Plaintiffs v First Defendant

Matthew Hocking, Acting Victorian Government Solicitor

1 In this proceeding, the plaintiffs seek judicial review of a decision of the Attorney-General for the State of Victoria, under s 4 of the Traditional Owner Settlement Act 2010 (Vic), to enter into the Taungurung Recognition and Settlement Agreement (RSA). The RSA was entered into on 26 October 2018 with the Taungurung Land and Waters Council,[1] and recognises the Taungurung people as the traditional owners of the land and waters covered by the RSA. It is part of a settlement package that includes several other agreements, including the Taungurung Indigenous Land Use Agreement (Taungurung ILUA), entered into under the Native Title Act 1993 (Cth). The background to the proceeding is set out in more detail in Gardiner v Attorney-General (Gardiner No 1).[2]

2 The plaintiffs claim that the Attorney-General's decision to enter into the RSA, on the basis that the Taungurung was the 'traditional owner group' for the area covered by the RSA, involved an excess of jurisdiction and manifest legal error. They further contend that the Attorney-General acted contrary to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), in failing to give proper consideration to the plaintiffs' cultural rights under s 19(2), and by acting incompatibly with them. The plaintiffs also claim that they were denied procedural fairness in relation to the Attorney-General's decision to enter into the RSA.

3 The plaintiffs seek declarations that the Attorney-General's decision to enter into the RSA was unlawful and incompatible with their cultural rights protected by s 19(2) of the Charter. They also seek orders quashing the decision and compelling the Attorney-General to make a further decision according to law.

4 The Settlement Act contemplates that a recognition and settlement agreement may form a settlement package together with other agreements, including an Indigenous Land Use Agreement (ILUA) under Pt 2, Div 3, Sub-div C of the Native Title Act 1993 (Cth).[3] In this case, the suite of agreements that comprises the RSA includes the Taungurung ILUA. The full implementation of the RSA was contingent on the registration of the Taungurung ILUA under the Native Title Act.

5 An application to register the Taungurung ILUA was made on 17 December 2018 to the Registrar of the National Native Title Tribunal (NNTT). The application was determined by a Delegate of the Registrar, who accepted the Taungurung ILUA for registration on 30 April 2020. By that time, this proceeding was well underway. A more complete procedural history is set out in Gardiner v Attorney-General (No 2) (Gardiner No 2).[4]

6 On 5 May 2020, the Council filed a summons seeking orders to vacate the trial date of 15 June 2020, and summarily dismissing or striking out the Charter grounds in paragraphs 11-13 of the plaintiffs' further amended originating motion, dated 31 March 2020. The Council sought summary dismissal of the plaintiffs' Charter grounds on the basis that they 'may prejudice, embarrass or delay the fair trial of the proceeding and/or are otherwise an abuse of process'.

7 Following a hearing on 11 May 2020, the trial date was vacated and the Council's summons was adjourned to provide the plaintiffs with a final opportunity to particularise their Charter claims and to file the evidence on which they rely. In early June 2020, the plaintiffs filed further and better particulars of their Charter grounds, and a number of further affidavits.

8 Also in early June 2020, three of the plaintiffs - Ms Gardiner, Mr Peters and Ms Thorpe - commenced a Federal Court proceeding seeking judicial review of the Registrar's decision to accept the Taungurung ILUA for registration under s 24CK(1) of the Native Title Act.[5] In that proceeding, they seek orders that the decision of the Delegate be set aside, and that the entry relating to the Taungurung ILUA be removed or expunged from the Register of Indigenous Land Use Agreements.

9 On 7 July 2020, the Council filed an amended summons seeking to strike out or stay paragraphs 7, 11 to 13, and 13A of the originating motion, on the basis that those paragraphs are an abuse of process.[6] I heard the Council's amended summons on 27 July 2020. Its central contention was that it would be an abuse of process for the plaintiffs to continue to pursue this proceeding, given the Delegate's decision to register the Taungurung ILUA and the issues raised for determination in the Federal Court proceeding.

10 For the reasons that follow, I have concluded that this proceeding should be stayed until the determination of the Federal Court proceeding, including any appeal.

