Martin v Native Title Registrar

Federal Court of Australia|2001-01-19|Before: French J

History of Proceedings 1 On 26 August 1997, Joan Margaret Martin and three others who designated themselves as the "Widi Mob", lodged with the Native Title Registrar a native title determination application. Details of that application were placed on the Register of Native Title Claims on the same day, pursuant to the provisions of the Native Title Act 1993 (Cth) as it then stood. By virtue of the Native Title Amendment Act 1998 all native title determination applications commenced on or after 30 September 1998 were to be instituted in the Federal Court. Native title applications which had been lodged with the Native Title Registrar under the Act as it stood before the amendments and which had not been referred to the Federal Court under s 74 of the Act, became proceedings in the Federal Court by operation of transitional provisions. 2 New applications lodged under the amended Act after 30 September 1998 would not be placed on the Register of Native Title Claims and thus attract the benefits of the right to negotiate regime, in relation to certain classes of future act, unless they satisfied the conditions in ss 190B and 190C of the Act (s 190A(6)). That is to say, new claims had to pass a registration test not previously applicable before being placed on the Register of Native Title Claims. Claims lodged prior to 30 September 1998 were also to be subject to the registration test in certain circumstances. One of those circumstances would arise if, after 30 September 1998, the relevant State government issued a notice under s 29 of the Act of its intention to do a future act to which the right to negotiate applied. So if, for example, a new s 29 notice relating to the proposed grant of a mining tenement were issued after 30 September 1998, the right to negotiate would only extend to claimants under pre-existing native title determination applications where they passed the registration test. 3 A s 29 notice affecting the area covered by the native title determination application lodged by the Widi Mob was published on 14 October 1998. A motion for leave to amend the application was filed in this Court with the proposed amended application on 5 February 1999 and was listed for hearing on 24 February 1999. In the meantime an officer of the Tribunal wrote to Mrs Martin's legal representatives indicating that the application would be considered as soon as reasonably practicable. A number of issues relating to the application and its compliance with the requirements of the registration test were raised in that letter. On 24 February, the District Registrar of the Federal Court made an order amending the native title determination application subject to certain changes which were to be incorporated in a fresh version of the amended application which was eventually filed on 4 March 1999. On 4 May 1999, a delegate of the Native Title Registrar decided that the application was not accepted for registration pursuant to s 190A of the Act. It is to be noted that the amended applications filed on 5 February and 4 March each named only Mrs Martin as the applicant. In each case the application was said to be brought on behalf of thirty two named persons and their biological descendants. 4 On 28 May 1999, Mrs Martin filed an application for an order of review of the delegate's decision. That application was expressed to be made under the provisions of the Administrative Decisions (Judicial Review) Act 1977. After various interlocutory steps were taken a minute of a proposed amended application for review was filed on 31 December 1999. On 11 February 2000, the State of Western Australia was joined as a second respondent to these proceedings and the application amended in accordance with the minute filed on 31 December 1999. It was adjourned to a date to be fixed. At that time the hearing by the Full Court of an appeal from my decision in Strickland v Native Title Registrar (1999) 168 ALR 242 was pending. That case raised issues potentially relevant to those raised in the present application. The parties were therefore, on 11 February, given liberty within fourteen days of the decision of the Full Court in the Strickland case to submit additional written submissions and to apply for a hearing date for further oral submissions if desired. In the event the Full Court gave its decision in Western Australia v Strickland (2000) 99 FCR 33 on 18 May 2000. Further written submissions were lodged by the parties thereafter. No party sought to make further oral submissions.

