Evans v Native Title Registrar

Federal Court of Australia|2004-08-19|Before: Nicholson J

REASONS FOR JUDGMENT 1 This is an application brought by the applicants in reliance on s 190D(2) of the Native Title Act 1993 (Cth) ('the NTA'). It seeks review of a decision made by a delegate ('the delegate') of the first respondent ('the Registrar') on 29 August 2003. The decision was that an application by the applicants for determination of native title be not accepted for registration. 2 Prior to bringing the above application, the applicants filed an application for an order of review seeking relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). However, at the commencement of the hearing it was accepted by counsel for the applicants that the ADJR Act application was academic. It follows that it should be dismissed irrespective of whether or not the applicants succeed in relation to the application under s 190D of the NTA. In any event it should be dismissed because consideration of the submissions for the applicant does not establish any error of law, for the reasons that follow. 3 The first respondent agreed to abide by the outcome of the review.

relevant statutory provisions 4 The statutory provisions relevant to this application for review appear in Pt 7 of the NTA which deals with the register of native title claims. Sections 184-189 relate to the content and maintenance of the register. At s 190A, the Act addresses the obligation of the Registrar to consider claims. Section 190A(6) provides that the Registrar must accept a 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). In any other case the Registrar must not accept the claim for registration. 5 The reasons of the delegate the subject of the application for review in this proceeding address, first the matters of a procedural character arising under s 190C and, second the matters going to the merits of the claim arising under s 190B. The delegate found that the only areas of non-compliance, having the consequence that he could not accept the claim for registration, arose in relation to the matters raised by s 190C(4) and s 190C(5). Those sections read: '(4) The Registrar must be satisfied that either of the following is the case: (a) the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or (b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group. (5) If the application has not been certified as mentioned in paragraph (4)(a), the Registrar cannot be satisfied that the condition in subsection (4) has been satisfied unless the application: (a) includes a statement to the effect that the requirement set out in paragraph (4)(b) has been met; and (b) briefly sets out the grounds on which the Registrar should consider that it has been met.' 6 Section 253 provides that unless the contrary intention appears the word 'authorise' in relation to the making of native title determination applications or compensation applications, and dealing with matter arising in relation to such application has the meaning given by s 251B. That section reads: '251B For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.' 7 I agree with submissions for the second respondent ('the State') that this section provides alternative methods of authorisation. It makes a clear distinction between the two methods of authorisation. In respect of each authorisation the way in which it is made must be either in a traditional way or, if there is no such way, an agreed way. In the latter case the statutory requirement is that the agreement be by 'the persons in the native title claim group'. 8 The right of review arises under s 190D, the following provisions of which are presently relevant: '190D (1) If the Registrar does not accept the claim for registration, the Registrar must, as soon as practicable, give the applicant and the Federal Court written notice of his or her decision not to accept the claim, including a statement of the reasons of the decision. . . . (2) If the Registrar gives the applicant a notice under subsection (1), the applicant may apply to the Federal Court for a review of the Registrar's decision not to accept the claim. (3) The Court has jurisdiction to hear and determine an application made to it under subsection (2).'