11 It is worth setting out in full the grounds relied on in the plaintiffs' originating motion:

1. The Traditional Owner Settlement Act 2010 (Vic) (the TOSA) provides that:

(1) The Attorney (as the relevant Minister), on behalf of the State, may enter into a recognition and settlement agreement with the traditional owner entity for an area of public land as to the matters set out in sections 4 to 9 (TOSA s 4).

(2) A recognition and settlement agreement may form a settlement package together with an indigenous land use agreement (an ILUA) entered into in relation to the same traditional owner group that is capable of being registered under s 24BI, 24CK or 24CL of the Native Title Act 1993 (Cth) (the NTA) (TOSA s 10(a)).

(3) A traditional owner group, in relation to an area of public land is, relevantly, a group of Aboriginal persons who may authorise, within the meaning in s 251A of the NTA, the making of an ILUA in which the group agrees not to make a native title application and that is an ILUA capable of being registered under s 24CK or 24CL of the NTA (TOSA s 3 definition of traditional owner group par (a)).

(4) A traditional owner group entity, in relation to an area of public land, is a corporation that a traditional owner group for the area has appointed to represent them in relation to that area for the purposes of the TOSA (TOSA s 3 definition of traditional owner group entity).

1. Persons holding native title in relation to the area covered by an ILUA authorise the making of the agreement within the meaning in s 251A of the NTA if:

(1) where there is a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the native title, must be complied with in relation to authorising things of that kind - the persons authorise the making of the agreement in accordance with that process (s 251A(a)); or

(2) where there is no such process - the persons authorise the making of the agreement in accordance with a process of decision-making agreed to and adopted, by the persons who hold or may hold the native title, in relation to authorising the making of the agreement or things of that kind (s 251A(1)(b)).

1. An indigenous land use agreement is capable of being registered under s 24CK or 24CL of the NTA if, inter alia:

(1) all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to the area covered by the agreement have been identified;

(2) all of the persons so identified have authorised the making of the agreement;

(NTA s 24CK(2)(c)) read with s 203BE(5)(a) and (b); s 24CL(2)(b)(iii) read with s 24CG(3)(b)).

1. In deciding to enter the Taungurung Recognition and Settlement Agreement (the RSA), the Attorney:

(1) purported to be satisfied that:

(a) the Taungurung constitute a traditional owner group (within par[t] (a) of the definition in s 3 of the TOSA) for the RSA area;

(b) the Second Defendant, Taungurung Clans Aboriginal Corporation (TCAC) (now-Taungurung Land and Waters Council (Aboriginal Corporation) (TLWCAC), then referred to as Taungurung Clans Aboriginal Corporation (TCAC), is the traditional owner group entity (as defined in s 3 of the TOSA) for the RSA area;

(2) acknowledged that the major issues on whether the Attorney should be so satisfied of the matters at (1) included the appropriateness of treating Tooterie as a Taungurung ancestor and that Ngurai-lllum is, or at the least could be, a distinct or competing traditional owner group for part of the RSA area;

(statement of reasons 28 February 2019 at [9], [25(a)(i)], [33(b)(ii), (i)]).

1. Prior to an authorisation meeting held by members of the Taungurung on 20 October 2018:

(1) At earlier meetings on 14 July 2012 and 10 August 2013 (described in the minutes as Taungurung Traditional Owner Full Group Meetings) those in attendance decided that Ngurai-lllum should be treated as a clan or sub-group of the Taungurung and decided upon the addition of certain people as Taungurung ancestors, including Tooterie (who is a Ngurai-lllum ancestor).

(2) At a meeting on 21 September 2013 (described in the minutes as a Taungurung Traditional Owner Full Group Meeting) those in attendance purported to appoint TCAC as the traditional owner group entity to represent the Taungurung People for the purposes of the TOSA as the traditional owner group (and the persons who hold or may hold native title) in relation to the RSA area.

(3) The proposed RSA, together with the proposed ILUA, presented at the 20 October 2018 meeting provided that the Taungurung People as the traditional owner group (and as the persons who hold or may hold native title) in relation to the RSA area consist of Aboriginal persons who are descended from 12 apical ancestors identified as being associated with Taungurung country that included Tooterie (who is a Ngurai-lllum ancestor).

