Donnelly for The Wahlabul People v Registrar National Native Title Tribunal

REASONS FOR JUDGMENT 1 On 29 July 1997 an application for a determination of native title under the Native Title Act 1993 (Cth) was lodged with the Native Title Registrar. On the same day the application was entered onto the Register of Native Title Claims. 2 The 1993 Act was significantly amended by the Native Title Amendment Act 1998 (Cth) which largely came into effect on 30 September 1998 ("the New Act"). Prior to the 1998 amendments, registration of a native title claim was a relatively straight forward matter, and was often effected, as it was in the present case, on the day on which the application was made: cf North Ganalanja Aboriginal Corporation v Queensland (1995-1996) 185 CLR 595; Strickland & Nudding on behalf of the Maduwongga People v Native Title Registrar [1999] FCA 1089. 3 The 1998 amendments introduced a more strenuous registration test. Section 190A(6) provides: (6) The Registrar must accept the claim for registration if the claim satisfies all of the conditions in: (a) section 190B [which deals mainly with the merits of the claims]; and (b) section 190C [which deals with procedural and other matters]. In any other case the Registrar must not accept the claim for registration."

4 Schedule 5 to the 1998 amending Act contains application and transitional provisions in relation to amendments made by the Act about native title determination applications. The application is taken to have been made to the Federal Court (Part 3) and the Registrar must consider the claim under s 190A of the New Act as soon as reasonably practicable (Part 4 cl 11(5)). Thus, although an entry recording details of the claim was on the Register of Native Title Claims at the commencement of the New Act, the registration test introduced by the New Act is nonetheless to be applied to the claim. 5 Part 4 cl 11(9) provides that if the claim does not satisfy all of the conditions in ss 190B and 190C of the New Act, the Registrar, must remove details of the claim from the Register and give written notice as required by s 190D(1) (emphasis added). 6 The registration test is not a screening mechanism for access to the Federal Court. A claim which is not registered may proceed to determination in the Court. But when a claim is on the Register the applicants are afforded significant procedural rights, including the right to be consulted upon, or to comment, on specific classes of future acts, and the right to negotiate over the grant of mining tenements or compulsory acquisition of the land. Given those statutory benefits, the purpose of the registration test is to ensure that only those claims with merit are registered. 7 Section 64 of the New Act is concerned with amendment of applications. If an application is amended the Registrar of the Federal Court must give a copy of the amended native title application to the Native Title Registrar. Section 190(3) provides that if the Registrar is given a copy of an amended application, the Registrar must: (a) if the claim is accepted for registration under s 190A - amend the Register to reflect the amendment; or (b) if the claim is not accepted for registration under s 190A - amend the Register to remove any entry relating to the claim. 8 The present application was amended on 10 December 1999. After granting a number of extensions of time, the delegate considered the application in its amended form against each of the conditions in s 190B and s 190C of the New Act, and decided that the application would not be accepted for registration pursuant to s 190A of the New Act. 9 The Registrar was thus required either by cl 11(9) of Part 4 of Schedule 5 of the 1998 amending Act, or by s 190(3)(b) of the New Act to remove any entry relating to the claims from the Register. It may be assumed that the Registrar has complied with his statutory obligation in this respect. 10 On 12 July 2000 application was made for an order for review of the Registrar's decision. After some initial confusion, the applicant confirmed that the application was for a review of the Registrar's decision under s 190D(2) of the New Act, rather than an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth). 11 By motion filed on 1 September 2000, as modified in the course of argument, the applicant seeks