Murray v The Registrar of the National Native Title Tribunal - [2002] FCA 1598 - FCA 2002 case summary — Zoe

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Murray v The Registrar of the National Native Title Tribunal

[2002] FCA 1598

Federal Court of Australia|2002-12-20|Before: Marshall J

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Court

Federal Court of Australia

Decision date

2002-12-20

Before

Marshall J

Source

Original judgment source is linked above.

Judgment (126 paragraphs)

[1]

REASONS FOR JUDGMENT 1 On 6 March 2002, the applicant, Sonia Murray, applied to the Court pursuant to s 5 of the Administrative Decisions Judicial Review Act 1977 (Cth) ("the ADJR Act") for an order of review in respect of a decision of a delegate of the first respondent, the Registrar of the National Native Title Tribunal, to register an Indigenous Land Use Agreement ("the ILUA") on 21 December 2001. 2 The decision to register the ILUA was made pursuant to s 24CD of the Native Title Act 1993 (Cth) ("the Act") by Ms Susan Walsh, a delegate of the first respondent. Reasons for Ms Walsh's decision were published after the formal registration of the ILUA. The ILUA is entitled "Blairgowrie Safe Boat Harbour Indigenous Land Use Agreement (Area Agreement)".

[2]

The agreement 3 On 30 November 2000, the application to register the ILUA was received by the first respondent. The parties to the ILUA were the third respondent, Ms Briggs (on behalf of the Boonerwrung People) and the second respondent, Blairgowrie Safe Boat Harbour Ltd ("the company"). 4 The agreement disclosed that the company proposed to build a safe boat harbour at Blairgowrie on the Mornington Peninsula. The project was intended to be integrated with existing facilities at the Blairgowrie Yacht Squadron Inc and was to be undertaken on Crown land and water. The recitals to the agreement included the following: "E. No native title claim has been filed with the National Native Title Tribunal in relation to the Subject Land. F. The Subject Land falls within an area in relation to which the Boonerwrung people are concerned to protect Aboriginal cultural heritage and artefacts. G. In circumstances where it is not certain whether the granting of the approvals to facilitate the Project, and the construction of the Project itself, will affect any native title rights and interests, the parties wish to ensure that the Project and all such approvals are valid Future Acts under the Native Title Act 1993 (Cth) ("NTA"), and hence have agreed to enter into this Agreement as an Indigenous Land Use Agreement (Area Agreement) ("ILUA") under the NTA. H. Compensation has been agreed between the parties in accordance with the terms of this Agreement. I. In this Agreement the "Boonerwrung people" means those Aboriginal people who, in accordance with the traditions and customs of the Boonerwrung people, are regarded by the Boonerwrung people as being members of that group and constitute the native title group for the purposes of section 24CD(3) of the NTA." 5 The term "future Acts" is defined in the agreement as "the construction of the Project, and any act necessary to enable the Project to be constructed in accordance with all applicable laws …". 6 Paragraph 2 of the agreement is headed "Validation of the Future Acts", and provides that: "It is the intention of each of the parties that this Agreement will be registered under s.24CL of the NTA, and that upon registration, to the extent that any native title rights and interests exist over the Subject Land, and are affected in any way by the Future Acts, the Future Acts referred to in this Agreement will become valid pursuant to s.24EB(2) and/or s.24EBA(3) of the NTA. Accordingly, each party undertakes to take all steps in its power to ensure that this Agreement achieves registration."

[11]