the delegate's reasons 9 The delegate's reasons commenced by setting out the following background circumstances. 10 The application to the Registrar was dated 7 October 2002. It related to claims in the Goldfields region of Western Australia and is known as the Koara application. The application WC 99/5 is the combination of six applications made under the provisions of the then unamended NTA. The combined application was then amended in the Federal Court on 4 March 1999. On 23 March 1999 the Registrar considered the combined application and found it to comply with the requirements for registration pursuant to s 190A of the NTA. 11 However, on 16 November 1999 Carr J in Western Australia v Native Title Registrar [1999] FCA 1594 set aside the Registrar's decision made on 23 March 1999 and remitted the application for the Registrar's further consideration and determination according to law. Essentially he did so on the ground that where the applicants had provided the Native Title Tribunal ('the Tribunal') with information additional to the application, there was an obligation on the Registrar to accord procedural fairness to parties who may aggrieved by the decision by conveying the substance of the content of the additional material to them and giving the applicants a reasonable opportunity to respond. 12 Following the discharge by the Tribunal of the procedural fairness obligations thus placed upon it, the Registrar by the delegate reconsidered the application. He noted that one of the two named applicants, Mr Ted Coomanoo Evans, was now deceased. In consequence he gave to the Goldfields Land Council ('the Land Council') an extension of time until 30 November 2001 in order to address the authorisation of the application and other issues which might impact upon the application in the light of the death of Mr Ted Coomanoo Evans. The Land Council responded by providing additional information to the delegate on 27 August 2001, 19 October 2001 and 27 November 2001. Such materials included affidavits of Richard Evans, Myrtle Brennan and Luxie Hogarth Redmond sworn 26 November 2001. After provision of additional materials to the State, it responded with a statement that it had no comment to make in relation to them. 13 On 11 January 2002 the Tribunal received information that a number of people within the claim group had concerns that the claim had not been properly authorised. On 15 January 2002 the Tribunal wrote to the Land Council informing them that this issue had arisen. On 5 February 2002 the Land Council requested that the application of the registration test be delayed pending the outcome of a claimant meeting in which the question of authorisation was to be discussed. On 7 May 2002 the Land Council informed the Tribunal that a draft further amended application had been prepared and that a preliminary assessment of the material was sought. The Tribunal informed the Land Council where the application may not meet the conditions of s 190A of the NTA. The Tribunal granted the Land Council until 5 July 2002 to either file a further amended application or to provide a revised draft further amended application for comment. 14 No material was received by the due date, apparently, as a consequence of a misunderstanding. The Land Council had also undertaken to file transcripts of evidence given by the Koara people as part of the Wongatha trial proceedings. 15 As a consequence of the delivery by the High Court of Australia of its decisions in Western Australia v Ward (2002) 213 CLR 1 and Wilson v Anderson (2002) 213 CLR 401 on 8 August 2002, the Tribunal imposed a moratorium on registration testing until the legal assessment and procedural response were completed. On the same date the Land Council informed the Tribunal that it was the intention of the applicants to file a further amended application in the Federal Court. 16 The delegate's reasons set out the information which he had considered in making his decision. 17 The reasons then considered, first, procedural conditions requiring compliance and, second, merits conditions requiring compliance. For reasons which he set out, the delegate reached the view that he was satisfied that the application contained all details of information applicable to the requirements of s 61 and s 62 of the NTA, so that s 190C(2) had been satisfied. The delegate was also satisfied that the application complied with the requirements of s 190C(3). 18 In his reasons the delegate noted that the effect of s 251B was to provide alternative modes of authorisation. He said the effect of the section was that where there was a process of decision-making under the traditional laws and customs that must be followed the applicants were required to be authorised pursuant to that process and only in the event 'there is no such process' does the alternative method of authorisation become applicable. He referred to the discussion of these requirements in Risk v National Native Title Tribunal [2000] FCA 1589 per O'Loughlin J citing Wilcox J in Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637. 19 The delegate noted that the application before him had not been certified pursuant to s 190C(4)(a). Therefore it fell to be considered under s 190C(4)(b). 20 In relation to the question whether the applicants were members of the native title claim group the delegate found he was satisfied by the contents of three affidavits before him. 21 The delegate then turned to the evidence before him relating to the issue of authority. He dealt with what in the course of argument were described as four versions of the claim to authority. 22 The first version was that contained in Sch R of the application which stated: 'The applicants are members of the native title claim group and are 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. In accordance with its laws and customs the native title claim group have nominated the applicants to speak for [Koara country.] Members of the claim group have met and affirmed the applicants' authority to speak on behalf of the claim group and represent them in relation to this application and matters associated with it.' [Words in square brackets omitted in delegate's reasons] He concluded that this appeared to be describing a process pursuant to s 251B(a) as it had made reference to the authorisation being in 'accordance with its laws and customs'. 23 The second version arose from the content of affidavits by the applicants deposing as to their authorities which was expressed as follows: '4. I am authorised by all the persons in the native title claim group to make and deal with the matters arising in relation to the amended application pursuant to a process of decision-making that: (a) under the traditional laws and customs of the persons in the native title claim group must be complied with in relation to authorising things of that kind; and (b) the persons in the native title claim group have also agreed to and adopted in relation to authorising the making of the application and dealing with matters and in relation to doing things of that kind.' Of these statements the delegate said that they appeared to conflate s 251B(a) and s 251B(b), those provisions being phrased in the alternative. Further he said that there was an inconsistency between the affidavits and the statement in Sch R from which the first version of the description was taken. 24 The third version was taken by the delegate from affidavits dated 22 December 1998 by the deceased senior claimant and by his son, Richard Guy Evans. They were in identical terms and both stated as follows: '(d) I (together with other applicants who have sworn similar affidavits) am authorised by all of the persons in the native title claim group to make this amended application and to deal with matters arising in relation to it; and (e) I (and such other authorised applicants) am authorised on the grounds that pursuant to the traditions laws and customs of the native title claim group a process of decision making that must be complied with authorising things of this kind has occurred and been complied with.' 25 Additionally the delegate referred to an affidavit by Luxie Hogarth dated 2 March 1999 filed prior to the time she became an applicant and in which it was relevantly stated: '(2) in accordance with the traditional laws and customs of the Koara people [the senior deceased claimant] and Richard Evans are authorised to make the claim for native title on behalf of the Koara people.' Of these affidavits he said they all clearly attested to and described a traditional process. 