Grounds for Review of the Delegate's Decision 5 The amended application for review of the delegate's decision purports to rely on both the review provisions of the Native Title Act 1993 and the Administrative Decisions (Judicial Review) Act 1977. The grounds of the application are as follows: "(1) The Delegate erred in law in concluding that the Affidavit accompanying the Application did not comply with s 62(1)(a)(iv) and (v) of the Native Title Act 1993 (Cth). Particulars (a) The Respondent misdirected himself in law as to the legal principles of construction of documents which required him to construe the document so as to avoid a capricious result, being the conclusion that the applicant was not stating that she was authorised or the basis upon which she was authorised as required by the Native Title Act 1993 (Cth). (b) The Respondent misdirected himself at law as to the principles of construction of documents which enabled him to take account of extrinsic materials in relation to their construction in order to resolve an ambiguity as to whether it was the applicant who was authorised as required by the Native Title Act 1993 (Cth), and he consequently failed to take account of such materials which were available. (2) The Delegate misdirected himself at law in concluding that the evidence was insufficient for him to be satisfied that the Applicant was authorised to make the application by the native title claim group, in accordance with s 190C(4)(b) of the Native Title Act 1993 (Cth). Particulars (a) The Delegate misdirected himself as to the meaning of the word "satisfied", as used in S190C(4) and what evidence was capable of constituting sufficient evidence for him to be satisfied for the purposes of that provision. (b) The Delegate misdirected himself as to the burden of proof which applied to the Applicant by requiring that the Applicant exclude all competing inferences, including a competing inference not supported by any evidence, being that she was not authorised in accordance with the Native Title Act 1993 (Cth). (3) The Delegate misdirected himself at law in concluding that the evidence was insufficient for him to be satisfied that the members of the native title claim group have an association with the area claimed, in accordance with s 190B(5)(a) of the Native Title Act 1993 (Cth). Particulars (a) The Delegate misdirected himself as to the meaning of the word "satisfied", as used in S 190B(5) and what evidence was capable of constituting sufficient evidence for him to be satisfied for the purposes of s 190B(5)(a). (b) The Delegate misdirected himself as to what evidence was capable of being probative of the facts about which he was required to be satisfied by dismissing as of no probative value evidence which he classified as "assertion". (c) The Delegate misdirected himself as to the meaning of the words "association with the area", used in s 190B(5)(a), by requiring that they necessarily mean an association with "all of the area of the land and waters" claimed, "the entirety of the land and waters claimed" or an association which "broadly covered" the area of the claim. (d) The Delegate misdirected himself as to the meaning of the word "association" in s 190B(5)(a) by limiting the meaning of the concept of association to physical presence. (e) The Delegate misdirected himself as to the burden of proof which applied to the Applicant by requiring that the Applicant exclude all competing inferences, including a competing inference that the native title claim group did not have an association with the claim area because they did not present evidence of physical attendance in parts of the claim area identified by the Delegate. (f) The Delegate misdirected himself as to the evidence which was required to satisfy the burden of proof imposed upon the Applicant by s 190B(5)(a) by requiring that the applicant present evidence of physical presence of members of the native title claim group in each of the parts of the claim area which the Delegate identified. (4) The Delegate misdirected himself in concluding that the evidence was insufficient for him to be satisfied that there do exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests, as required by s 190B(5)(b) and (c) and (6). Particulars (a) The Delegate misdirected himself as to the meaning of the word "satisfied", as used in s 190B(5) and what evidence was capable of constituting sufficient evidence for him to be satisfied for the purposes of s 190B(5)(b). (b) The Delegate misdirected himself as to what evidence was capable of being probative of the facts about which he was required to be satisfied by dismissing as of no probative value evidence which he classified as "assertion". (c) The Delegate misdirected himself as to the facts as to which he was to be satisfied for the purposes of s 190B(5)(b), including a misdirection that he was required to be satisfied that the native title claim group was the 'Widi people' or the 'entire Widi group' and not a sub-group of the 'Widi group'. (d) The Delegate misdirected himself as to the burden of proof which applied to the Applicant by requiring that the Applicant exclude all competing inferences, including - (i) irrelevant competing inferences that the native title claim group was not the 'Widi people', the 'entire Widi group' or a 'community of people'; and (ii) a speculative inference, insufficiently based in evidence, that the traditions and customs of the claim group may not relate to the claim area but to an area outside the claim area. (5) The decision was an improper exercise of the power conferred on the Respondent by the Native Title Act 1993 (Cth) in that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power. Particulars (a) No reasonable person could have concluded from the affidavit accompanying the claimant application any thing other than that the applicant is authorised to make the claimant application and deal with matters arising in relation to it. (b) No reasonable person could have concluded other than that the affidavit accompanying the claimant application stated the basis upon which the applicant is so authorised. (c) No reasonable person could have concluded other than that the native title claim group have an association with the area of the claim. (d) No reasonable person could have concluded other than that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests in relation to the area of the claim."

