Daniels for the Ngaluma People & Monadee for the Injibandi People v State of Western Australia

First applicants' response 10 For the first applicants it is said that par 62(2)(a)(ii) is sufficiently satisfied by the adoption of a class or formula approach such as the first applicants have taken in the description given in the second amendment application. 11 Furthermore it is submitted such approach is validated by the practice presently adopted in the Native Title Tribunal. Reference is made by way of example to a registration test decision Gnaala Karla Booja. There it was said: "The applicants exclude some areas from the application under three paragraphs (subject to the effects of the saving provisions of s47, 47A and 47B in paragraph 4); 1. Areas affected by Category A past acts (s229) and Category A intermediate period acts (s232B) (folio 50 Schedule B, Attachment B Internal boundaries par 1, RT file). I find this is a clear statement of the particular lands and waters that are to be excluded. 2. Any areas in relation to which a previous exclusive possession act (s23B) was done, either attributable to the Commonwealth or the State of Western Australia when it has made provision for that under s23E NTA (folio 50 Schedule B, Attachment B Internal boundaries par 2, RT file). It is noted that this is an ambulatory definition of the area to be excluded; that is, further areas will be excluded when, and if, the State of Western Australia enacts its laws under s23E. I nonetheless find this is clear statement of the particular lands and waters that are to be excluded, and that there is sufficient certainty as to what lands will be brought into the definition of the excluded tenures, even if that time is at present unknown. 3. Any areas in relation to which native title rights and interests have otherwise been extinguished, including; an act authorised by legislation which demonstrates the exercise of permanent adverse dominion in relation to native title, and, actual use by the holder of a tenure (other than native title) which is permanently inconsistent with the continued existence of native title (folio 50 Schedule B, Attachment B, Internal boundaries par 3, RT file). I find that this is a clear statement of the particular lands and waters to be excluded, notwithstanding that a significant inquiry will be required to establish each parcel falling within this definition." Additionally it is submitted for the first applicants that the appropriateness of this approach is seen when it is appreciated that if the approach was that urged on behalf of the first respondents, a substantial additional administrative burden would be cast upon claimants. 12 In support of this it is contended for the first applicants that claimants can not be called upon to decide (rightly or wrongly) whether a particular document satisfies the complexities of the Act so that it creates a valid exclusion. Those are matters which it is said cannot be known until the resolution of the application. Furthermore, such decisions would be required to be made over the entire tenure history made available by the first respondents, covering a period of approximately 120 years.

First respondents' reply 13 For the first respondents it has been made clear since the hearing that the first respondents have lodged applications for an Order of Review under the Administrative Decisions (Judicial Review) Act in respect of three decisions of delegates of the Native Title Registrar accepting claims for registration, being applications WAG 6004 of 1999 (in respect of the Gnaala Karla Booja claim) WAG 6005 of 1999 and WAG 6006 of 1999. Each application includes a ground that the delegate erred in law in finding that he or she was satisfied that the information and maps contained in the native title determination applications are sufficient for it to be said with reasonable certainty whether native title rights are claimed in relation to particular land or waters when there was no evidence of other material to justify the making of the decision. It is submitted that the Act requires more than simply a description of the outer boundaries of the area without any definition of internal boundaries by way of identification of areas not covered by the application. 14 Additionally it is submitted that what the Act requires by par 62(2)(a)(ii) to be excluded are those matters where validity is not in issue and it is clear that they should be excluded. 15 So far as the administrative inconvenience or lack of consistency with procedures adopted by the Tribunal is concerned, it is submitted that the procedures mandated by the Act cannot be denied. It is a question of what the Act requires. In the submissions for the first respondents where the Act excludes an area and the validity of that exclusion is not in question it must be identified. It is accepted for the first respondents that if there is uncertainty as to the validity then the area should remain included in the application. 16 Other respondents generally supported these submissions by the first respondents. In particular one respondent submitted that unless the view espoused on behalf of the first respondents was accepted the onus of proving that an area did not fall within the claimant application would be placed upon the respondents.

