceeding was therefore on the second and third grounds of objection, to the effect that Ms Bonney is not a ‘person who is aggrieved’ by any decision the Registrar made for the purposes of the ADJR Act. This does indeed go to the question of the competency of the application, in the sense of whether the law permits it to proceed: see Li v Australian Information Commissioner [2026] FCA 1184 at [38], [68] (Wheelahan J).

55    In Bonney (No 3), I expressed doubt about the proposition that Ms Bonney had not identified any interest of hers that was adversely affected by her non-recognition as a founding member of Watarra, in circumstances of uncertainty about the nature of the aggrievement that she was putting before the Court. It was this that led me to decide that the question of competency was appropriately determined at trial.

56    At trial, the Registrar’s submission that Ms Bonney’s application is incompetent was based on the statutory framework set out above. The Registrar submits that Ms Bonney’s grievance that she was not recognised or included as a ‘founding member’ of Watarra cannot be a consequence of the decision that the delegate of the Registrar made, because it was not part of the decision, or the criteria on which it was based, to determine who was a ‘founding member’. That is not a status recognised under the CATSI Act. And s 26-5 specifically authorises the Registrar to grant an application for registration even if the material required to accompany it is not provided or is incomplete or contains errors. So, even if Ms Bonney is aggrieved by a lack of recognition of her as a ‘founding member’, that is not a consequence of any decision that the Registrar made.

57    I accept this submission. It is apparent from the statutory framework that, as far as membership of a proposed ATSI corporation goes, before granting an application for registration the Registrar ordinarily needs to be satisfied that that: there are at least five members; that a certain percentage of them are Aboriginal and Torres Strait Islander persons; and that 75% of the persons listed in the application for registration as persons who consent to become members have authorised the application for incorporation, among other things: see s 21-5, s 26-1(2)(c), s 29-1 and s 77-5, s 29-5 and s 29-15. And even then, the Registrar may grant the application if she is not satisfied of some of those requirements: s 26-10.

58    None of this requires the Registrar to be satisfied that the list of persons who consent to become members which is submitted with an application for registration is accurate or complete. It follows that the Registrar’s decision to grant an application for registration does not say anything about whether any given individual is, or is not, a ‘founding member’. While that is not a term used in the CATSI Act, in the context of the statutory framework outlined above it is fairly understood to signify a person who has provided the necessary consent, so that upon registration, under s 42-10, they become a member of the corporation.

59    But while I accept the submissions the Registrar has made about this, they do not complete the analysis, for they do not take account of the effect of s 42-10 itself. As has just been mentioned, under that section, on registration of the corporation each person who is specified in the application with the person’s consent as a proposed member of the corporation becomes a member. It follows that persons who are not so specified do not become members. Therefore, a direct effect of the decision to grant the application is that certain persons become members, and others do not.

60    Membership carries with it certain rights under the CATSI Act, such as the right to put forward resolutions to a general meeting of the corporation, to vote at general meetings and to seek certain orders: see Subdiv 201-C, s 201-115 and s 163-1. Under r 5.12 of Watarra’s rule book, members also have the right to look at minutes of general meetings and annual general meetings free of charge, and to look at Watarra’s books if they are authorised to do so by its directors or a members’ resolution. So if a person does not become a member, that can make a difference to the person’s rights and interests.

61    Of course, this does not mean that every person in the world who is not specified on the list is a person aggrieved by the Registrar’s decision within the meaning of the ADJR Act. Section 3(4)(a)(i) of the Act means that this criterion may be satisfied by a person whose interests are adversely affected by the decision. The scope of the term ‘person who is aggrieved’ is thus ‘of very wide import’ and should not be ‘artificially narrowed by glosses upon its broad language’: Argos Pty Ltd v Minister for the Environment and Sustainable Development [2014] HCA 50; (2014) 254 CLR 394 at [48] (French CJ and Keane J). As noted in Bonney (No 3), in that case at [61], Hayne and Bell JJ explained that (citations omitted):