The Delegate's Decision 6 The delegate treated the amended application as comprising two documents namely the proposed amended application filed in the Federal Court on 5 February 1999 and the re-engrossed application created pursuant to the Court's order of 24 February and filed in Court on 4 March 1999. It is not clear from the reasons why the two documents had to be read together as the second replicates the first, subject to the changes directed in the Registrar's order of 24 February. The delegate considered that the application failed to satisfy certain conditions of registration. His conclusions in relation to those conditions are the subject of this challenge to his decision. It is convenient to deal with each condition and the challenge to it in the order in which it is raised in the application for review.

The Supporting Affidavit - Evidence of Authorisation 7 The first condition which it was said the application failed, was the condition in s 190C(2) that: "190C(2) The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62." The delegate found that the application did not comply with the requirement of s 62(1)(a)(iv) that it be accompanied by an affidavit sworn by the applicant: "(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; …" He also found that the affidavit accompanying the application did not comply with the requirement in s 62(1)(a)(v) that it be an affidavit: "(v) stating the basis on which the applicant is authorised as mentioned in subparagraph (iv);…" The terms of the affidavit sworn by Mrs Martin on 4 March 1999 in support of the amended application filed on that date were as follows: "(a) that I believe that the native title rights and interests claimed by the native title group have not been extinguished in relation to any part of the area covered by the application; and (b) that I believe that none of the area covered by the application is also covered by an entry in the National Native Title Register; and (c) that I believe that all of the statements made in the application are true; and (d) that I am 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 (e) I am so authorised by their descendants in accordance with a traditional custom acknowledged by the members of the native title claim group of younger generations respecting elder generations and elder generations having authority to make decisions and deal with matters relating to traditional interests in land and waters on their own behalf and on behalf of younger generations." The words "I am" in pars (d) and (e) had been substituted by amendment for the words "they are" originally typed in. The latter words also appeared in the affidavit supporting the amended application filed on 5 February 1999. The amendments were initialled by the deponent and the person before whom the affidavit was sworn. The use of the third person plural pronoun in the affidavit no doubt derived from its use in the affidavit supporting the application which initiated the proceedings in 1997 at which time four persons were named as applicants. 8 The delegate concluded that the wording of par (d) did not indicate, as required by s 62(1)(a)(iv), that the "applicant" was authorised by all the persons in the native title claim group. The wording instead was said to appear to refer to persons other than the sole applicant as being authorised by the claim group. In respect of par (e) of the affidavit and relevant to s 62(1)(v) the delegate said : 9 "The wording of the affidavit does not indicate, as required by this section, the basis on which the applicant is authorised by members of the native title claim group. Instead the applicant appears to be stating the basis on which persons other than herself are being authorised by the descendants of those persons rather than necessarily members of the native title claim group for this application." 10 The reasoning of the delegate leading to the conclusion of non-compliance with s 62(1)(a)(iv) is based upon the use of the word "they" rather than "I" in the affidavit supporting the amended application as filed on 5 February. But the affidavit of 4 March 1999 corrected that semantic difficulty. It would have been open to the delegate in any event to have regarded the problem as a slip or error deriving from the original affidavit. But even on the terms in which he found it to be expressed, the non-compliance did not exist. In my opinion, this aspect of his reasoning was erroneous. 11 In relation to par (e) of the affidavit, the delegate's reasons went to a matter of more substance. What is required by s 62(1)(a)(v) is that the affidavit state "the basis on which the applicant is authorised as mentioned in subparagraph (iv)…". The necessary authorisation is by "all the persons in the native title group". The ways in which such authorisation will be recognised for the purposes of the Act are set out in s 251B. That section requires "…a process of decision-making that, 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…". Absent such a process "… a process of decision-making agreed to and adopted, by the persons in the native title claim group…, in relation to authorising the making of the application and dealing with the matters…" will suffice. 12 The delegate's reasons were based in part upon the use of the pronoun "they" in par (e) as involving an apparent statement that persons other than the applicant were being authorised. That is a deficiency which was cured in the affidavit as it stood when the registration test was applied. However the other element of the delegate's reasoning was directed to the claimed source of authorisation, descendants of the members of the native title claim group, rather than members of the group themselves. In my opinion, this was more than just a slip of the pen. It indicates that the deponent failed to direct her mind to the matter she must establish, namely the basis of authorisation. In this respect I consider the application did not comply with s 62(1)(a)(v).