Statutory provisions 17 I accept the submission for the first respondents that the matter is to be governed by an understanding of what procedures it is that the Act requires. It is not contended by any party that the issues raised are assisted in their consideration by reference to the transitional provisions in the Act. It is a question of interpreting the statutory provisions. I have regard to the following:- 18 (1) Section 62 addresses the requirements of "a claimant application". That is defined by s 253 to mean "a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, include such an application that has been amended". 19 Relevantly "native title claim group" means "in relation to a claim in an application for a determination of native title made to the Federal Court - the native claim group mentioned in relation to the application in the table in subsection 61(1)." 20 (2) Section 61 appears as part of Div 1 which addresses "applications to the Federal Court: Native Title and Compensation". It authorises applications to be made to the Federal Court and specifies the persons who may make each of those applications. 21 (3) Section 61A sets restrictions on the making of certain applications. It does so in the following terms: "(1) A native title determination application must not be made in relation to an area for which there is an approved determination of native title. (2) If: (a) a previous exclusive possession act (see section 23B) was done in relation to an area; and (b) either: (i) the act was an act attributable to the Commonwealth; or (ii) the act was attributable to a State or Territory and a law of the State or Territory has made provisions as mentioned in section 23E in relation to the act; a claimant application must not be made that covers any of the area. (3) If: (a) a previous non-exclusive possession act (see section 23F) was done in relation to an area; and (b) either: (i) the act was an act attributable to the Commonwealth; or (ii) the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23I in relation to the act; a claimant application must not be made in which any of the native title rights and interests claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others. (4) However, subsection (2) or (3) does not apply to an application if: (a) the only previous exclusive possession act or previous non‑exclusive possession act concerned was one who extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made; and (b) the application states that section 47, 47A or 47B, as the case may be, applies to it." 22 Section 23B - referred to in s 61A(2)(a)- defines a "previous exclusion possession act" as one which exists if: "(a) it is valid (including because of Division 2 or 2A of Part 2); and Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2. (b) it took place on or before 23 December 1996; and (c) it consists of the grant or vesting of any of the following: (i) a Scheduled interest (see section 249C); (ii) a freehold estate; (iii) a commercial lease that is neither an agricultural lease nor a pastoral lease; (iv) an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A); (v) a residential lease; (vi) a community purposes lease (see section 249A); (vii) what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to '1 January 1994' were instead a reference to '24 December 1996'; (viii) any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters." 23 Section 23F - referred to in s 61A(3)(a) - defines a "previous non‑exclusive possession act" as being such an act if: "(a) it is valid (including because of Division 2 or 2A of Part 2); and Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2. (b) it takes place on or before 23 December 1996; and (c) it consists of the grant of a non-exclusive agricultural lease (see section 247B) or a non-exclusive pastoral lease (see section 248B)." Each of the definitions quoted from s 23B and s 23F is subject to other provisions relating to exclusions and further variation but it is sufficient that reference be made only to those portions to which attention is presently drawn. 24 It will be noted that an act is such not only if it is in the form of one of the identified interests but also if it is "valid". The notion of validity is therefore, in the case of the two definitions cited, an integral part of an act qualifying as of the requisite type. 25 (4) The effect of s 61A(4) is that in the circumstances specified in ss 47, 47A or 47B the extinguishment of native title rights and interests may be required to be disregarded in relation to a previous exclusion possession act or previous non‑exclusion possession act. Again judgments are required in relation to the application of those sections on issues which are the principal issues arising in the application. 26 (5) The primary requirement for the provision of details pursuant to s 62(2) flows from s 62(1)(b). In its context it requires as follows: "(1) A claimant application (see section 253): (a) must be accompanied by an affidavit sworn by the applicant: (i) that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and (ii) that the applicant believes that none of the area covered by the application is also covered by an entry in the National Native Title Register; and (iii) that the applicant believes that all of the statements made in the application are true; and (iv) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and (v) stating the basis on which the applicant is authorised as mentioned in subparagraph (iv); and (b) must contain the details specified in subsection (2); and (c) may contain details of: (i) if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application-that traditional physical connection; or (ii) if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application-the circumstances in which the access was prevented." The following observations may be made on this subsection: (a) Paragraph 62(1)(a)(i) is significant in that it requires the applicant to positively swear that native title rights and interests have not been extinguished "in relation to any part of the area covered by the application". That is strongly supportive of the fact that an application must not include any areas in relation to which it does not believe that native title rights and interests can be claimed, eg those matters covered by s 61A. (b) Paragraph 62(1)(a)(ii) supports this understanding because it parallels the provisions of s 61A(1). (c) Paragraph 62(1)(b) mandates by the use of the word "must" that the claimant application contain "the details" which are "specified in subs (2)". The approach taken by the legislature to subs (2) is therefore that it requires "details". (d) The approach of requiring "details" is furthered in par 62(1)(c). 27 (6) The primary requirement in issue for interpretation here is that which appears in s 62(2) which reads: "(2) For the purposes of paragraph (1)(b), the details required are as follows: (a) information, whether by physical description or otherwise, that enables the boundaries of: (i) the area covered by the application; and (ii) any areas within those boundaries that are not covered by the application; to be identified; (b) a map showing the boundaries of the area mentioned in subparagraph (a)(i); (c) details and results of all searches carried out to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application; (d) a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law; (e) a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that: (i) the native title claim group have, and the predecessors of those persons had, an association with the area; and (ii) there exist traditional laws and customs that give rise to the claimed native title; and (iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs; (f) if the native title claim group currently carry on any activities in relation to the land or waters-details of those activities; (g) details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title; (h) details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area." Observations may be made on this subsection, namely: (a) Paragraph 62(2)(a)(ii) is quite clear in what it requires to be identified - namely "any areas within those boundaries that are not covered by the application". (b) Paragraph 62(2)(d) emphasises the detail required in the claimant application in relation to the interests there identified by the use of the words "but not merely consisting of a statement etc". However, no such qualification exists in par 62(2)(a)(ii). (c) A requirement for "details" is pursued in other paragraphs: see ss 62(2)(f),(g) and (h). 28 (7) Section 84C provides: "(1) If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application. Note: The main application may still be amended even after a strike-out application is filed. (2) The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