26 The reasons continued: 'The senior claimant subsequently died and as a result the claim group held a meeting on 26 November 2001 and at that meeting a resolution was passed stating: "that Richard Evans be authorised to continue to act as the sole applicant on behalf of the Koara people in the Koara native title claim." In a letter from the GLSC dated 27 November 2001 advising of the above it was said that "The resolution was moved by Joan Tucker and was seconded by Hector Brennan. It was carried unanimously by the meeting." There was no mention of a traditional process in that letter but in three identical affidavits, all dated 26 November 2001, by Richard Evans, Luxie Hogarth Redmond and Myrtle Brennan the facts of the resolution, its mover and seconder are set out followed by: "6. The resolution was made after the claim group members had talked about the question, and the decision was made in accordance with our traditional laws and customs about these types of matters"' 27 The reasons then stated that on 11 January 2002 three senior women from the native title claim group approached the delegate to express an ongoing concern with the authorisation of Richard Evans. The concerns were regarded as adverse material relating to the authorisation and were conveyed to the Land Council. A meeting of the claim group was subsequently called on 1 March 2002 to discuss a further amendment by way of the addition of further applicants. Affidavits of the present applicants before the delegate attested (in identical form) that: '"the Koara claimant group held a claimant meeting on 1 March 2002 in Leonora to discuss the question of the registration test of the claim and the authorisation of the applicants. Invitations were sent out for the meeting." (para 2) At the meeting, the following resolution was passed (para 4): "That the following persons are authorised to act as the applicants on behalf of the Koara People in the Koara native title application: Richard Evans, Dawn Evans, Brett Lewis, Geraldine Hogarth Joan Tucker."' The affidavit material also stated that the above resolution was approved by a majority, with no votes against and four abstentions. It stated that the resolution was made after the claim group members 'had talked about the question' and that the decision had been arrived at in accordance with their 'standard protocols and procedures about these types of matters'. There was no explanation given of what those standard protocols and procedures might be. This is a fourth version of the method of authorisation. 28 The delegate also had before him an affidavit of the Manager, Legal and Native Title of the Land Council dated 1 October 2002. There it was stated of the meeting: '"7. The motion for the authorisation of these Applicants was moved, seconded and passed by way of a resolution of the meeting, being a process that was agreed to and adopted by the members of the Koara native title claim group for the purpose and being a process that must be complied with under the Koara people's traditional laws and customs in relation to authorising things of that kind."' Of that statement the delegate said that this referred to a quite different process from that previously used, although it was asserted that it is in accordance with the 'traditional laws and customs'. He said, again, it would seem to be reliant neither wholly on s 251B(a) nor s 251B(b). He said there was no explanation offered which might satisfy the requirement of s 190B(5)(b) as to the apparent change in process, except that the wording of s 190B(5)(b) uses the phrase 'agreed to and adopted by'. He said this was in contrast to the wholly traditional process described when the application was initially made. 29 The reasons continued: 'The affidavit also sets out at paras 3 and 4 of the process adopted to arrange the meeting: · 'written notices for the meetings are usually sent out to claimants' · the GLSC database of names of claimants is used for sending out notices … · the database is regularly updated … and includes the names of additional persons who may be identified through research · in addition … advice … is given by word of mouth. but nowhere did it detail what had actually happened and whether those usual procedures had in fact been followed.' 30 The reasons record that because of the perceived vagueness of the evidence in this latter affidavit a letter was sent by way of preliminary assessment of the application seeking further information concerning the meeting in line with the suggestions in Ward v Northern Territory [2002] FCA 171 at [24]. Although the letter in response (dated 25 August 2003) was received subsequent to the date set for reply, it was considered by the delegate. Of this letter the delegate said: 'Unfortunately that letter was of little assistance. It was once more phrased in terms of "normal procedures", and "standard procedures". Other than to add that notices are also sent to "all persons who have been identified as potentially forming part of the group" and that "families are invited to bring along new persons", it offered no further explanation of the circumstances of the calling of the meeting. The majority of the other enquiries were left unanswered. This seemed only to suggest that non-claimants might attend. I regret that, as a result, I I (sic) find that I am unable to be confident that the meeting was in fact drawn to the attention of at least a significant majority of the group.' The reasoning continued: 'However, Mr de Villiers' letter went on to state that: "At each meeting an attendance register is circulated and apologies are noted. The custom is for families to send representatives by means of internal family procedures. It is for obvious reasons impossible for all potential claimants to attend meetings and hence families tend to discuss internally how they would resolve issues at meetings" and later, after some more observations as to the 'standard practices', it stated: "In regard to authorisation there were 18 votes in favour and none against". I note that this differs from that attested in the Schedule R affidavits which state at paragraph 5 "…..The resolution was approved with a majority, with no votes against and four abstentions." In relation to Mr de Villiers' letter, the observation must be made that there seems to be a further process in place where 'family representatives' attend the meeting. I do not know whether that occurred on this occasion, nor do I know whether this is said to be a traditional practice, but I cannot regard it as being satisfactory authorisation without a great deal of further explanation.' 31 The delegate then stated in his reasons that, as there was considerable mining in the Goldfields region and there were strong economic benefits, he must exercise extra care. 32 He proceeded to his conclusion in the following terms: 'I regret (because the claim is in my view a sound one subject to some technical matters) that I am unable to find that the present applicants have been properly authorised in accordance with the Act. No one reason predominates in that finding but, rather, the sequence of events, the unexplained change away from what I have interpreted as a "traditional" system in use at the outset of the claim, the differing methods used from time to time, the adverse material, the unsigned affidavit, the lack of detailed explanation as to what actually happened in calling and running the meeting and, finally, the fact that only 18-22 people attended the meeting all combine such that I am unable to be satisfied to the requisite standard.' 33 In relation to s 190C(5), the delegate stated that, for the reasons given in relation to s 190C(4)(b), he was not satisfied that the conditions in s 190C(5) had been met. 34 In relation to the requirements of s 190B(2) and merits conditions, the delegate gave his reasons for finding compliance in the relevant respects. The application for review does not address any of that reasoning.