Evidence of Authorisation - Failure to Comply with Section 190C(4)(b) 13 It is a condition of registration imposed by s 190C(4)(b), read with s 190A(6)(b) that: "The Registrar must be satisfied that either of the following is the case: (a) the application has been certified under paragraph 202(4)(d) 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." 14 It is not in dispute that in this case there was no certificate which would comply with s 190C(4)(a). The delegate thus correctly concluded that the two remaining questions of which he needed to be satisfied were: ". Is the applicant a member of the native title claim group? and . Do all the current (that is, at the time of consideration of the Registration Test) persons in the native title claim group authorise the applicant to make the application and to deal with matters arising in relation to it." The delegate had regard to a number of statements lodged by various persons named as members of the native title claim group and a chart showing the inter-relationship of the members of the group. He was satisfied that Mrs Martin believed that she was authorised by all persons in the native title claim group to make the application and that she believed that the process of authorisation was under traditional laws and customs of the native title claim group. He was also satisfied that thirteen of the named members of the group who had provided signed statements authorised the applicant to "make the application and to deal with matters arising in relation to it". Two of the statements gave evidence of authority offered by ten other named members of the claim group. Including the applicant, a total of twenty three members of the claim group had either directly or through a representative authorised the applicant. In addition, the delegate was satisfied that the biological descendants of those people had, through their parents/grandparents, also authorised the applicant. 15 Nevertheless there remained a total of eight named members of the claim group who had not provided information regarding their authorisation of the applicant. Seven of these were children of Horace Phillips. There was no information provided from any of them or any one else that directly indicated that they had authorised the applicant. There was therefore no evidence of authorisation from that branch of the family. In addition, there was no other direct information provided to the delegate which supported the authorisation of the applicant by those members of the claim group. Beyond the applicant's assertion of a traditional authorisation process, there was no further evidence supplied that the asserted customs exist and how they would apply in the particular situation. He also made reference to a claim by the applicant that: "…following a number of family meetings and personal communications, by which such agreement was reached, I am authorised by my siblings, my cousins, their descendants and my descendants, who comprise the native title claim group to make this application and deal with the matters arising in relation to it." No further detail was provided as to the nature and content of those meetings and personal communications or whether they specifically involved the eight members of the claim group who had not directly authorised the applicant. The delegate expressed his conclusion on this point thus: "16. I am satisfied that the applicant is a member of the native title claim group and that 23 of the 32 named members of the claim group and their biological descendants have authorised the applicant to make the application, and deal with matters arising in relation to it. 17. For the reasons given in paragraphs 13-16 above, I am unable to be satisfied that the remaining 8 named members of the claim group and their biological descendants have authorised the applicant. 18. The application fails this condition." 16 It was said on behalf of the applicant in these proceedings that the delegate was satisfied that the applicant believed that she was authorised. This evidence of her belief was said to have probative value. The applicant submitted that there was no lawful basis for the delegate to reject that evidence. The delegate, it was said, for no apparent reason effectively accorded no weight to that evidence and sought other evidence from the named members of the native title claim group in order to be "satisfied" of the authorisation of each of them. He was supplied with such evidence in relation to twenty three of the named members of the native title claim group and, it was said, an explanation as to why the same was not supplied in relation to the remaining eight named members of the group. This appears to have been a reference to a letter from counsel for the applicant to Mr Scutt, an officer of the National Native Title Tribunal, dated 9 March 1999. In that letter it was said: "It has not been possible to obtain a confirmatory authorisation document from every person named as a member of the claimant group in the short time since a question was raised as to the adequacy of Joan Martin's affidavit, because several of the members of the claimant group are scattered through the Murchison, Gascoine area." (sic) 17 In supplementary submissions filed following the decision of the Full Court in Western Australia v Strickland reference was made to my own observations at first instance in that case which were approved by the Full Court at pp 51-52. The relevant part of the observation about the operation of s 190C(4)(b) quoted by the Court was as follows: "The affidavit attached to the application meets the requirements of s 190C(5)(a) which requires no more than a statement that the requirement of authorisation referred to in s 190C(4)(b) has been met. It is also required briefly to set out the grounds on which the registrar should consider that it has been met. The insertion of the word 'briefly' at the beginning of s 190C(5)(b) suggests that the legislature was not concerned to require any detailed explanation of the process by which authorisation is obtained. The sufficiency of the grounds upon which the registrar should consider that the requirement has been met is primarily a matter for the registrar. … It is to be noted that s 190C(4) does not confine the registrar to the statements made in the affidavit or the information provided in the application in reaching the relevant state of satisfaction. Nor is the registrar so confined by s 190C(5)." 18 The approach taken by the delegate in this case was consistent with the principles set out in the passage just quoted. In the end, having considered both what was in the affidavit and a significant number of additional statements, he was not satisfied that authorisation by all the members of the native title claim group had been granted. He was entitled to take the view, particularly in the light of the incompleteness of the additional information, that what he regarded as Mrs Martin's belief expressed in the affidavit should not be taken as proof of the fact. It is to be noted that the facts of this case differed from that in Western Australia v Strickland where the asserted source of authorisation under traditional law and custom was in the two named applicants themselves, an assertion which was supported by independent evidence. As I have previously observed, the authorisation requirement acknowledges the communal character of traditional law and custom which grounds native title. It is not a condition to be met by formulaic statements in or in support of applications. There was no error on the part of the delegate in relation to this condition.