19 By letter dated 9 July 2001, Ms Newby advised Mirimbiak and the parties to the ILUA of a process to deal with the objection to the registration of the ILUA. The Tribunal requested submissions from Mirimbiak and Ms Briggs in relation to the forthcoming decision as to whether the ILUA should be registered. Such submissions would be exchanged with Ms Briggs having a final right of reply. A timetable was proposed for the exchange of information. Solicitors for the company and a representative of Ms Briggs aired objections to the timetable and the process. 20 On 18 July 2001, Ms Walsh was appointed as the delegate of the first respondent to make the decision under s 24CL of the Act whether or not to register the ILUA. On 8 August 2001, Ms Walsh wrote to Mirimbiak. Omitting formal parts, the letter was in the following terms: "I have recently been appointed the delegate of the Registrar to make a registration decision for the Blairgowrie ILUA after the end of the notice period. The notice period ends on 16/8/01. I have your letters to the Tribunal dated 10/5/01 and 22/5/01. The essence of the information contained in these letters is that you believe that current research supports that the descendants of Marjorie, Jane Foster and Elizabeth Maynard are Boonerwrung, but these people have not seen nor authorised the making of the ILUA. Genealogies of the three additional lines of descent of Boonerwrung people were provided to the Tribunal on a confidential basis on 23/2/01 (see reference to this information in the 22/5/01 letter). The information contained in your three letters and attached genealogies is information that I must have regard to when making my decision (see s24CL(4)(b)). It amounts to an assertion by the recognised body for the ILUA area that there are other people who claim to be Boonerwrung who have not authorised the ILUA and may be relevant to whether I can be satisfied about the reasonableness of the efforts that were made to identify all potential native title holders for the Blairgowrie ILUA area (see s24CG(3)(b)(i)). In the interests of procedural fairness, this information must be provided to Ms Briggs and she must be provided with an opportunity to respond to it. The letters dated 10/5/01 and 22/5/01 have been provided to Ms Carolyn Briggs. However, Ms Carolyn Briggs has not been provided with the genealogies supplied to the Tribunal on 23/2/01, nor with the letter dated 23/2/01 that accompanied the genealogies. The letter dated 23/2/01 and the attached genealogies is information that Ms Briggs needs to consider and be provided with an opportunity to respond, prior to the forthcoming registration decision. I will have Ms Briggs sign a confidentiality agreement prior to release of the information to her. If she refuses to sign a confidentiality agreement, I will impose confidentiality conditions on her prior to release of the information. I have also invited Ms Briggs to provide a response to this information that addresses:

[23]

· the assertion by Mirimbiak that there are other Boonerwrung who have not authorised the ILUA. I note that Mr Steel has objected on your behalf to the Tribunal letter dated 9/7/01 setting out a process for the confidential exchange of information, and provision of procedural fairness to both you (and the people that you represent) and to the Mirimbiak clients. Mr Steel maintains that Mirimbiak need to show on a prima facie basis that they represent people who may have a native title interest as required by the Act before being entitled to procedural fairness. I have considered this submission. However, I have formed the view that to engage in the alternative process suggested by Mr Steel pre-empts the decision that I will eventually be required to make in relation to whether or not the conditions in s24CG(3)(b) have been met. I do not accept that I am required, at this early stage, to reach a decision about whether the Mirimbiak clients are prima facie people who may be native title holders. I might be required to make findings about this when making my eventual decision but it is not something that I should decide before affording procedural fairness to parties that may be aggrieved by my decision to register the ILUA. The Mirimbiak information comes from the recognised representative ATSI body for the area in which the ILUA is located. It is information that I must have regard to when making my decision (see s24CL(4)(b)). The Mirimbiak information is an assertion by the recognised body for the ILUA area that there are other people who claim to be Boonerwrung who have not authorised the ILUA. It appears from your own information that the ILUA area is located within what is recognised by the historical record as the traditional country of the Boonerwrung people (see Ian Clark language map and statements in your letter dated 1/2/01). I am of the view that the Mirimbiak information requires me to establish a fair process for the exchange of information and opportunity to respond between the parties who may be aggrieved by my decision. The parties who may be aggrieved by my decision would appear to be those who claim to be Boonerwrung, bearing in mind that registration of the ILUA will bind all native title holders, whether they are parties to the agreement or not. I am of the view that the appropriate process for exchange of information and response is set out below: 1. I will provide you with the Mirimbiak information (this will not only include the letter dated 23/2/01 and the attached genealogies, but any other relevant information that Mirimbiak has provided in the course of the s190A consideration of the Boonerwrung applications VG6005/98 and VG6025/98)

[28]

