· by reason of s 190C(4)(a), the certification under Part 11 by an appropriate representative body.
71 The Territory contentions referred also to s 190B(5) and s 190B(6) but they do not in terms relate to the authorisation process.
72 Section 190C(2) and s 190C(4)(a) impose conditions of which the Registrar is required to be satisfied which are straightforward. In Martin v Native Title Registrar [2001] FCA 16 (Martin) registration of the application had not been accepted as the Registrar was not satisfied about a number of the conditions specified in ss 190B and 190C. The application was to review that decision. Two conditions arose from s 190C(2) concerning the affidavit required by s 62(1)(a)(iv) to accompany the application, and by s 62(1)(a)(v) that the affidavit state the basis for the authorisation. The Registrar had simply addressed the content of the affidavit to determine if those conditions were satisfied. That approach attracted no criticism from French J: see at [10] - [12]. However, one conclusion of the Registrar was reversed as it reflected a misreading of the affidavit. As to s 62(1)(a)(v), French J said at [12]:
'… the other element of the delegate's reasoning was directed to the claimed source of authorisation, descendants 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 the deponent failed to direct her mind to the matter she must establish, namely the basis of the authorisation.'
73 His Honour's approach, consistently with my opinion as to what s 190C(2) requires, does not suggest that it required the Registrar to consider whether as a fact the applicant in that case was properly authorised by all the relevant members of the native title claim group. I do not consider that s 190C(2) requires the Registrar to determine whether the claimants are in fact properly authorised.
74 In my judgment, the Registrar did not err in the consideration given to the requirements of s 190C(2) in the way the Territory contends. He identified correctly the matters, on the topic of authorisation, which s 190C(2) required him to address. He identified correctly the material to which he should refer to address those matters. He has addressed them. His conclusion was one reasonably available to him.
75 In Strickland v NTR, in a passage approved on appeal by the Full Court in WA v Strickland at57, French J said at 259 - 260:
'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.'
76 His Honour applied that passage in Daniel v State of Western Australia [2002] FCA 1147 (Daniel). Daniel concerned an application under s 66B of the NT Act to substitute a new set of applicants for the existing applicants, but in substance to remove a certain person from the applicants on the basis that he was no longer authorised by the native title claim group to make the application on its behalf. Daniel demonstrates that the nature of the authorisation required under s 251B to commence an application for the determination of native title is the same as the nature of the authorisation (or decision making process of the native title claim group) to alter the named applicants under s 66B. The nature of the authorisation was described by French J in Daniel at [14] in the following terms:
'In so far as s 251B relies upon decision-making under traditional law and custom, it seems to allow for the 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 or 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.'
77 I respectfully agree with his Honour. But it does not follow, as the Territory contends, that the Registrar was therefore obliged in considering whether the condition imposed by s 190C(2), to the extent it relates to authorisation, to consider the substantive question of the reality of the authorisation, even if it be accepted that the description of the native title claim group is (to use a word from the Territory's submission) 'unusual'. Neither Daniel nor the other cases referred to in its written submission at this point (Moran; Johnson, in the matter of Lawson v Lawson [2001] FCA 894; Duren v Kiama Council [2001] FCA 1363; and Quandamooka People No 1 v State of Queensland [2002] FCA 259) concerned the role of the Registrar when considering whether to accept an application for registration. Holborow also concerned an application under s 66B of the NT Act, and so did not focus on the duties of the Registrar under ss 190A, 190B and 190C.
78 Section 190C(4) indicates clearly the different nature of the conditions imposed upon the Registrar. Section 190C(4) is set out at [14] above. The contrast between the requirements of subs (4)(a) and (4)(b) is dramatic. In the case of subs (4)(a), the Registrar is to be satisfied about the fact of certification by an appropriate representative body. In the case of subs (4)(b), the Registrar is required to be satisfied of the fact of authorisation by all members of the native title claim group. Section 190C(5) then imposes further specific requirements before the Registrar can attain the necessary satisfaction for the purposes of s 190C(4)(b). The interactions of s 190C(4)(b) and s 190C(5) may inform how the Registrar is to be satisfied of the condition imposed by s 190C(4)(b), but clearly it involves some inquiry through the material available to the Registrar to see if the necessary authorisation has been given. The nature of the enquiry is discussed by French J in Strickland v NTR at 259 - 260, and approved by the Full Court in WA v Strickland at 51 - 52. Both Martin at [13] - [18], and Risk v National Native Title Tribunal [2000] FCA 1589 involved consideration of the condition imposed by s 190C(4)(b).