approach to review 35 The manner in which the Court should approach the review pursuant to s 190D(2) was authoritatively considered by the Full Court (Beaumont, Wilcox and Lee JJ) in Western Australia v Strickland (2000) 99 FCR 33. At [64] the Full Court said that the legislation does not specify the nature or extent of the review, or impose any limitation upon the material that may be taken into account so that the jurisdiction conferred by s 190D(2) and s 190D(3) is in the broadest of terms. The Court regarded it as important that such a review was not restricted to consideration and determination of a question of law. It said that the review proceeding enlivens the jurisdiction of the Court in respect of the whole of the matter, citing TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, 180-181 per Gummow J. As the Full Court in Strickland said at [66] the full controversy is placed before the Court; that is, the controversy constituted by issues of fact and law raised between the parties. If a ground of review is established then appropriate orders may be made to do justice between the parties. 36 The Full Court also said (at [67]) that the review may require redetermination of factual issues according to the material then available; it is not restricted to the material before the Registrar. As a consequence the Court may take into account events that have occurred since the decision under review was made. 37 It will be observed that this description of the function of the review is necessarily in contrast to the review which would arise had the application been pursued under the ADJR Act. An application in this latter form would have been one to review the legality of the decision-making process and would not have involved the Court freshly determining issues of fact or substituting its view of the correct or preferable decision for that of the decision‑maker: Northern Territory of Australia v Doepel (2003) 203 ALR 385 at [29] per Mansfield J. 38 It is also to be borne in mind that a significant margin of appreciation should be allowed for the experience and detailed administrative knowledge of the Registrar and his delegates in making largely evaluative judgments on whether applications comply with the statutory conditions of registration: Strickland v Native Title Registrar (1999) 168 ALR 242 at [44] per French J, upheld on appeal in Western Australia v Strickland.