You have an opportunity to reply to the Mirimbiak/Mirimbiak client's response within 7 days. The parties' responses are to be written and may consist of submissions and/or additional information for my consideration in relation to the requirements of s24CG(3)(b). I will not provide either party with the other's information unless I am provided with signed confidentiality agreements that bind the parties and the parties representatives. In the event that a party refuses to sign a confidentiality agreement, I will impose confidentiality conditions, prior to release of the information to that party. I will submit confidentiality agreements for signing by the parties as soon as possible. When confidentiality conditions have been signed or imposed, I will advise of firm dates for the provision of material/responses that follows the timeframes outlined above." 22 On 10 August 2001, Ms Newby wrote to Mirimbiak and asked, inter alia, the following: "Could you confirm that your clients will provide information to the Delegate outlining why they believe the Victorian Boonerwrung did not make reasonable efforts to identify and seek authorisation of all people who may hold native title in the ILUA area…?" 23 On 14 August 2002, Mirimbiak replied to Ms Newby, by way of facsimile, through Mr Keon-Cohen. Omitting formal parts, the facsimile transmission said: "First, my clients instruct that their position has not changed: they continue to object to the registration of this ILUA. This objection is on the same basis as before: they have not sighted the document, and thus are unable to ascertain whether they agree with its terms or not. I cannot understand how this position can be considered unreasonable. Perhaps you might enlighten me and my clients. Second, my clients do not believe that reasonable efforts have been made to seek their authorisation since no person from the Briggs family or the Tribunal has contacted them about this, nor shown to them the ILUA for which authorisation is sought. Third, my clients object to the provision of their genealogical material to Ms Briggs, even given the confidentiality regime explained in Susan Walsh's letter of 8 August 2001. The only basis upon which they are prepared to allow Ms Briggs to sight their genealogical material is if it is shown to her (and members of her family if she wishes) at the premises of the Tribunal; that no notes are taken; that such viewing is supervised by officers of the Tribunal; and that all Briggs genealogical material held by the Tribunal is shown to my clients under the same restrictions. Further, my clients are happy to meet with the Briggs family at the Tribunal to seek to resolve all issues including sighting the ILUA and whether my clients then wish to remove their objection to its registration. May I suggest a meeting to attempt to sensibly resolve this issue." 24 On 13 August 2001, Mr Larry Steel (on behalf of Ms Briggs) sent an email to Ms Newby, in which Mr Steel made "comments" on a "without prejudice" basis. Those comments were argumentative in nature and were in support of the registration of the ILUA. The email was forwarded by Ms Newby to Ms Walsh with the additional comment that: "I think it would be very valuable if you could talk Larry through the kind of things he needs to include in his submissions and in what format." 25 On 15 August 2001, Ms Walsh replied by email to Ms Newby as follows: "I have read the Email from Larry below. We need to make the point to Larry that it is counter-productive for him to focus on what Mirimbiak has or has not done to establish the credentials of the Tasmanians. He needs to focus on this: the information he has provided to date may not be enough to get them over the line under s24CG(3). I am not going to be able to make an informed decision because Larry tells me that reasonable efforts were made - I need a first hand account that describes the effects made. I am not sure that the information provided to date is sufficiently detailed. I think I have outlined in my first email today the sorts of things that Larry needs to concentrate on if they decide to provide further information."

[30]

27 By letter dated 17 August 2001, Ms Newby wrote to Ms Briggs, marked to Mr Steel's attention. The letter was headed, 'Further information required in submissions an authorisation of ILUA VIA00/4' and stated: "To assist you in preparing your submissions regarding the authorisation process undertaken by your group in relation to the Blairgowrie ILUA, I am providing you with copies of the material that the Tribunal is currently relying on. I will also summarise the areas that the delegate believes you need to focus on, to ensure that she has all the necessary information before her when making her decision in relation to registration of the ILUA. The areas outlined below are a guide only, and you may also wish to include other information you consider to be relevant to the issue of identification of native title holders and authorisation of the ILUA. I am aware that you may have already relayed some of this information to Tribunal staff, either over the telephone or in person. However, we now need you to provide the information outlined below to the delegate in one clear and complete written submission, which may be in the form of a letter, that can then be provided to the delegate for her consideration. Please note that the contents of this letter do not constitute legal advice in any form. You should not rely on this letter in place of obtaining independent legal advice, and you should contact a lawyer if you think that you require legal advice. In your submissions to the delegate, you should address: · What steps were taken to identify all Boonerwrung people when the native title group was initially being formed? We are aware that you may not have access to documents relating to this time as Mirimbiak holds them. Please provide the delegate as much detail as possible on the process undertaken. For example, you have mentioned that advertisements were placed. To whom were they addressed, what information did they contain, and how were they circulated? What other steps were taken (for example, meetings and other discussions)?