The focus of the inquiry required by the words is upon the connection between the decision and interests of the person who claims to be aggrieved. The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from (“beyond”) its effect on the public at large…

62    It follows that, unsurprisingly, that when the Registrar made the decision to register Watarra, not every member of the public was potentially a ‘person who is aggrieved’ by the decision within the meaning of s 5(1) of the ADJR Act. In contrast, for example, claimants under a competing native title claim may have standing to seek review of a decision to accept an amended application for registration of a claim under s 190A of the Native Title Act: see Bell v Native Title Registrar [2021] FCA 299.

63    In this case, an applicant under the ADJR Act would need to have a sufficiently direct connection to Watarra, beyond that which they would have as an ordinary member of the public, to qualify them as a person aggrieved by the consequence of the Registrar’s decision, that they have not become a member upon registration. But in circumstances where:

(a)    it is common ground that Ms Bonney is a traditional owner under the native title that is the subject of the Darlot determination;

(b)    it can be inferred that she was, at the time of incorporation of Watarra, eligible to be a member;

(c)    membership to Watarra, as discussed above, carries with it certain rights; and

(d)    she claims, albeit belatedly, that she signed the attendance register

I consider that Ms Bonney’s claim is made in her capacity as a person who is aggrieved by the Registrar’s decision for the purposes of s 5(1) of the ADJR Act.

64    While I have already found that there is no evidence as to (d) above, that is a factual issue that goes to the allegations Ms Bonney makes, not to the question of her standing, in the sense of her ‘liberty of access to the Court’: see Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 276 CLR 519 at [79], [86] (Edelman and Steward JJ). Since it is a claim she is making, she is entitled to have it considered and determined by the Court.

65    It is true that Ms Bonney became a member of Watarra some eight months after it was registered as an ATSI corporation. As the Registrar submits, the rule book of the corporation draws no distinction between the rights of persons who became members on incorporation and the rights of those who became members afterwards. But that eight months cannot be entirely disregarded. If Ms Bonney has suffered no actual prejudice as a result of the delay in becoming a member, that may go to the discretion to grant relief, but it does not affect her standing.

66    The notice of objection to competency is therefore dismissed.

The grounds of judicial review

67    I now turn to consider each of Ms Bonney’s grounds for seeking judicial review. For completeness, I consider the five grounds specified in Ms Bonney’s written submissions at trial (two of which also appeared in the originating application), and four different grounds raised in submissions Ms Bonney filed on 6 February 2026 for the purposes of the hearing that resulted in Bonney (No 3).

(1)    Failure to observe procedures required by law

68    This invokes the ground in s 5(1)(b) of the ADJR Act, ‘that procedures that were required by law to be observed in connection with the making of the decision were not observed’.

69    Nowhere in her written or oral submissions does Ms Bonney explain which procedures she has in mind here, how they were not followed, or which of the grounds for judicial review set out in s 5(1) of the ADJR Act is engaged. Subject to one point for completeness, I infer that this is a catch-all ground that is meant to encompass the more specific grounds about to be addressed.

70    The completeness point is that in oral submissions Ms Bonney complained that the minutes of the meeting of 13 December 2021 never came back to the common law holders under the Darlot determination to approve. Similarly, in her affidavit of 16 February 2026, Ms Bonney says the minutes are ‘unauthorised’. Conceivably, that is a failure to observe a procedure. But even if it were established by evidence (and it is not – Ms Vos’s inability to find a final version of the minutes does not mean that a draft was not provided to the common law holders), there is no basis to think that approval of the minutes by the common law holders was a procedure required by law to be observed in connection with the decision of the Registrar to accept the application for Watarra’s incorporation.

71    I do not uphold this ground.

(2)    Error of law

72    This invokes s 5(1)(f) of the ADJR Act, ‘that the decision involved an error of law, whether or not the error appears on the record of the decision’.