1. On 20 October 2018 members of the Taungurung held an authorisation meeting, the draft minutes for which record, sequentially:

(1) verification of attendees entitled to participate in the authorisation meeting as descendants of the 12 apical ancestors checked against a genealogy (item 6);

(2) adoption of an agreed decision-making process for the meeting and authorisation of an ILUA (resolution 2);

(3) removal of Tooterie as an apical ancestor from the RSA agreement documents (resolution 10);

(4) authorisation of the making of the Taungurung ILUA and the RSA agreements, and of an application to have the ILUA registered under the NTA (resolution 13);

(5) authorisation of TCAC to be the traditional owner group entity, on behalf the people who hold or may hold native title in the ILUA area (being the same as the RSA area), for the purposes of managing the benefits under the ILUA and the TOSA, and to formally enter the agreements (resolution 15);

and no action was taken to limit authorisation to the descendants of the remaining 11 apical ancestors and to stop and reconvene the authorisation meeting accordingly.

(1) There:

(a) was not a (single) group (in terms of the TOSA definition of traditional owner group) in relation to the RSA area:

(i) who may authorise within the meaning in s 251A of the NTA the making of an indigenous land use agreement;

(ii) who could appoint a traditional owner group entity for the RSA area to represent the group for the purposes of the TOSA;

(b) could not within the meaning in s 251A of the NTA be a single authorising decision, as purported to occur at the 20 October 2018 meeting, binding both the Taungurung and Ngurai-lllum.

(2) Alternatively:

(a) those remaining in the re-constituted Taungurung group descended from the 11 apical ancestors could not comprise all of the persons who hold or may hold native title in relation to the RSA area and who may authorise within the meaning in s 251A of the NTA the making of an indigenous land use agreement; or

(b) if the Tooterie descendants are not, or are not considered to be, persons who hold or may hold native title in relation to the RSA area, authorisation of the Taungurung ILUA was purportedly given by persons other than those who hold or may hold native title through those persons at the 20 October 2018 meeting.

1. The Attorney was required by the terms of the TOSA, but failed to consider, whether:

(1) The Taungurung, as re-constituted at the authorisation meeting on removal of Tooterie, authorised the RSA within the meaning in s 251A of the NTA:

cf statement of reasons [9(a)], [12(a)], [25(a)], [30]-[31], [33(g)].

(2) Following re-constitution of the Taungurung, TCAC (now TLWCAC) was a traditional owner group entity that was appointed by a traditional owner group to represent the group: cf statement of reasons [9(b)], [12(b)], [30], [33(b)].

1. 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.
2. 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.
3. 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)].
4. 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.
5. 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.

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.

12 It can be seen that the originating motion raises several distinct grounds of review. All of them relate to the plaintiffs' central claim that the Taungurung are not the traditional owners of the entire area covered by the RSA. Their case is that they are elders of the Ngurai Illum Wurrung people and the Waywurru people, and that Ngurai Illum Wurrung country and Waywurru country has wrongly been included in the RSA area.

13 The plaintiffs' first contention is that the Attorney-General's decision was beyond jurisdiction because the Taungurung were not a 'traditional owner group' in respect of the RSA area for the purposes of the Settlement Act. They argue that there was not a single group who could authorise, within the meaning in s 251A of the Native Title Act, an ILUA for the RSA area. This contention is made in paragraphs 7 to 10 of the originating motion, and hinges on paragraph 7. I will refer to this as the plaintiffs' jurisdictional fact ground.

14 Paragraphs 11 to 13 set out what is referred to as the Charter grounds. The plaintiffs' contention that the Attorney-General acted incompatibly with their cultural rights under s 19(2) of the Charter, and failed to give proper consider to those rights, is the subject of the further and better particulars filed by the plaintiffs on 1 June 2020. In Gardiner (No 2), I explained why I was not inclined to summarily dismiss the Charter grounds, as the Attorney-General had submitted I should.[7]

15 Paragraph 13A is a claim that the plaintiffs were denied procedural fairness, because they did not have access to critical documents, in particular the Part A Threshold Statement submitted on behalf of the Taungurung, and did not have an opportunity to make submissions about them. The plaintiffs' procedural fairness ground is discussed in Gardiner (No 2),[8] and the significance of the Part A Threshold Statement is explained in Gardiner (No 1).[9]

Settlement Act and Native Title Act

16 The Settlement Act provides an alternative mechanism for the resolution of native title claims under the Native Title Act, through the making of agreements with traditional owners that include rights equivalent to native title. A recognition and settlement agreement entered into under the Settlement Act may form a settlement package together with an ILUA entered into under the Native Title Act.[10] While it does not require traditional owners to satisfy the stringent test for native title that applies under the Native Title Act, the Settlement Act defines 'traditional owner group' by reference to provisions of the Native Title Act.