[88]

Compliance with s 24CD(1) 38 Counsel for Ms Murray submitted that the ILUA should not have been registered because it did not comply with s 24CD(1) in that "all persons in the native title group" were not parties to it. It was common ground that s 24CD(2) did not apply and at the relevant time there was no representative Aboriginal/Torres Strait Islander body for the area. Under s 24CD(3) the native title group relevantly consisted of "any person who claims to hold native title in relation to land or waters in the area". 39 Counsel for Ms Murray submitted that their client is part of the native title group, being a person who claims to hold native title in relation to the land and water in the area covered by the ILUA, but is not a party to the agreement. 40 At paragraphs 9 and 10 of the decision of Ms Walsh, the following is recorded: "9. I find that the provisions of s24CD are satisfied in relation to mandatory native title parties, if at least one person claiming to hold native title in relation to the area or one representative A/TSI body is a party. In this case the agreement is between Carolyn Briggs on behalf of the Boonerwrung People and Blairgowrie Safe Boat Harbour Limited ("Blairgowrie"). 10. …I am satisfied that Carolyn Briggs is a person claiming to hold native title in relation to the area covered by the agreement, and therefore the requirements relating to mandatory native title parties in s24CD are therefore met." 41 Counsel for Ms Murray said that Ms Walsh's view is inconsistent with s 24CD(1) of the Act, which they said, required all persons who claimed to hold native title in the area to be a party to the agreement. It was contended that "all persons" in that context should be read to mean "all those who are reasonably available and who are competent to express an opinion"; see De Rose v South Australia [2002] FCA 1342 at [928] per O'Loughlin J. 42 Counsel for Ms Murray referred to the provisions of s 24CG(3)(b) as reinforcing the need to ensure that all persons who hold or may hold native title are identified as a matter of objective fact. There must be, so the argument ran, identification of all the persons required to authorise the agreement and those persons must all be parties to the agreement. 43 Counsel for Ms Briggs submitted that s 24CD performed a different function from s 24CG. Counsel reiterated what was said to be the purpose of registration of indigenous land use agreements, that is, "to enable persons who claim to hold native title to promote agreements with, for example, persons who propose to develop land in respect of which a native title claim might thereafter be made". 44 Counsel for Ms Briggs contended that s 24CD(3) enables "any one person who claims to hold native title to begin the process and carry forward the process of negotiating an ILUA with respect to the subject land". Counsel submitted that "s 24CD does not have the effect of requiring all persons who might claim to be native title holders with respect to the land to be parties". Section 24CD(3), so the argument ran, focuses on any one of those persons who might (absent the application of s 24CD(2)) be competent to promote an indigenous land use agreement. Counsel for the company supported the submissions made on behalf of Ms Briggs. 45 In my view, the construction of s 24CD favoured by counsel for Ms Briggs is the preferable construction. The use of the words "all persons" in s 24CD(1) is understandable given that s 24CD(2), if applicable, will encompass a range of known and readily identifiable persons or bodies. In s 24CD(3), "native title group" has a special defined meaning, conferring party status on any single person or body of the kind described. 46 The above analysis is supported by the explanatory memorandum to the Native Title Amendment Bill 1997 which, insofar as is presently material, provides as follows: "Terms used in provisions dealing with requirements for ILUAs

[98]