review ground 1(a): error of law in application of s 190C(5) 39 The first ground is that the delegate erred in law in that, in holding he could not be satisfied the applicants had been authorised, he failed to correctly consider and apply the provisions of s 190C(5) given that the applicants had included in Sch R of their application a statement that could satisfy him on that question. It is submitted that the word 'briefly' in s 190C(5)(b) makes it apparent that the legislature was not concerned to require a detailed explanation of the process by which authorisation was obtained: Strickland v Native Title Registrar at [56] - [57] quoted with approval by the Full Court on appeal in Western Australia v Strickland at [77] - [78]. Furthermore, it is submitted that the material from the applicants for the purpose of s 190C(5) was comprehensive, addressing all the issues and not being nearly formulaic. Such material included the affidavits of all applicants and the affidavit of the Manager of the Land Council. In those circumstances, it is said, the insistence by the delegate upon extensive and detailed information concerning the process of authorisation show that he essentially misunderstood how he should approach consideration of the question of authorisation. He is said to have erred in not applying the law on this question in terms as explained in Strickland at first instance and on appeal. 40 The additional material was sought by a letter from the Case Manager dated July 2003. It attached an explanatory note concerning s 190C(4). That note referred to the affidavits from the named applicants and the senior legal officer at the Land Council. After referring to the contents of these affidavits, the note stated that the delegate may not know with reasonable certainty from the affidavits what the correlation of the attendance at either meeting was with the known extent of the claim group. It continued: 'In light of this, the Delegate may require further information in support of the authorisation of the application. This information might be provided in a statement that includes: · The purpose of, and agenda for the meeting of 1 March 2002 where authorisation was apparently given; · Who convened that meeting; · How and to whom notice of the meeting was given; · Who attended the meeting and with what authority; · Who compiled and who verified any attendance or apology list; · Who chaired or controlled the meeting and by what right; · The resolutions passed or decisions made; · Whether those resolutions or decisions were unanimous, and if not, the numbers for or against; and · What the "standard protocols and procedures about these types of matters" are that were followed to arrive at any resolution passed at the authorisation meeting.' That list was a summary of issues raised in Ward v Northern Territory [2002] FCA 171 at [24]. There O'Loughlin J had under consideration the issue of authority raised by s 66B(1)(b). His Honour found that there was insufficient information before him to establish such authorisation or to identify the claim group. He then listed the factors referred to above. Of these he said that it may not be essential that these questions be answered on any formal basis such as in terms of the convening and conducting of a meeting in a commercial atmosphere, but he said the substance of those questions must be addressed. 41 I agree with the submission of the State that the materials before the delegate evidenced a contradiction as to which process of authorisation had been adopted by the native title claim group, as appears from the reasons of the delegate. The response from the applicants to the letter requesting additional information on that issue did not bring clarification. There was therefore a proper foundation for the request for further explanation. 42 In those circumstances it could not rightly be said that the range of issues upon which additional information was sought was inappropriate. The issues were ones that had been identified judicially as relevant to an issue of authorisation. The word 'briefly' in s 190C(5)(b) is to be understood in the particular circumstances and as taking its colour from those circumstances. It was necessary, in the context of conflicting accounts in the evidence, that the statement should place before the delegate information on which the delegate could consider that the authorisation test had been met. The items suggested for explanation were all relevant to that end. 43 In my opinion, in those circumstances there was neither any error of law or fact in the way this issue was addressed by the delegate.

