Plaintiffs v First Defendant

Plaintiffs v First Defendant - [2020] VSC 252 - VSC 2020 case summary — Zoe

[23]

The decision by the Attorney to enter the RSA was made without or in excess of jurisdiction by his misapprehension of the statutory criteria of what is a traditional owner group and traditional owner group entity under the TOSA.
Further, the decision to enter the RSA is affected by a legal error on the face of the record in the Attorney acting on the view that the Ngurai-lllum were best represented by the Taungurung group case concept, for reasons including that there was allegedly no prospect of the Ngurai-lllum being a group capable of entering into its own separate RSA (statement of reasons [25(a)(i)]), when the correct application of the TOSA is whether or not there is a traditional owner group and traditional owner entity (as defined in s 3 of the TOSA) in relation to the relevant area of public land.
Further, in deciding to enter the RSA the Attorney considered that it was not appropriate to excise the areas of land from the RSA area which were disputed by competing traditional owner groups on the basis that to do so would place an unfavourable limitation on the Taungurung's rights under s 19(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic): statement of reasons [33(i)].
In doing so, the Attorney, contrary to s 38(1) of the Charter, acted in a way that was incompatible with, or failed to give proper consideration to, the human rights protected by s 19(2)(a) and (d) of the Charter that Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community, to enjoy their identity and culture, and to maintain their distinctive spiritual, material and economic relationship with the land with which they have a connection under traditional laws and customs, as each traditional owner group is a community for the purposes of s 19 of the Charter and the exercise of power under the TOSA.
By ss 38 and 39 of the Charter the plaintiffs seek relief in respect of the decision to enter the RSA on the ground of unlawfulness arising because of the Charter in addition to the decision being unlawful on the grounds arising under the TOSA.

[27]

Procedural fairness

13A. In reaching the Decision, the First Defendant was obliged to, but failed to:

(a) disclose to the plaintiffs Documents that were and/or Information that was credible, relevant and significant to the decision-making process he was undertaking;

Particulars

As far as the plaintiffs can presently say, the Documents include:

(i) a "Part A Threshold Statement" prepared by FNLRS; and

(ii) at least twelve (12) briefs prepared for the First Respondent.

The plaintiffs have not had access to any of these Documents. Further particulars may be provided following discovery.

As far as the plaintiffs can presently say, the Information comprises the information recorded in the Documents, and such other information as informed the Decision but which has not been provided to them. Further particulars may be provided following discovery.

(b) disclose to the plaintiffs the substance of the Documents and/or the Information that was credible, relevant and significant to the decision-making process he was undertaking

Particulars

The plaintiffs refer to and repeat the particulars sub-joined to paragraph 13A(a), above.

(c) disclose to the plaintiffs the substance of the Documents and/or the Information that was credible, relevant and significant to the decision-making process he was undertaking, to the extent those Documents or that Information (or the substance of them) was adverse to their interests;

Particulars

The plaintiffs refer to and repeat the particulars sub-joined to paragraph 13A(a), above.

(d) put the plaintiffs on notice of how (if at all) their interests were to be considered in the decision-making process he was undertaking; and

(e) accord the plaintiffs any or any sufficient opportunity;

(i) to make submissions; and/or

(ii) to make submissions formulated in light of or informed by the Documents and/or the Information.

Particulars

The plaintiffs refer to and repeat the particulars sub-joined to paragraph 13A(a), above.

And the failures identified at sub-paragraphs (a)-(e) above, together and/or in any combination, deprived the plaintiffs of the possibility of a successful outcome.

First defendant unlawfully acted through NTU

13B. In reaching the Decision, the First Defendant relied entirely on the Native Title Unit within his Department (the NTU) to discharge his procedural fairness obligations under TOSA s 4 despite:

(a) the lack of any, or any proper, delegation of the Attorney's functions under TOSA s 4 to the NTU; and

(b) the lack of any, or any proper, authorisation of the NTU so to act.

NTU's 'Guidelines' - no lawful basis

13C. Further or alternatively to ground 13B, in reaching the Decision. the NTU merely applied its own 'Guidelines' document, despite:

(a) the Guidelines having no legal force, effect or status;

(b) the Guidelines being in the nature of an internal working document;

(c) the Guidelines not having been produced by the repository of the power in TOSA s 4 (the First Defendant) -

With the effect that the Decision was the result of an unlawfully fettered decision-making process.

[72]

(a) The plaintiffs effectively dispute the merits of the Attorney-General's decision that the Taungurung are the traditional owner group for the RSA area. They impermissibly invite the Court to find that they, and not the Taungurung, are the traditional owners of the disputed parts of the RSA area. That is properly a matter for the Attorney-General to determine, and not for the Court to adjudicate in a judicial review proceeding.

(b) While the Charter can require an assessment that is closer to merits review than traditional judicial review,[22] the Court could only undertake the proportionality analysis required by s 7(2) if it is satisfied that the decision engaged and limited the plaintiffs' cultural rights protected by s 19(2).

(c) Section 19(2) of the Charter recognises that Aboriginal persons have cultural rights, with other members of their community. It does not confer a basis for the resolution of disputes between Aboriginal groups, nor the conferral of land rights to individual plaintiffs.

(d) The Court could not be satisfied that the decision to enter into the RSA engaged or limited the plaintiffs' s 19(2) rights, because that would require the Court to find that they had traditional owner rights in respect of disputed parts of the RSA Area. It was for the Attorney-General, not the Court, to determine who were the traditional owners for the purposes of the Settlement Act. The plaintiffs are impermissibly attempting to reopen that question, after an exhaustive six-year process.

(e) The Charter grounds necessitate the Attorney-General putting on evidence to justify that determination. This evidence is likely to be extensive and would replicate aspects of a contested native title hearing - the very thing that the Settlement Act is designed to avoid. The hearing would take considerably longer than the current estimate of five days.

(f) In light of the legal and procedural difficulties of the plaintiffs' Charter grounds, it is appropriate that they be summarily dismissed under s 63 of the Civil Procedure Act.

At a glance

Court

Decision date

Before

Source

Judgment (124 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (12)