73    Ms Bonney has articulated this ground. The error of law, she says, is that the Registrar relied on altered or misleading material, by which I take her to refer to the pre-incorporation record that is annexed to the affidavit of Ms Saunders and that was among the materials submitted in support of the application for registration. In her submissions of 6 February 2026, she puts it in terms that the Registrar ‘proceeded on the incorrect assumption that the minutes accurately recorded the resolutions of the meeting’.

74    There are two insuperable difficulties with this ground.

75    The first is that, as explained above in the discussion of the facts, the pre-incorporation record is a collection of extracts of the longer draft minutes, which is confined to the information necessary to support the application for registration, namely the passing of the relevant resolutions. That is what explains the differences between the two documents. It does not make the pre-incorporation record misleading.

76    Ms Bonney has adduced no other evidence suggesting that the pre-incorporation record was other than an accurate record of the relevant resolutions. She submits that the wording of the resolutions differs between the two documents, but that is simply not correct (other than the correction of the obvious date error mentioned above, and a minor correction to the spelling of one person’s name). I have found that the resolutions set out in the pre-incorporation record were in fact passed at the meeting of 13 December 2021. This ground fails on the facts.

77    The second insuperable difficulty is that, even if the Registrar had relied on a misleading document, that would not be an error of law within the meaning of s 5(1)(f) of the ADJR Act. No satisfactory test of universal application has been formulated for the determination of the line between an error of law and an error of fact: Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [111] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). For present purposes, it is sufficient to adapt the observation of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [84] that, if the decision maker:

identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found.

78    Ms Bonney points to nothing of that kind here, nor is there anything on the face of the materials suggesting any such error.

79    I do not uphold this ground.

(3)    Reliance on misleading material

80    Ms Bonney also submits that the decision of the Registrar to register Watarra is affected by ‘reliance on misleading material’, because it is based on minutes that were ‘altered or tampered with’. This is said to be contrary to s 561-1(1) of the CATSI Act, which is set out at [18] above.

81    A contention that a decision is based on false or misleading material is not a ground of review under s 5(1) of the ADJR Act. But Ms Bonney’s submissions of 6 February 2026 suggest that she is relying on s 5(1)(g), ‘that the decision was induced or affected by fraud’. In view of her reference to s 561-1 of the CATSI Act, she may also be invoking s 5(1)(j) of the ADJR Act, ‘that the decision was otherwise contrary to law’.

82    Either way, I do not uphold the ground. For reasons already given, it fails on the facts. There is no basis in the evidence to think that the pre-incorporation record was misleading, or that the application for registration of Watarra was affected by fraud.

83    Another reason why no breach of s 561-1(1) has been established is that false or misleading statements, or misleading omissions, are only an offence under that section if they are done with knowledge. No facts pointing to any knowingly misleading conduct on the part of those proposing Watarra’s incorporation have been established.

(4)    Improper purpose

84    Ms Bonney further submits that the reliance on the ‘altered or tampered with’ minutes means that the Registrar’s decision is affected by an improper purpose. Presumably this invokes s 5(1)(e) of the ADJR Act, ‘that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made’, read with s 5(2)(c), by which an improper exercise of power includes a reference to ‘an exercise of a power for a purpose other than a purpose for which the power is conferred’.

85    This ground is simply baseless, and I do not uphold it. There is not a skerrick of evidence suggesting any impropriety or ulterior purpose on the part of the Registrar.

(5)    Denial of procedural fairness

86    Presumably, this ground invokes s 5(1)(a) of the ADJR Act, ‘that a breach of the rules of natural justice occurred in connection with the making of the decision’.

87    Some of Ms Bonney’s submissions went to whether the removal of Roe Legal Services as a party to the proceeding was procedurally unfair. That does not go to the decision under review, which was made by the Registrar, and merely repeats arguments that Ms Bonney has unsuccessfully agitated in this Court twice already: Bonney (No 1) and Bonney (No 2). I need take no account of those submissions.