Review ground 1(b): Error of law concerning requirements in s 190C(5) 44 The applicants contend that the delegate erred in law in finding that he could not be satisfied the applicants had included in their native title application the statement to the effect that the requirements set out in s 190C(4)(b) had been met. The applicants say that the delegate failed to consider and determine the terms of the statement included by the applicants in Sch R of their application against s 190C(4)(b). The State agrees that s 190(4)(b) has been complied with by the statement in Sch R and therefore waives any reliance on the conclusion by the delegate to the contrary.

review ground 1(c): error of law in failure to take into account relevant considerations 45 Here it is said that the Registrar failed to take into account the administrative nature of his role, the purpose of the registration test provisions being to preserve rights, and the beneficial construction applicable to the NTA. This is advanced as a ground in the context that the delegate had found that the claim in question 'was a sound one, subject to some technical matters'. The misconstruction of the administrative decision-making role is said to extend to the delegate agitating issues that were not the subject of adverse submission before him; failing to have regard to the amount of material supporting authorisation, that was uncontroverted, before him; and failing to give weight to the otherwise meritorious nature of the claim and the likelihood the uncontroverted material put before him by the applicants was therefore reliable. 46 The Registrar's relevant administrative duty is one which is determined by the provisions of the NTA and particularly ss 190A(6), 190B and 190C. Section 190A(6), referred to above, places a mandatory requirement upon the Registrar to accept the claim for registration if it satisfies all the conditions in s 190B and s 190C. He is therefore required to consider a claim against each of those sections and reach a decision on whether he is satisfied under each of them. If he is not satisfied on every matter under each of them he has no discretion; he is bound under s 190A(6) not to accept the claim for registration. 47 I agree with the submission for the State that it is immaterial to the application of 190A(6) whether or not there was any adverse submission. The Registrar's administrative function is to reach satisfaction on the matters put at issue by s 190B and s 190C. In the submissions before the delegate there was patent ambiguity and he so found. He was not under any administrative obligation to accept the material placed before him by the applicants. That was particularly so where that material was the source of the contradiction and inconsistency. 48 This ground of review does not give rise to any error of fact or law in the approach taken by the delegate to his administrative duties.

Review ground 2: error of law in taking into account irrelevant consideration 49 This ground asserts that the Registrar improperly exercised his power to consider the acceptance of the application for registration under s 190A of the NTA in that he took into account the irrelevant consideration that the area of the application was in the Goldfields region with considerable mining and that he therefore needed to 'exercise extra care' in consideration of the matter. It is claimed this aspect of the reasons seems to have been generated by an email between Tribunal staff members dated 6 November 2002 that appears on the Registrar's file. 50 There is no evidence that the email had the effect claimed. Nor is there any evidence that the great care exercised by the delegate adversely affected the exercise of his discretion. Nothing adverse to the decision-making process arises from the reference by the delegate to the need to approach the decision with caution or from the reason that he gave for that approach.