(3) The Registrar of the Court must advise the Native Title Registrar of the making of any application under subsection (1) and of the outcome of the application. (4) This section does not prevent the making of any other application to strike out the main application."

Observations may be made in relation to this provision as follows: (a) A high premium is placed by subs 84C(1) on non‑compliance with either s 61, 61A or s 62 by the provision that a party may apply to strike out the application for such alleged non-compliance. (b) The high premium is emphasised by the provision that the Court "must", before any further proceedings take place in relation to the main application, consider the strike out application: s 84C(2). 29 (8) In relation to the requirements in s190A(6) for application of the registration test to an application, s190B(2) provides : "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." This has the consequence that the Registrar must impose a "reasonable certainty" test in relation to the application of s 62(2)(a) with the other provisions of the Act. That is important to bear in mind in construing consistently the provisions of s 62(2)(a). There are reasons why this should be so. Firstly, at the time an application is filed and at the time the registration test is applied to it applicants would be unlikely to be in possession of tenure information. Secondly, issues of validity in respect of interests may be incapable of concession until the native title determination decides relevant issues. Thirdly, the Act would not operate consistently if the reasonable certainty test was met under s 190B(2) but the application nevertheless attracted a s 84C strike out application because a higher test was applicable under s 62(2) itself. Statutory scheme for identifying exclusions 30 There is an evident difficulty in reconciling the requirements of the Act for detail in s 62, the registration test in s 190B and the state of knowledge of the parties at different stages of the application. In my view it nevertheless follows the foregoing provisions are intended to operate as follows:

31 (1) Parliament has made clear that s 62 requires claimant applications to be approached with attention to "detail". This requires, among other things, that such applications must, in compliance with par 62(2)(a)(i) and (ii), contain information identifying "the area covered by the application" and "any areas within those boundaries that are not covered by the application". 32 (2) These requirements are to be applied to the state of knowledge of an applicant as it could be expected to be at the time the application or amendment to an application is made. Consequently a class or formula approach could satisfy the requirements of the paragraphs where it was the appropriate specification of detail in those circumstances. For example, at the time of an initial application when the applicants had no tenure information it may be a satisfactory compliance with the statutory requirement. A description of a class or formula character of an area of exclusion such as "areas affected by valid category A Past Acts" may be the fullest description that an applicant can give at the time of an application or application for amendment of an application. It is capable in the light of a subsequent determination of the nature and validity of those Acts of resulting in satisfaction of the legislatively prescribed criteria in s 62(2)(a). Whether that would be so on a later application for amendment when tenure information is available would depend on considerations such as those referred to in the following paragraphs. 33 (3) Paragraph 62(2)(a)(ii) requires applicants to turn their mind to the issue of which areas are not covered by the application. In identifying such areas it will necessarily fall to the claimants to form a view on whether an instrument is of a type which would give rise to a grant or vesting of an interest falling within the description of s 61A(2)(ii) or s 61A(2)(iii) and hence of s 23B or s 23F. This follows from the requirement in s62(1)(b) for the applicant to swear as to non-extinguishment of native title on the part of the area covered by the application. 34 (4) Where on the state of knowledge of tenure information applicants identify limited parcels of land within the external boundaries which are not claimed - as in the maps in the second amended application - they would be required to identify those excluded areas. 35 (5) Where the claimants are of the view that the grant or vesting of interests otherwise falling within par 62(2)(a)(ii) because s 61A applies to exclude them from the application are valid interests, they would be bound to identify the areas covered by those interests as areas within the claimed boundaries that are not covered by the application. 36 (6) Where validity of an interest over an area is to be contested in the determination of the application, par 62(2)(a)(ii) must nevertheless require identification of the areas under s 61A excluded from the application in the event of validity being established. If that were not the case a strike out application could be brought under s 84C of the Act in respect of alleged non-compliance with s 61A. At the minimum a class or formula description of such exclusions dependent on determination of validity would be required. At the same time a description of those areas would be required to be included in the area covered by the application under par 62(2)(a)(i) on the ground validity was contested. 37 (7) If an applicant chose to use a class or formula description, he or she could only do so in the knowledge that he or she could be called upon to answer a strike out application pursuant to s 84C of the Act with consequent impact on the progress of the application. That is, a class or formula description of the type proposed here would only be appropriate where the uncertainty of validity (for example ) was clearly arguable. However, a party bringing an application under s 84C would need to have in mind that absence of an identification of excluded areas other than by class or formula description, if defensible for reasons such as those in (6) above, would not mean the Act had not been complied with. It would mean the non‑excluded area was subject to the claim. 38 (8) All of the above is supported by the apparent recognition in the Act of the need to give persons holding interests certainty as to whether their interest is subject of a claim. The class or formula approach proposed by the applicants to definition of exclusion does, if otherwise appropriate, give certainty for respondent interest holders in that they know their interest is subject to claim unless specifically excluded. As recognised above, despite s 61A(2) and (3) requiring that certain areas not be claimed, the determination of whether particular interests meet the definitions referred to in that section will often have to await the determination of the application.

Conclusion 39 It follows that the objection raised by the first respondents to the second amended application will not necessarily of itself result in the first applicants' motion being refused. That is, whether a class or formula description satisfies the Act requires consideration by the Court in the light of evidence of consideration given to the relevant issues by the first applicants and how feasible it is that greater certainty in detail can be provided consistently with the other requirements of the Act. 40 The first applicants description of areas contained within the claim boundaries not covered by the applications includes in the first part of the description maps identifying grouped parcels of land not covered by the applications. The remainder of that portion of the second amendment application relies on class or formula descriptions. 41 I consider that the second amendment application should be stood over to allow the first applicants an opportunity to consider these reasons and to determine to what extent the class or formula descriptions meet the requirements of the Act and whether or not the areas excluded cannot be defined in more detail because of undetermined issues of validity or other issues. That is, those applicants should have the opportunity to consider whether they wish to maintain the second amended application in its present form knowing the statutory consequences of doing so and the need to be able to support the appropriateness of those descriptions as a compliance with par 62(2)(a)(ii) of the Act in the event of an application under s 84C of the Act. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.

Mr M Barker QC with Ms A Murphy Counsel for the First Applicants:

Solicitor for the First Applicants: Aboriginal Legal Service of WA (Inc.)

Counsel for the Second Applicants: Mr E Ng

Solicitor for the Second Applicants: McDonald Rudder

Counsel for the Third Applicants: Mr J Kitto

Solicitor for the Third Applicants: Kitto & Kitto

Counsel for Respondent Group 1: Mr K M Pettit with Mr S Wright

Solicitor for Respondent Group 1: State of Western Australia

Counsel for Respondent Group 2A: Mr J B Allanson

Solicitor for Respondent Group 2A Australian Government Solicitor

Counsel for Respondent Group 5: Mr E Fethers

Solicitor for Respondent Group 5: Jackson McDonald

Counsel for Respondent Groups 6, 7 & 11: Mr M T McKenna

Solicitor for Respondent Groups 6, 7 & 11: Hunt & Humphry

Counsel for Respondent Groups 8 & 12: Mr C P Stevenson

Solicitor for Respondent Groups 8 & 12: Mallesons Stephen Jaques

Counsel for Respondent Groups 9 & 10: Mr S King

Solicitor for Respondent Groups 9 & 10 Jackson McDonald

Counsel for Respondent Group 14: Mr R Butler

Solicitor for Respondent Group 14: None on Record

Date of Hearing: 6 May 1999

Date of Judgment: 21 May 1999