79 As s 190C(4)(a) was found by the Registrar to have been satisfied in this matter, the Registrar was not required to undertake the task which s 190C(4)(b) would otherwise impose of considering whether, upon the material before him, the necessary authorisation had been given.
80 Under s 190C(4)(a), the Registrar was required to identify the relevant native title representative body. He may have needed access to material beyond that in the application to do so. He identified the NLC. It is not contended that he erred in a reviewable way in taking that step. He was also required to be satisfied that the application had been certified by the NLC under s 203BE. He considered whether the certification was given by the NLC, and whether it was in accordance with s 203BE. There is no issue about whether the certification was given by the NLC. In determining whether the certificate of the NLC was in accordance with s 203BE, the Registrar addressed the terms of the certificate. In my judgment, that is what he was required to do. I also consider that the certificate did enable the Registrar to be satisfied that it met the requirements of s 203BE. For the reasons already given, I do not consider that the Registrar was required to go beyond that point in this matter to be satisfied the condition imposed by s 190C(4)(a) was met. Upon being so satisfied, he was not required to address the condition imposed by s 190C(4)(b).
81 The Territory contends that the NLC certification could not have provided information sufficient for the Registrar 'to be satisfied as to the issue of authorisation' particularly having regard to the description of the native title claim group in the application. In my view, that submission imposes upon the Registrar a function beyond that required by s 190C(4)(a). Section 203BE(4) requires the certification to include a statement to the effect that the representative body is of the opinion that the requirements of subs (2)(a) and (b) are met and to briefly set out the reasons for the representative body holding that opinion. The NLC certification meets those requirements. The alternative provided for in s 190C(4)(b), and the nature of the obligations of the representative body under s 203BE, indicate in my view that in the one case the responsibility for addressing the requirements of s 251B (to the extent they must be addressed when considering whether to accept an application for registration) rests in substance with the representative body, and in the other case with the Registrar. Section 203BE(2) provides emphatically that the representative body 'must not' provide its certificate unless it is of the opinion that all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it. In my judgment, section 190C(4)(a) does not leave some residual obligation upon the Registrar, once satisfied of the matters to which s 190C(4)(a) expressly refers, to revisit the certification of the representative body.
82 The contention was put that the use of the expression 'the traditional owning group' in par 5 of the certification should have triggered in the Registrar some concern that the NLC had not complied with s 203BE(2) because of the way the native title claim group was described in the application. But s 190C(4)(a) does not require the Registrar to consider the correctness of the certification by the representative body, but only its compliance with the requirements of s 203BE. In any event, I do not consider the way in which par 5 of the certification is expressed was such as to lead to the conclusion that the Registrar erred in some reviewable way by being satisfied of the condition in s 190C(4). The wording referred to might to some minds strike a note of discord with the description of the native title claim group in the application, but it does not necessarily do so. Hence, even if the Territory is correct that the Registrar had to make some critical analysis of the certification (beyond ensuring its compliance with s 203BE), it has not been shown that he erred in some reviewable way by accepting the certification on its face as an accurate certification of the fact of authorisation.
83 The Territory referred also to s 190B in the context of this submission, but no particular subsection was identified as imposing a condition upon registrability of the application which deals directly with the process of authorisation of the claimants under s 251B. I do not consider that any subsection of s 190B directly does so. There is a separate attack upon the Registrar's reasoning concerning the condition imposed by s 190B(5), dealt with below.
84 The Territory also contended that the affidavits of the claimants, filed in support of the application, contained deficiencies so that the requirement of s 190C(2) was not met, and that more generally the authorisation required by s 251B was not established.
85 Section 190C(2) requires the application to be accompanied by an affidavit sworn by the claimants dealing with the matters specified in s 62. The application was accompanied by affidavits of each of the claimants. That of Bill Harney was affirmed on 3 June 2002 and that of Alan Young was affirmed on 11 September 2002. They are in the same terms:
'1. 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.