review ground 3(a): error of law in wrong interpretation of applicants' evidence 51 This ground, which is said to raise an error of law, asserts a misconstruction of the evidence of the applicants when the Registrar held that they had conflated the provisions of s 251B(a) and s 251B(b). The applicants assert that such interpretation was not open on the documents. It is said that insofar as the delegate held, adversely to the applicants, that they must elect a description of the process, he was in error. Reference is made to Daniel v Western Australia (2002) 194 ALR 278 at [14] where French J referred to the difficulties of clearly identifying traditional processes of decision-making in the authorisation process. It is submitted that both types of process may in fact be playing a part and there is no reason why the applicants could not state that both processes are applicable. It is submitted that if the Registrar takes the view that a required process does not fit in with a fair description of a 'traditional' process then the alternative limb can be considered. 52 In Daniel at [14] French J said: '[14] … In so far as s 251B relies upon decision-making under traditional law and custom, it seems to allow for recognition of a process applicable by way of analogy to decision-making relating to the institution of native title proceedings under the Act. For that is hardly a matter likely to have been contemplated explicitly by traditional law and custom. It may be that it is sufficient for the purposes of par (a) of s 251B to identify traditional decision-making applicable to the exercise of responsibility for, or authority over the land and waters in question. Nevertheless it should not be surprising if there is some difficulty in applying traditional decision-making processes, albeit by closest analogy, to the conferring of the kind of authority contemplated by s 251B.' That statement is not one which provides any support for conflating the two processes provided for by the legislature in s 251B of the NTA. 53 It is necessary, if the Registrar is to be satisfied under s 190A(6), that the information placed by claimants before him demonstrate compliance with either of the processes for which the legislature has allowed. That information may, in cases where the facts require, show that traditional processes have led to the adoption of a certain method by which authorisation has been given. However, that was not the effect of the information here. It is for the Registrar to decide whether or not he is satisfied on the issue of authorisation on the information brought to him. If he is not satisfied, he may either conclude accordingly or seek further information. Here the delegate chose the latter course. The explanation provided, however, did not deal with the specifics of the matter. 54 I do not accept that the Registrar misconstrued the information before him by wrongly regarding it as not clear on which of the methods of authorisation was being addressed. This was a case where there was genuine inconsistency in the information provided. Nor do I consider the application of the alternative method of authorisation was precluded by him in his approach to that information. There was no error of fact or law in the way contended. 55 The affidavit of Joan Tucker dated 10 November 2003 is now before the Court without objection and brings new light to the decision-making processes here in issue. It is addressed below.

review ground 3(b): error of law in finding of inconsistency 56 This ground asserts that when the Registrar held there was an inconsistency between Sch R of the application and the affidavits referred to by the applicants the finding was in error of law because there was no such inconsistency open on the documents. This is said to be particularly so when the reasons did not elaborate on the nature of the inconsistency. 57 In my view the inconsistency to which the delegate referred is patent from the passages he quoted which are set out above. Schedule R addressed authorisation by a traditional process. The applicant's affidavits attested they had been authorised by the use of a traditional decision-making process as well as a process of decision-making that the person in the native title claim group had agreed to and adopted in relation to the making of the application. 58 No error of law or fact arises under this ground.

review ground 3(c): error of law in no evidence to support findings 59 In this ground it is said that the Registrar made findings that were not open on the material before him. This is said to have occurred when there was an unexplained shift in the information away from a traditional system of authorisation claimed at the outset to differing methods from time to time thereafter. It is submitted that the documents concerned all refer to the use of traditional methods of decision-making. Further, it is said there was reference to a meeting procedure in conjunction with such processes as early as 1996, such references appearing in an affidavit of Richard Evans sworn 15 February 1999. It is said that this relevant material was apparently not considered by the Registrar. 60 There clearly was evidence for the delegate's conclusion that the authorisation processes described latterly in the submissions to the delegate were 'in contrast to the wholly traditional process seen when the application was made'. It is set out in the delegate's reasons and recounted above. Yet another version appears in the affidavit of Richard Evans. This ground does not give rise to any error of law or fact.

