Plaintiffs v First Defendant

Plaintiffs v First Defendant - [2020] VSC 516 - VSC 2020 case summary — Zoe

[31]

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.

[32]

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.

[64]

The decision and the reasons for decision involved the following error or errors of law:

2.1 the Applicants were denied procedural fairness in being denied access to the Threshold Statement (reasons [94]).

2.2 The Delegate erred in law in imposing the onus upon the Objectors. The Delegate correctly cited authority that her task was "to consider whether all reasonable efforts had been made to ensure that those who hold or may hold native title over [the agreement area] have been identified" [Bright v Northern Land Council 2018 FCA 752] (reasons [83]) but did not consider all the evidence relevant to that question and that the Delegate was bound to consider in making her decision. Instead, the Delegate placed an onus upon the Applicants to satisfy her "that all reasonable efforts have not been made would require the objectors to show that the efforts to ensure all persons who hold or may hold native title in the area have been identified were wanting such that the efforts and subsequent views cannot be said to be reasonably based" (reasons [85]). In so doing, she misconstrued what the notion of "onus" means in the law relating to administrative decisions and imposed on the Applicants a stringent requirement of disproof which was impermissible.

2.3 The Delegate asked herself the wrong questions, by accepting as determinative, the reliance of First Nations for its notification and certification functions upon its Database of more than 150 people (reasons [88], and [94], and notice being sent to only to those people (reasons [130] and [131]) in circumstances where, in accordance with the relevant provisions of the Act, the correct question on which the Delegate had to be satisfied was whether "all reasonable efforts" were made to notify to all persons who hold or may hold Native Title. There was a live and central factual issue that was required to be determined by the Delegate as to whether there were a group or groups of indigenous people not on the Database but who reasonably claimed to hold native [title] rights and interests over parts for the area the subject of the ILUA that had been ignored or overlooked in the authorisation process. The Delegate failed to engage this issue or determine it.

2.4 The Delegate erred in accepting the submissions of First Nations as to research into the composition of the landowning group and the apical ancestors of the group (reasons [86] and [87]) as determinative of whether a broader definition that of "all persons who hold or may hold Native Title" was the correct enquiry. That enquiry was required to be conducted on the basis of evidence which was not put before the Delegate and on which the Applicants were given no opportunity (as procedural fairness required) to address in their submissions.

2.5 The Delegate erred in categorising the Applicants' Affidavit evidence as "assertions" when that evidence was "sworn evidence" and was not challenged (reasons [69]). That Affidavit evidence was directly relevant to the identity of the 180 people who had provided proxies (Gardiner Affidavit [23], [32]), Peters Affidavit [42], Thorpe Affidavit [26]) the validity of some of the identified Ancestors and their acknowledged areas of country (Gardiner Affidavit [20] , Peters Affidavit [36], [37], [52], [54], [55], Thorpe [5], [12], [19]) the deficiencies of the notice process for the Authorisation meeting (Peters Affidavit [31], [41], [46] Gardiner Affidavit [29], Thorpe Affidavit [14], [24], [39]. By reason of the approach to those affidavits taken by the Delegate she failed to take the information contained in them into account in any realistic sense, as she was bound to do.

2.6 The Delegate erred in accepting submissions from First Nations as to the conduct of the authorisation meeting without any or any reliable evidence noting that "specific details of the process has not been provided" (reasons [140]) and not taking into account as relevant considerations the Affidavit evidence of the Applicants with respect to that process.

2.7 The Delegate's decision was also both unreasonable and irrational.

At a glance

Court

Decision date

Before

Source

Judgment (121 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (9)