57 Ms Murray's outline of argument was filed on 9 August 2002. It contained no reference to any submission about bias in the sense described at paragraph 9 of the amended application. 58 In oral submissions, counsel for Ms Murray submitted that: "there is a reasonable apprehension that the first respondent behaved or displayed … a remarkably proactive approach to the decision making required in this case." 59 At paragraphs 19 and 20 of Ms Murray's written outline of argument in reply, the following is said: "19. The ILUA, authorisation materials and files of the First Respondent, …give rise to a reasonable apprehension that the First Respondent was biased in making the decision. 20. In particular, the authorisation materials and the files of the First Respondent disclose that the First Respondent, rather than acting impartially in making the decision, disclosed a willingness to assist the Third Respondent in facilitating the registration of the agreement and to actively seek further material in order to justify that result. No similar consideration was provided to the Applicants." 60 In support of the above contention, reliance was placed on certain documents which were in evidence in the proceeding. The first such document was a copy of a draft letter from Ms Briggs to the Tribunal dated 1 February 2001, with draft alterations by an officer of the Tribunal to apparently assist in the re-drafting of a letter. The letter was designed to confirm the native title owner status of the land and water covered by the ILUA. It did not impact upon any dispute with Ms Murray or the Tasmanian group. 61 The second document referred to was an internal Tribunal memorandum dated 20 March 2001. That memorandum is completely unrelated to any issue arising in this case. It concerned an application relating to a Wilsons Promontory claim. 62 The third document is an internal email by a Ms D'Souza of the Tribunal to Ms Newby, dated 12 June 2001, which raises concerns about compliance with s 24CG(3) in respect of the ILUA. It is exceedingly difficult to see how the email can support any allegation that there was a reasonable apprehension that Ms Walsh was biased in her decision to register the ILUA. 63 The fourth document is another internal Tribunal email, from Ms Newby to Ms D'Souza, which contains the following paragraph: "I think the real issue is that the Tas Boonerwrung perhaps do need to be acknowledged as Boonerwrung descendants by the Vics and included in their claim, perhaps with lesser rights to acknowledge the historical loss of connection. As I have said on the phone I feel this is unlikely to happen due to the acrimonious and highly legal relationship that has developed between the rep body/Tas people and the Vic people." 64 Counsel for Ms Murray also relied on the next paragraph of the email which states: "So, I guess you could say the Vics were aware the Tas may be native title holders as they were certainly aware of their claim to be, and so should have gained their authorisation for the ILUA. However, I am not comfortable with the power relationship this puts on ILUAs. It means that the ILUA process is forcing an established NTG to accept other people based on their simply making a claim rather than on the NTG's own processes of accepting who are and who are not traditional owners and why." 65 I fail to see how the internal ramblings of people working in the Tribunal, not including the decision maker, provide any reasonable apprehension that the decision maker herself may have been biased in deciding to register the ILUA. 66 Counsel for Ms Murray referred to another internal memorandum of Ms D'Souza of 27 June 2001. It is alleged to show that the Tribunal was assisting Ms Briggs to provide more material about "the identification and authorisation process". Reference was also made to that part of Ms Walsh's email to Ms Newby of 15 August 2001, which details what further information Mr Steel needed to provide in support of the registration application; see [25] above. 67 I disagree with the view that a reasonable person would conclude that Ms Walsh did not bring an impartial mind to bear on the issues before her. The reasonable person, so called, should be considered to be a reasonably informed person; see Hot Holdings Pty Ltd v Creasy [2002] HCA 51 at [68] per McHugh J. A reasonably informed person would realise that the Tribunal is entitled to request further information from any applicant for registration, if it is not satisfied with the material with which it has been provided. As counsel for Ms Briggs submitted, the Tribunal is not a court - its processes are less formal and it is entitled to be more interventionist. Indeed, s 24CI of the Act allows the Tribunal to assist the parties to an agreement in negotiating with an objector to registration of the agreement; see also s 24CF in the context of negotiation of agreements. 68 Ms Murray has also, under the heading of reasonable apprehension of bias, referred to certain alleged inconsistencies in the decision of Ms Walsh. Under the same heading, Ms Murray has alleged that the Tribunal's refusal to provide Ms Murray with a copy of the ILUA, discloses partiality towards Ms Briggs. This material falls far short of disclosing a reasonable apprehension of bias on the part of Ms Walsh. The Tribunal submitted cogent reasons relating to confidentiality as to why the ILUA would not be made public. However, the failure to provide a copy of it to Mirimbiak does not bear upon the decision to register it. 69 I reject each basis submitted in support of the allegation of a reasonable apprehension of bias on the part of Ms Walsh. I accept the submission of counsel for Ms Briggs that the reasons for the decision to register the ILUA are long and deliberative and carefully set out the grounds upon which the delegate acted to register the ILUA.