88    As to the decision under review, the allegation appears to be, once again, that by relying on minutes that had been altered or tampered with, the Registrar’s decision was affected by a denial of procedural fairness.

89    And once again, for reasons already given, the argument fails on the facts. The minutes were not altered or tampered with.

90    Further, even assuming that the Registrar was obliged to accord procedural fairness to Ms Bonney, I do not accept that she has established that it was withheld in this case. In her written submissions filed on 6 February 2026, Ms Bonney asserted that she was denied procedural fairness because her name was omitted from the minutes, she was not given an opportunity to correct the record, and the Registrar did not verify the accuracy of the minutes. The first two of these matters are not established on the evidence. Even if they had been, that would have been conduct of those proposing the incorporation of Watarra, not conduct of the Registrar. The third of these points does concern conduct of the Registrar, but as explained in the discussion of the statutory framework, the Registrar only needed to take regard of material concerning membership to a limited extent and, importantly, s 26-5 and s 26-10 make it clear that the Registrar had no obligation to verify anything.

91    Those conclusions make it unnecessary to determine whether the Registrar was indeed obliged to accord procedural fairness, or natural justice, to Ms Bonney in these circumstances. Whether that is so is a question of the construction of the CATSI Act: see Badari v Minister for Territory Families and Urban Housing [2025] HCA 47 at [17] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ). It would be surprising if an administrative decision maker, making a routine decision like this one, was obliged to consider the position of a potentially very large number of persons who may or may not have an interest in becoming members of a particular corporation, and to give each of those persons some kind of opportunity to comment. Here the Registrar could not be expected to know of Ms Bonney as a person of that kind. But it is preferable to resolve the question of statutory construction only when it has been properly argued on both sides, and makes a difference to the outcome. I reach no conclusion on it here.

92    I do not uphold this ground.

(6)    Relevant considerations not taken into account

93    This invokes s 5(1)(e) of the ADJR Act read with s 5(2)(b). Ms Bonney contends that the Registrar ‘failed to consider the true founding membership’ of Watarra, including herself. But as explained above, under the CATSI Act the Registrar has no obligation to consider whether the list of proposed members submitted to it in support of an application for registration of an ATSI corporation is accurate or complete.

94    I do not uphold this ground.

(7)    Consideration of irrelevant matters

95    This apparent ground relies on s 5(1)(e) of the ADJR Act read with s 5(2)(a). Ms Bonney contends that the Registrar relied on minutes that were false, incomplete, and inaccurate.

96    As has already been explained, this fails on the facts. There is no reason to think that the pre-incorporation record submitted to the Registrar was false or inaccurate. Nor, given its evident purpose, was it incomplete. It did not include a full record of the meeting, as the draft minutes appear to be, but it did not need to.

97    In any event, the reliance on s 5(2)(a) is misconceived. It concerns a situation where a decision maker has regard to matters which, on the proper construction of the relevant statute, it was required to disregard: see Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24 at 39 (Mason J). As set out above, in deciding to accept an application for registration, the Registrar was required to reach a state of satisfaction as to certain matters, some of which were met by the resolutions set out in the pre-incorporation record. The Registrar made no error in having regard to them. I do not uphold this ground.

(8)    No evidence / insufficient evidence

98    Section 5(1)(h) of the ADJR Act provides as a ground of review ‘that there was no evidence or other material to justify the making of the decision’. Ms Bonney submits that there was ‘no probative evidence supporting the conclusion that the persons listed in the minutes were the true founding members’.

99    That submission has no merit. It is well established that no evidence means not a ‘skerrick’ of probative evidence: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ); applied in the ADJR context in McGough v Aged Care Quality and Safety Commissioner [2022] FCA 523 at [137] (Banks-Smith J). There was evidence of the proposed members here, namely an attendance register. That meets the low threshold of being probative of the identities of the persons who consented to be members of Watarra on its incorporation. Ms Bonney disputes it, but that does not make it ‘no evidence’.