17 Section 3 of the Settlement Act includes the following definition of 'traditional owner group':

traditional owner group, in relation to an area of public land, means

(a) a group of Aboriginal persons who may authorise (within the meaning in section 251A of the Native Title Act) the making of an indigenous land use agreement with the Minister, on behalf of the State -

(i) for the purposes of the settlement of any application of a kind listed in the Table to section 61 of the Native Title Act or in which the group agrees not to make an application of that kind; and

(ii) that is capable of being registered under section 24CK or 24CL of the Native Title Act; or

(b) if there are native title holders (within the meaning of the Native Title Act) in relation to the area, the native title holders; or

(c) in any other case, a group of persons who are recognised by the Attorney-General, by notice published in the Government Gazette as the traditional owners of the land, based on Aboriginal traditional and cultural associations with the land;

18 Before deciding to enter into the RSA with the Taungurung, the Attorney-General was satisfied that the Taungurung constitute a 'traditional owner group', as defined in paragraph (a) of the definition in s 3, for the area of public land to be covered by the RSA. That paragraph of the definition draws on provisions of the Native Title Act related to the registration of ILUAs, as well as the definition of 'authorise' in s 251A.

19 An 'area agreement' is one form of ILUA, governed by Pt 2, Div 3, Sub-div C of the Native Title Act. Section 24CK provides for the registration of area agreements:

Registration only if conditions satisfied

(1) If the application for registration of the agreement was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a) and the conditions in this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.

First condition

(2) The first condition is that:

(a) no objection under section 24CI against registration of the agreement was made within the notice period; or

(b) one or more objections under section 24CI against registration of the agreement were made within the notice period, but they have all been withdrawn; or

(c) one or more objections under section 24CI against registration of the agreement were made within the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the Registrar that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned.

Second condition

(3) The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement.

Matters to be taken into account

(4) In deciding whether he or she is satisfied as mentioned in paragraph (2)(c), the Registrar must take into account any information given to the Registrar in relation to the matter by:

(a) the persons making the objections mentioned in that paragraph; and

(b) the representative Aboriginal/Torres Strait Islander bodies that certified the application;

and may, but need not, take into account any other matter or thing.

20 Section 24CL provides for the registration of an area agreement not certified by a representative Aboriginal/Torres Strait Islander body, and is not relevant here.

21 Section 24CG(1) enables a party to an area agreement to apply to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements. Section 24CG(3) provides that the application must be accompanied by either a certificate or a statement. The application to register the Taungurung ILUA was accompanied by a certificate under s 24CG(3)(a), which provides:

Also, the application must either:

(a) have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 203BE(1)(b) in relation to the area; or

(b) ...

22 Representative bodies perform various functions under the Native Title Act that are integral to the statutory scheme, including the certification functions under s 203BE.[11] These include certifying, in writing, applications for registration of ILUAs relating to areas of land or waters wholly or partly within the area for which the body is a representative body.[12] Section 203BE(5) provides:

A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:

(a) all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and

(b) all the persons so identified have authorised the making of the agreement.

Note: Section 251A deals with authority to make the agreement.

23 Section 251A defines when native title holders authorise the making of an ILUA:

(1) For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorise the making of the agreement if:

(a) where there is a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind - the persons authorise the making of the agreement in accordance with that process; or

(b) where there is no such process - the persons authorise the making of the agreement in accordance with a process of decision-making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.

(2) Without limiting subsection (1), when authorising the making of the agreement, a native title claim group may do either or both of the following:

(a) nominate one or more of the persons who comprise the registered native title claimant for the group to be a party or parties to the agreement;

(b) specify a process for determining which of the persons who comprise the registered native title claimant for the group is to be a party, or are to be parties, to the agreement.