Factual Basis for the Claimed Native Title 19 Section 190A(6) requires that the Registrar accept the claim for registration if it satisfies, inter alia, all the conditions in s 190B. In any other case the Registrar must not accept the claim for registration. Section 190B(5) provides: "The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs." It is the delegate's approach to the construction of the conditions reflected in pars (a), (b) and (c) that gives rise to grounds (3) and (4) of the application for review. 20 It is convenient to set out the terms of Schedules E and F of the amended application, which contain respectively a description of the native title rights and interests claimed in relation to the area affected by the application (s 62(2)(d)) and a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist (s 62(2)(e)). Schedules E and F are in the following terms: "Schedule E [see Act, s 62] The native title rights and interests claimed are the rights to the possession, occupation, use and enjoyment as against the whole world (subject to any native title rights and interests which may be shared with any others who establish that they are native title holders) of the area, and any right or interest included within the same; subject to the following: (i) To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants. (ii) The claim area does not include any offshore place. (iii) The applicants do not make a claim to native title rights and interests which confer possession, occupation use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in section 23F of the NTA, was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia and a law of that State has made provision as mentioned in section 23I in relation to the act; (iv) Paragraph (iii) above is subject to such of the provisions of sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which will be provided prior to the hearing; (v) The said native title rights and interests are not claimed to the exclusion of any other rights or interests validly created by or pursuant to the common law, a law of the State or a law of the Commonwealth. Schedule F [see Act, s 62] The native title rights and interests are those of and flowing from the right to possession, occupation, use and enjoyment of the land pursuant to the traditional laws and customs of the claim group based upon the following facts: 1. the native title claim group and their ancestors have, since the assertion of British sovereignty, possessed, occupied, used and enjoyed the claim area; and 2. such possession, occupation, use and enjoyment has been pursuant to and possessed under the laws and customs of the claim group, including traditional laws and customs that rights and interests in land and waters vest in members of the native title claim group on the basis of: a. descent from ancestors connected to the area b. conception in the area c. birth in the area d. traditional religious knowledge of the area e. traditional knowledge of the geography of the area f. traditional knowledge of the resources of the area g. knowledge of traditional ceremonies of the area (iii) such traditional law and custom has been passed by traditional teaching, through the generations preceding the present generations to the present generations of persons comprising the native title claim Group; (iv) the native title claim group continues to acknowledge and observe those traditional laws and customs; (v) the native title claim group by those laws and customs have a connection with the land in respect of which the claim is made; (vi) the rights and interests are capable of being recognised by the common law of Australia." (sic) 21 Initially, in his reasons dealing with s 190B(5), the delegate formulated the question which he had to decide thus: "1. This condition requires me to be satisfied that the factual basis on which it is asserted that there exist native title rights and interests described at schedule E of the amended application is sufficient to support that assertion. 2. In reaching this decision I must be satisfied that the factual basis supports the 3 criteria identified at s 190B5(a) -(c)." (sic) He referred to a submission as to the interpretation of the section from counsel for the applicants, which he rejected. The submission was in substance that s 190B(5) does not require anything more than an assertion of the facts upon which the native title rights and interests are based. The delegate said: "4. I respectfully disagree with this interpretation. In my view I am required to be satisfied that there exists sufficient factual basis on the totality of the information which, under s 190A(3) I must or may have regard to. In my view s 190B(5) may require more than an assertion of the facts upon which the native title rights and interests are based for me to be satisfied on the elements of this condition." The delegate referred to Schedule F of the application as containing "a series of assertions in support of this condition". He also referred to certain other material comprising determinations and objector contentions in certain cognate objection proceedings in the Tribunal, WO97/368 and WO97/446 together with statements from four members of the claim group and the original application lodged on 4 July 1997. 22 Turning then to par (a) of s 190B(5), the delegate said: "7. This criteria (sic) requires me to be satisfied that: . the members of the native title claim group have an association with the area (under claim); and . the predecessors of the members of the native title claim group had an association with the area (under claim)." The question thus framed is not the question that the delegate had to answer. What he had to be satisfied of was that the factual basis on which it was asserted that the native title rights and interests claimed exist supported the proposition that the native title claim group and the predecessors of those persons had an association with the area. Notwithstanding this erroneous formulation, the delegate's analysis indicates that he did in fact address the correct question. Indeed no complaint is made of his approach in this respect. However, in relation to par (a) of s 190B(5) it is said that he erred in various aspects of its construction. 23 The applicants were successful in satisfying that limb of the criterion under s 190B(5)(a) relating to ancestral association. They failed however to meet the criterion so far as it concerned the association of the current members of the native title claim group with the area under claim. That was because the delegate could not find a basis for a connection between the members of the native title group and all of the area under claim. It must be said at the outset that the description of the factual basis upon which the claimed native title rights and interests were asserted as set out in Schedule F was diffuse and general and would be unlikely, in the ordinary course, to satisfy the Registrar that it supported the assertions set out in s 190B(5). However the Registrar's delegate in addressing this condition is not limited by the statements set out in the application and may refer to additional material - Western Australia v Strickland at 55. The provision of material disclosing a factual basis for the claimed native title rights and interests, for the purposes of registration, is ultimately the responsibility of the applicant. It is not a requirement that the Registrar or his delegate undertake a search for such material. 