[101]

75 In the written submissions filed on behalf of Ms Briggs, it is submitted that the approach of Ms Walsh involved no error of law. In particular, it is contended that the delegate did not mis-state the test under s 24CG(3)(b), but rather observed that a person should not necessarily be regarded as someone who may hold native title simply because they say they do so hold native title. I accept that submission. I see no error in the approach taken by Ms Walsh as to the proper meaning of s 24CG(3)(b). 76 It was further contended by Ms Murray that Ms Walsh erred by relying on material in support of registration which referred to efforts made to determine the status of the Tasmanian group after the agreement was entered into. I consider that Ms Briggs' written submissions at paragraphs 23 and 24 thereof, comprehensively answer that submission and I agree with the contentions made therein as follows: "23. … the Applicants submit that the delegate incorrectly applied section 24CG(3)(b) by examining inquiries made after the date of entry into the agreement, rather than inquiries made before that date (ground 5(b), paragraph 25 of the Outline). However, the delegate found that it was reasonable to conclude, before the date of entry into the agreement, that the Applicants were not part of the Boonerwrung native title group: see statement of reasons (exhibit SGW-34), paragraphs 67, 69-71, 75-76. That conclusion was reached after an extensive analysis of the efforts made before the agreement was entered into (see eg paragraphs 41-49 of exhibit SGW-34), as well as the efforts made after that event. The examination of the delegate was not confined to efforts made after that event as alleged by the Applicants. The delegate's examination of information obtained after September 2000 was in order to confirm that it made no difference to the result: see paragraphs 77-93. This submission of the Applicants, as with other submissions in the Outline, is ultimately merely an attack on the delegate's finding of fact on this question. 24. It should be noted that the thrust of the decision was that, by the date of entry into the agreement, the representatives of the native title group (that is, the Third Respondent) had determined that the Applicants were not people who 'may hold native title in relation to land or waters in the area covered by the agreement' within the meaning of section 24CG(3)(b). Accordingly, there was no obligation to have the Applicants authorize the making of the agreement. The finding of the delegate was that the conclusion of the Third Respondent to this effect was reasonable. This was the central issue in the matter before the delegate and it is primarily an issue of fact. She independently made this crucial finding herself and the merits of that finding cannot be attacked in these judicial review proceedings. That finding does not, in the end, depend on any view as to the proper interpretation of section 24CG(3)(b). It is simply a finding of fact regarding the reasonableness of the steps taken and the view formed by the Third Respondent."

[102]

Procedural Fairness 77 Ms Murray submitted that the members of the Tasmanian group were denied procedural fairness because they were not shown the agreement. There was no obligation on the Tribunal to show Ms Murray the agreement. The matters to be included in a notice of the agreement in accordance with s 24CH(2) do not include the agreement itself. In any event, no material disadvantage to Ms Murray has been demonstrated by the late provision to her of the agreement. 78 Ms Murray also argued that she was denied procedural fairness by not being provided with "authorisation material", such material having been given to the Tribunal by Ms Briggs. This material has now been given to the Tasmanian group and Ms Murray was entitled to make whatever submissions she wished about any alleged deficiency in that material. If there is any deficiency in the material, it has not been highlighted. 79 I accept the submission of Ms Briggs, at paragraph 29 of her written contentions, that procedural fairness was not denied in the context of the authorisation materials. I agree that Ms Walsh "followed an elaborate regime to ensure the confidentiality of the relevant material". I also consider that Ms Murray was "provided with all materials critical to the making of the decision" and that she "had a full opportunity to make (any relevant) submissions … ". 80 Further, Ms Murray contended that she was afforded no opportunity to respond to Mr Steel's letter to Ms Walsh of 29 October 2001, which dealt withmaterial raised by Ms Murray on historical and anthropological issues. It was not contended that Ms Walsh was bound to seek a response to what was, in essence, material by way of reply. This ground is without foundation. 81 Other allegations were raised by Ms Murray concerning a lack of notice of other matters relating to the accuracy of the minutes of meeting between the Tasmanian Group and Ms Briggs. Those issues were matters of fact for the Tribunal to accept or reject. The allegations seek in essence, a review of the merits of the decision to register the ILUA rather than judicial review on properly based questions of law.