24 Returning to the process for registration of an area agreement, s 24CH sets out the notice requirements, and s 24CI provides for objections against registration. At the end of the notice period, the Registrar must decide whether or not to register the agreement on the Register.[13]

25 When the details of an ILUA are entered on the Register, the ILUA has effect as if it were a contract between the parties to the agreement. It also binds all persons holding native title in relation to any of the land or waters in the area covered by the ILUA, who are not already parties to the agreement.[14]

26 The effect of registration of an ILUA is to resolve all native title claims in respect of the agreement area, providing finality and legal certainty. As Mortimer J explained in McGlade v Native Title Registrar:[15]

Registration is the vital statutory step in the ILUA process. It is what gives the security to which the Explanatory Memorandum refers. With registration comes statutory enforceability, including a significant departure from general law principles of privity, so that all those with native title rights and interests (actual or claimed) in an area covered by an ILUA will be bound by the outcome of the ILUA process: see s 24EA(1)(b). The attributes of finality, certainty, and enforceability intended to flow from registration are critical to stable, long-term realignment of proprietary and other interests affected by an ILUA.

27 The registration of an ILUA also has the effect of curing any defect in the relevant representative body's certification that the requirements of s 203BE(5) were met in relation to the ILUA.[16]

28 Section 199C of the Native Title Act sets out circumstances in which the Registrar must remove the details of an ILUA from the Register. Relevantly here, s 199C(1)(c) provides:

Subject to subsection (1A), the Registrar must remove the details of an agreement from the Register if:

...

(c) in any case:

(i) a party advises the Registrar in writing that the agreement has expired, and the Registrar believes, on reasonable grounds, that the agreement has expired; or

(ii) all the parties advise the Registrar in writing that they wish to terminate the agreement; or

(iii) the Federal Court, under subsection (2), orders the details to be removed.

The Federal Court may make an order under s 199C(2), on application by a party to the agreement or by a representative body for the area covered by the agreement, if it is satisfied that a party would not have entered into the agreement but for fraud, undue influence, or duress by any person.[17]

29 Additionally, a decision by the Registrar to register an ILUA is subject to judicial review by the Federal Court, under both the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth). The validity of the Registrar's decision is not a matter over which the Supreme Court of Victoria has any jurisdiction.

30 On 17 December 2018, the State applied to the Registrar, under s 24CG(1) of the Native Title Act, for the registration of the Taungurung ILUA. The application was certified by the First Nations Legal and Research Services (FNLRS), which is the representative Aboriginal/Torres Strait Islander body for the area covered by the agreement. The Registrar gave notice of the application and, between 24 April and 20 June 2019, received a number of objections against the registration of the agreement from persons claiming to hold native title in the agreement area. The objectors included each of the plaintiffs.

31 On 30 April 2020, the Delegate accepted the Taungurung ILUA for registration, and published her reasons for decision. Critically, she took the approach that the onus was on the objectors to satisfy her that the requirements of s 203BE(5) were not met.[18] The reasons for decision set out in detail why none of the objectors had satisfied the Delegate that all reasonable efforts had not been made to ensure that all persons who hold or may hold native title in relation to the agreement area had been identified, or that all persons so identified had not authorised the making of the agreement in accordance with s 251A. As a result, the Delegate was not satisfied that the certification requirements in s 203BE(5) had not been met.

32 On 11 June 2020, three of the plaintiffs, Ms Gardiner, Mr Peters, and Ms Thorpe, together with a fourth applicant, Gary Murray, filed an application with the Federal Court, seeking judicial review of the Delegate's decision under the ADJR Act. The respondents to the Federal Court proceeding are the Council, the State,[19] and the Registrar.

33 In the Federal Court proceeding, the applicants seek orders that the decision of the Delegate be set aside, and that the entry relating to the Taungurung ILUA be removed or expunged from the Register. The grounds on which they seek those orders are set out in the application, as follows:

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.

34 I was informed that the affidavits filed by the applicants in the Federal Court proceeding are substantially the same as affidavits filed by the plaintiffs in this proceeding in November 2019, but do not include their further evidence filed in June 2020 in support of their Charter and procedural fairness grounds in this proceeding.

35 A first directions hearing was held in the Federal Court proceeding on 7 July 2020. Mortimer J ordered that the matter be adjourned to a date to be fixed, after determination of the strike out application filed by the Council in this proceeding.

36 It was common ground that the Court has inherent power to dismiss or stay a proceeding, or any part of a proceeding, that is an abuse of process.[20] The plaintiffs emphasised, and I accept, that the power should be exercised sparingly, with caution, and only in a clear case.