24 In this case the delegate found references in the statements provided by various members of the claim group to their association with particular areas concentrated around the centre of the claim area. Other more outlying areas were cited by the applicant as places of significance for Widi people or meeting places for elders from all over the Gascoyne/Murchison area but not necessarily those with which claim group members have maintained an association. The delegate also noted that the only place referred to within the additional area added to the claim in October 1997 was Three Springs. Overwhelmingly the places mentioned in the statements are those surrounding the towns of Morawa, Koolanooka and Perenjori. There was no evidence of association with the coastal areas claimed around Dongara, which was particularly relevant as the original claim was expanded to include that area. The very limited anthropological references similarly did not refer to that area. Additionally, no information was provided regarding association with the northern and eastern parts of the claim. The delegate observed: "22. I am satisfied that the current claim group has a factually based association with at least parts of the claim area. There is, however, generally a paucity of information provided about current association and I am unable to infer from the material provided that association includes all of the area of land and waters where the particular native title rights and interests are claimed." He expressed the conclusion on this aspect of s 190B(5) thus: "23. On the information before me, I am unable to be satisfied that members of the native title claim group have, an association with the particular land and waters under claim that is sufficient to support the assertion of the existence of the native title rights and interests claimed." 25 The delegate was said to have erred in his failure to infer that the relevant association extended to all of the area of land and waters claimed. He was said to have misdirected himself as to the meaning of the word "association" by limiting it to a "physical presence" at a place which he then required to be demonstrated by the evidence of an individual's personal attendance and requiring a repetitive physical presence in relation to each of the areas. 26 I do not read the delegate's reasons as having so narrowly construed the concept of association. He looked to the positive material put before him asserting a factual basis for association and found that it disclosed association only with particular areas. If it be the fact that that material disclosed only physical association, that does not mean that he has wrongly construed the nature of the association that may be sufficient for the purpose of the recognition of native title. There was simply a lack of material to support an association, physical or spiritual, with the entire area claimed. He was not obliged to accept the very broad statements contained in Schedule F which have no geographical particularity. In my opinion the delegate did not err in his approach to the application of the condition in s 190B(5)(a). 27 He then had regard to s 190B5(b) which subsection he said required him to be satisfied that traditional laws and customs exist, that they are respectively acknowledged and observed by the native title claim group and that they give rise to the native title rights and interests claimed. As already noted, this is an erroneous formulation of the question in that he had to be satisfied that there was a factual basis for those assertions. Nevertheless, it is plain from his analysis that he has approached the question of satisfaction on the correct basis. He referred to the assertion in Schedule F that the possession, occupation, use and enjoyment of the area under claim had been pursuant to and possessed under the laws and customs of the claim group which had been passed by traditional teaching from preceding generations to the present generation of persons comprising the native title claim group. He referred to "evidence provided by the applicant in support of the assertion identified above". Reference was made to a Statement of Reasons and Decision by Tribunal member, Kim Wilson, in the objection proceeding WO97/368 and, in particular, an affidavit of the applicant referred to in that Statement. It was noted also that the Objector's Contentions from the same objection proceedings detailed the spiritual connection between the claimant group and the land. The delegate said, however: "32. On balance on the evidence provided, I am not satisfied that there exist traditional laws acknowledged by, and traditional customs observed by the members of the claim group which give rise to the native title rights and interests claimed by the claim group. 33. While information is provided about a community from which the claimant group and their predecessors derive their rights and interests - the Widi people - there is little information about the relationship of the claim group and the predecessors of the claim group to the 'Widi People'. It is not apparent, for example, whether the claim group comprises the entire group identified as Widi or whether they are a subgroup of a wider Widi group. 34. It follows that the applicant has not detailed how the traditional laws acknowledged by, and traditional customs observed by the Widi group give rise to the native title rights and interests claimed by this particular claim group." The delegate also found that from the information provided it was unclear as to whether the laws and customs referred to related to the land and waters where native title rights and interests were claimed. At par 36 he said: "In summary, the applicant has not provided information demonstrating the existence of laws and customs acknowledged and observed by a community of people which in turn entitles this particular claim group to claim the native title rights and interests identified in this application and in relation to the particular land and waters claimed in this application." 28 The complaint made of the delegate's approach was that he erred in law by misdirecting himself that the statements in Schedule F of the application were mere "assertions" upon which no probative value could be placed. He was said also to have misdirected himself as to the questions raised for him by s 190B(5)(b). The relevant questions, it was said, are: (a) Are there traditional laws and traditional customs observed by the claim group; (b) Do they give rise to the claimed native title rights and interests?