[110]

91 Counsel for Ms Murray submitted that Ms Walsh was satisfied that the requirements of s 24CG(3)(b) were met with respect to the ILUA and, in so doing, formed the view that the members of the Tasmanian group were not persons who may relevantly hold native title. It was contended that the delegate made a finding to that effect. Counsel stressed that questions of who may hold native title are matters reserved for this Court pursuant to the Act, rather than the Tribunal. In that regard they referred to s 81. 92 Counsel further submitted that unless the decision subject to challenge in this proceeding is set aside it is binding, authoritative and enforceable. However, counsel conceded that the decision does not bar the Tasmanian group from making a claim for native title over the area covered by the ILUA. It was put that, nevertheless, any successful native title claim would be subject to the ILUA. That in turn begs the question whether the Tasmanian group may be encompassed by the ILUA if they are indeed Boonerwrung people, as they claim. 93 In written submissions filed on behalf of Ms Murray on 17 December 2002, it was stated that the effect of Ms Walsh's decision is "to validate the claim of the [Ms Briggs] to be a native title holder and dismiss the claim of [Ms Murray]". Thereby, it was contended that the decision determined pre-existing rights and was, in substance, a judicial decision. The written submissions further stated that the "practical effect of the decision is that [Ms Briggs] can use the registration of this ILUA as a bargaining tool in negotiations with other parties who may wish to carry out future acts in Boonerwrung country". 94 In my opinion, the so-called "constitutional issue" does not truly arise in the circumstances of this proceeding. In the course of making her decision to register the ILUA, Ms Walsh has expressed a view about the status of the Tasmanian group. That view was expressed having regard to the evidence before her. The decision does not operate in any authoritative or binding way, nor does it create any issue estoppel in respect of what the Tasmanian group may claim in any other administrative process under the Act. 95 In the course of considering whether to register the ILUA, Ms Walsh determined facts and applied concepts, as defined by the Act, and came to a certain view. In so doing, in the manner of the exercise of her functions, Ms Walsh did not exercise judicial power. Her decision in no sense involved a binding consideration of the legal rights and obligations of the Tasmanian group; see Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 149. 96 As was said in Tankey v Adams (2000) 104 FCR 152 at [20], it is necessary "to identify the purpose for which the Tribunal has been required to exercise its power of inquiry and determination"; see also Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656. It was not the purpose of the Tribunal, in this case, to make any binding determinations about the existence of native title. 97 In my view, the delegate's findings of fact, which informed her view about the operation of s 24CG(3)(b) in the circumstances before her, were but an element in the exercise of administrative power; see R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 371. 98 In response to the s 78B notice of a constitutional matter, the Commonwealth Attorney-General sought, and was granted, leave to intervene in the proceeding. Counsel for the Attorney-General submitted, in my view correctly, that the real complaint of Ms Murray was that the delegate made jurisdictional errors in reaching her decision, as distinct from exercising judicial power, in the manner of exercising her functions. 99 Counsel for the Attorney-General referred the Court to recent observations by Gleeson CJ in Luton v Lessels (2002) 187 ALR 529 at [21] to similar effect to those made by the Court in Cram. In Luton, Gleeson CJ noted at [21] that: "The making of decisions by the application of legal criteria to facts as found is characteristic, but not distinctive, of judicial functions. It is also characteristic of many administrative functions."