100    In any event, as has been explained, the composition of that attendance register was in no way required to ‘justify the making of the decision’, and there is no reason to think that the Registrar did employ it that way.

101    I do not uphold this ground.

(9)    Unreasonableness

102    Section 5(1)(e) of the ADJR Act read with s 5(2)(g) authorises an application for review to be made on the basis that the relevant exercise of a power was ‘so unreasonable that no reasonable person could have so exercised the power’.

103    It is evident from all the discussion above that there is no basis to characterise the Registrar’s decision that way. Ms Bonney submits that it was legally unreasonable to register Watarra ‘based on unverified and inaccurate minutes’. Again, there is no factual merit in that submission, and even if there was, that would hardly make the Registrar’s decision so unreasonable that no reasonable decision maker would have made it.

104    I do not uphold this ground.

Relief

105    Under the heading ‘Relief sought’ in Ms Bonney’s final written submissions, she merely asks the Court to ‘[c]onsider the impact’ of various matters, including factual findings she asks the Court to make; this does not describe any order the Court could actually make. Since, as said above, damages are not available, the only final relief Ms Bonney seeks that could actually be granted by the Court is that sought in her originating application, namely an order requiring the Registrar to ‘recognise’ her and unspecified other persons (apparently including at least Ms Thorne and Ms McGilvray) as founding members of Watarra. Despite the possibility being foreshadowed in Bonney (No 3), Ms Bonney has at no stage sought for the decision to register Watarra as an ATSI corporation to be quashed, so there is no occasion to consider a drastic remedy of that kind.

106    If I had upheld any of the grounds of review, I would not have granted the relief that Ms Bonney does seek. For reasons already explained, it is no part of the Registrar’s statutory functions to ‘recognise’ any particular persons as members of an ATSI corporation, at the time of registration or at any other time. So while conceivably, relief of that kind would be available under s 16(1)(b) of the ADJR Act (referring the matter to the Registrar for reconsideration) or s 16(1)(d) of the Act (in essence, injunctive relief), it would not be appropriate to grant it here. It would go beyond anything the Registrar could be expected to do, assuming full compliance with her statutory obligations and full performance of her statutory functions. I conceive of this, not as a matter of discretion, but as a more fundamental matter of whether the relief follows from the grounds that have (hypothetically) been established.

107    That said, relief under the ADJR Act is discretionary, and it is not appropriate to grant relief that has no utility: Dunstan v Morgan [2024] FCA 982 at [19] (Kennett J). In this case, Ms Bonney became a member of Watarra within a relatively short period of time after its incorporation. She has pointed to nothing that happened in that short period which has had any material effect on her rights and interests.

108    In Bonney (No 3) at [12]-[16] I considered, on a preliminary basis, whether concerns arising out of Ms Bonney’s status and interests as an Aboriginal person might have been engaged by the Registrar’s decision. But the analysis of the statutory framework set out above establishes that the decision said nothing about who was, or was not, a member of Watarra at incorporation. Properly understood, the Registrar’s exercise of statutory power under the CATSI Act had no impact on Ms Bonney, beyond the brief deferral of the rights that come with being a member of the corporation. I do not discount the possibility that events at the meeting or surrounding Watarra’s incorporation may have affected Ms Bonney in other ways, but if so, that is not something susceptible to redress by an application for judicial review.

109    The relief proposed, or any relief, would have no real utility. So I would have refused it even if I had upheld one or more of the grounds of review.

110    That makes it unnecessary to consider further submissions, advanced by each of the respondents, that the Registrar’s decision should not be set aside because of the prejudice that would cause to Watarra and third parties. Ms Bonney did not pursue such relief in any event.

Conclusion

111    Ms Bonney has not established any of her grounds of review and her application will be dismissed.

112    Each of Watarra and the Registrar seek their costs of the proceeding, and there is no apparent reason why costs should not follow the event. Orders for the successful respondents to have their costs will be made.

Associate:

Dated:    25 September 2026