REVIEW GROUND 3(d): wrong approach to certain evidence 61 This ground asserts that certain matters considered by the delegate to be adverse to the applicants were not capable of being regarded as adverse to the applicants both in fact and in the context of the task being undertaken by the delegate. 62 The first such matter was the sequence of events. I agree with the State that this was a reference to the successive provision of Sch R, the applicants' affidavits, the history of the authorisation of the applicants, the letter of preliminary assessment and the response to it. It has already been found that the delegate was not in error in not being satisfied by that series of events. 63 The next was the matters referred to in review ground 3(c), the unexplained changes in approach. This has already been considered above. 64 The third is the concerns expressed to the Registrar by some claimants relating to the alleged authorisation of a previously appointed applicant, Richard Evans. It clearly was capable of being found to be adverse because it was information showing that some members of the claimant group did not regard him as duly authorised. 65 The fourth was the fact that an affidavit had been provided in unsigned form. This likewise was capable of being viewed adversely. However, there is no foundation for the applicants' submission that this factor occasioned the delegate to take an unfavourable view of the whole process. 66 The fifth was the lack of a detailed explanation of the meeting. The sixth was the fact that only 18 - 22 people attended that meeting. Given that an opportunity had been given by the letter of preliminary assessment for specific information to be provided to the delegate on the conduct of the meeting and the nature of the attendance at it, the absence of such in this way was capable of being correctly considered to be an adverse circumstance. 67 The seventh was a combination of these matters such that the Registrar could not be satisfied concerning the question of authorisation. There is nothing improper in the delegate reaching his decision based on a combination of factors. 68 This ground does not therefore raise any error of fact or law.

Review Ground 4: error of law in taking into account irrelevant considerations 69 This relates to the matters raised in review grounds 3(a) to (d) and asserts that as those grounds are not capable of being regarded as adverse to the applicants or are devoid of supporting evidence they are irrelevant matters so that the delegate improperly exercised his power in utilising them in his determination. The reasons dealing with those grounds make apparent that the views of the delegate were based on sufficient supporting evidence and that the considerations were relevant. They demonstrated an insufficiency of grounds upon which the delegate could be satisfied concerning the authorisation of the applicants by the other persons in the native title claim group. There was no error of law or fact in the way alleged.

review grounds 5 and 6: failure to be satisfied 70 Ground 5 asserts that the Registrar should have been satisfied that the applicants were and are authorised to make the application and deal with matters arising in relation to it. Ground 6 asserts that the Registrar should have been satisfied that the applicants have included in their native title application a statement to the effect that the requirement set out in s 190C(4)(b) had been met. In this latter respect it is said that the Court can receive and consider an affidavit of Joan Tucker, sworn 10 November 2003, which further clarifies the authorisation process and an affidavit of the Manager of the Land Council, sworn 11 November 2003 addressing the issue of the unsigned affidavit. 71 The Tucker affidavit explains traditional methods of decision-making and proceedings at a meeting of the Koara claimants on 1 March 2002. It states that these meetings were convened by the Land Council; was a properly convened meeting of the Koara claimants; and had been properly convened and conducted. It thus makes assertions rather than provides evidence from which the asserted facts can be established. It also states that the traditional way of making decision involves 'everyone having the opportunity to have their say at a proper meeting of the group, and then making decisions based on broad agreement'. It is inconsistent with the affidavit of Richard Evans dated 15 February 1999 which stated that only his father had the authority in accordance with Koara laws and customs to speak on behalf of Koara country and to make decisions about it. No explanation is given on whether the father was the only person who had authority to speak for Koara country and make decisions about it during his lifetime and how that authority, after passing to Richard Evans, had become vested in meetings of Koara people, which made decisions such as the authorisation of applicants for native title claims. 72 There is nothing therefore in the Tucker affidavit which can assist in making out either of these two grounds of review, which otherwise have been found not to be tenable.

conclusion 73 For the above reasons I do not consider any of the grounds of review have established any error of law or fact. Accordingly the application for review should be dismissed. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Counsel for the Applicants: Mr PJ Vincent

Solicitor for the Applicants: Goldfields Land and Sea Council

Solicitor for the First Respondent: Corser & Corser

Counsel for the Second Respondent: Mr TA Creewal

Solicitor for the Second Respondent: State Solicitor's Office of Western Australia

Date of Judgment: 19 August 2004

Native Title Act 1993(Cth)ss 190A, 190B, 190C, 190D, 251B, 253

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)

Cited By (2)