2. I believe that none of the area covered by the application is also covered by an entry in the National Native Title Register.
3. I believe that all of the statements made in the application are true.
4. 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.
5. I am authorised, in accordance with decision making processes under traditional laws acknowledged and customs observed, to make this application.'
86 It is first contended that neither affidavit satisfies s 172(2) of the Evidence Act 1995 (Cth) because there is no indication of the source of the knowledge information and belief asserted in pars 4 and 5. There is however no indication in the affidavits that the claimants are speaking other than on their own knowledge. Whether or not that is the case may ultimately be tested in evidence if the native title determination application proceeds to trial. At present, the claimed deficiency in the affidavits is not apparent. I do not need to determine whether, for the purpose of the Registrar determining whether the application should be accepted for registration, the Evidence Act 1995 applies. Relevantly, it applies to proceedings in a federal court: s 4(1). The application was instituted in the Federal Court, and for the purposes of that proceeding clearly the Evidence Act 1995 applies. It is not clear that the registration processes under the NT Act are however part of that proceeding, or a separate proceeding by reference to the application in the Court. I incline to the latter alternative, especially as s 190D(2) makes a non-registration decision reviewable by the Court in a separate proceeding.
87 The affidavits must be as required by s 62 of the NT Act. Counsel for the Territory identified s 62(1)(a) as prescribing the relevant content of the affidavit. Each affidavit is, in terms, an assertion following expressly the terms of each of subs 62(1)(a)(i) to (iv). Section 62(1)(a)(v) requires the affidavits to state the basis on which the claimants are authorised by all the persons in the native title claim group to make the application and to deal with all matters arising in relation to it. Par 5 of each affidavit is intended to meet that requirement. In my judgment, it is not shown that the Registrar erred in this matter in being satisfied that the claimants' affidavits met that requirement. They indicate, albeit in a brief manner, the basis upon which they are each authorised to make the application. It is a basis which is contemplated by s 251B. It is also a basis which accords with the certification by the NLC under s 203BE(2). Had the Registrar been required to address the condition in s 190C(4)(b), the laconic nature of the affidavits may have been insufficient of themselves to satisfy the Registrar of that condition. Further material may have been needed by the Registrar. But he was not. In Strickland v NTR, French J at 260 when considering the adequacy of the material available to the Registrar to be satisfied of the condition imposed by s 190C(4)(b) described such affidavits as 'formulaic'. In that context, as his Honour clearly thought, they may not go far to satisfying the Registrar of that condition. But, in my judgment, in the context of s 190C(2) and s 62(1)(a), the Registrar is not shown to have erred in a reviewable way in his consideration of the affidavits.
88 I also do not accept that the Registrar erred in having regard to the affidavits of the claimants even though they were not exhibited or annexed to the application. The requirement of s 62 is that the application be accompanied by the affidavits. It was. There could be no serious submissions made that the affidavits did not refer to the application, and should not be read by reference to it. The Registrar, in my judgment, did not err in treating the affidavits as having accompanied the application and as referring to it.
89 Nor, in my view, is there merit in the attack upon the Registrar's decision because Bill Harney's affidavit is dated some time before the application was made, and before the notifications given under s 29 of the NT Act referred to in Schedule B to the application. The exigencies of distance and access, as well as the detailed requirements of ss 61 and 62, sometimes mean there will be a delay, perhaps a considerable delay, between the authorisation of applicants to make an application under s 61 and the making of the application. Schedule B is to identify the area over which native title rights and interests are claimed. It does so in part by reference to certain notices given under s 29. It does not follow that the native title claim groups were not aware of the prospect of notices being given in respect of the areas to which they refer prior to the issue of the actual notices, or that the notices do not refer to areas of land over which the native title claim group had previously decided to claim native title rights and interests.
90 At the hearing of the application proof of the composition of the native title claim group, and that it duly authorised the claimants, will have to be given if that is in issue. The matters raised by the Territory will potentially be the subject of cross-examination. Whether, in the light of the whole of the evidence, the Court is satisfied as to those matters is not to be addressed now, nor indeed to be addressed by the Registrar when considering whether to accept the application for registration. The functions of the Registrar are those prescribed in ss 190B and 190C. At the point of the Registrar's determination, in my judgment the material referred to does not demonstrate reviewable error on his part.