In par 25 of his reasons, however, the delegate accurately identified the questions which he had to answer. It was said that he had converted them to "misconceived questions" about the relationship between the "Widi People" and the claim group and its predecessors, whether the claim group was the entire Widi group or a sub-group of it and whether the traditional laws and customs of the Widi group were the traditional laws and customs of the claim group. These questions were said not to arise because the evidence of the claim group members which was considered consistently equated its predecessors with the Widi people from whom they claimed to have inherited their native title interest in the claim area and learnt of the traditions and customs of the area. And even if they were wrong about that, it was said that was not an issue which the decision-maker needed to resolve in considering whether they had satisfied the requirements of s 190B(5)(b). The critical finding of the delegate was that there was little information about the relationship of the claim group and its predecessors to the Widi people. This consideration was involved in his analysis of whether he could be satisfied that there was a factual basis supporting the primary assertion referred to in s 190B(5)(b). He was entitled to take the view that he did that the factual basis laid out did not support the conclusion that was necessary. He was not obliged to accept the very general assertion in Schedule F as disclosing a factual basis for the matters of which he had to be satisfied. In my opinion the delegate did not err in coming to the conclusion that he did in relation to this condition. 29 Under s 190B(5)(c) the delegate had to be satisfied that there was a factual basis supporting the assertion that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. This is plainly a reference to the traditional laws and customs which answer the description set out in par (b) of s 190B(5). It followed from his conclusion in relation to that paragraph that he could not be satisfied that there was a factual basis set out for the assertion referred to in par (c). In this respect also, he did not err.

Improper Exercise of Power 30 Under this ground it is asserted that the exercise by the delegate of his power was so unreasonable that no reasonable person could have so exercised it. Given the opinion I have already formed of the conclusions arrived at by the delegate, it is plain that this ground cannot be made out.

Conclusion 31 Although, as I have found, the delegate has erred in one respect relating to the sufficiency of the affidavit in relation to authorisation, that is not a matter which would support the setting aside of his decision given that the application failed the registration test in a number of other respects. For this reason the application will be dismissed. I will hear the parties as to the costs of the application. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .

Dated: 19 January 2001 Counsel for the Applicant: Mr G McIntyre

Solicitor for the Applicant: Aboriginal Legal Service

Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Solicitor for the Second Respondent: Mr G Tannin with Ms C Thatcher

Date of Judgment: 19 January 2001

Native Title Act 1993(Cth)s 190B, 190C

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Judgment (13 paragraphs)

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Legislation Cited (1)

Cases Cited (2)

Cited By (11)