37 An established category of abuse of process is where the use of the Court's procedures serves to bring the administration of justice into disrepute.[21] One instance in which this may occur is where a party brings more than one proceeding involving the same or substantially overlapping issues.[22] The Council submitted that the evaluation of what amounts to an abuse of process must have, at its core, 'a concern for the systemic protection of the integrity of the court within an integrated system of justice'.[23] The relevant public interest is, simply, 'the timely and efficient administration of civil justice'.[24]

38 The Council contended that the registration of the Taungurung ILUA over the objections of the plaintiffs, and the pursuit of the Federal Court proceeding by three of the plaintiffs, make the continuation of this proceeding an abuse of process. It submitted that the two proceedings involve the same issues, and that the integrity of this Court would be damaged 'by allowing two proceedings in two courts between the same parties to be simultaneously considering, and then determining, the same issues'.[25] It argued that the Court should not indulge 'what is, in effect, a claim to native title by the Plaintiffs' over land that is now the subject of a registered ILUA between the State and the Taungurung.[26]

39 The overlap in the issues in the two proceedings identified by the Council was not limited to whether the Taungurung were a 'traditional owner group' for the purposes of the Settlement Act. It argued that the procedural fairness ground in the Federal Court proceeding is indistinguishable from the procedural fairness ground in this proceeding, because both concern the non-disclosure of the Part A Threshold Statement, and in both cases there is a question whether the non-disclosure was material to the outcome. The Council also submitted that the legal unreasonableness ground in the Federal Court proceeding covered the same ground as the Charter grounds in this proceeding.

40 The Council did not suggest that the two proceedings were brought improperly or in bad faith. Its position was simply that there was 'a fundamental problem in having the two proceedings running side by side where the issue in one forecloses the issue in the other'.[27] For that reason, the Council submitted, the offending paragraphs of the originating motion should be either struck out or stayed, temporarily or permanently.

41 The Attorney-General submitted that paragraph 7 of the originating motion, and the paragraphs that rely on it, should be struck out. Her position was that the registration of the Taungurung ILUA means that, as a matter of fact, the Taungurung people 'are (at the very least) capable of registering an ILUA and must thereby satisfy the definition of traditional owner group' in the Settlement Act.[28] The registration of the Taungurung ILUA over the plaintiffs' objections is conclusive of that issue, subject only to federal judicial review. The Federal Court is the appropriate forum for judicial review of the Delegate's decision, and 'it is invidious and inimical to the proper administration of justice for the same issue to be raised by the same parties in parallel in two different Courts'.[29]

42 Further, the Attorney-General pointed out that, while the registration of the Taungurung ILUA stands, there are a variety of difficulties with the plaintiffs' Charter claim and the relief sought by them in this proceeding. She argued that, while the Taungurung ILUA is registered, the only conclusion that can be reached is that the Taungurung constitute a traditional owner group within paragraph (a) of the definition in the Settlement Act. This Court could not set aside the registration of the Taungurung ILUA, and the declarations sought by the plaintiffs would be inutile.

43 The plaintiffs submitted that there is no abuse of process because the two proceedings are distinct challenges to different decisions, made at different times, by different statutory decision makers. They argued that the issues raised in this proceeding could only be raised in the Supreme Court, while the issues raised in the Federal Court proceeding could only be raised in that court. They rejected the contention that there is any overlap between the legal issues in the two proceedings, and pointed out that the parties are not identical.

44 Far from conceding that the registration of the Taungurung ILUA is determinative of its challenge to the Attorney-General's determination that the Taungurung were a traditional owner group for the purposes of the Settlement Act, the plaintiffs argued that evidence of the registration is inadmissible in this proceeding. They submitted that in a judicial review proceeding the parties are confined to the evidence that was before the decision-maker, and that evidence of later events is irrelevant.[30]

45 During oral submissions, senior counsel for the plaintiffs conveyed his instructions that the commencement of the Federal Court proceeding was dictated by the time limit for commencing a proceeding under the ADJR Act, and that the intention of the applicants in that proceeding is to put it on hold until this proceeding is heard and determined. Their rationale for seeking to have the two proceedings determined in that order is that the Attorney-General's decision to enter into the RSA, the subject of this proceeding, was made some 18 months before the Delegate's decision that is the subject of the Federal Court proceeding. Further, they submitted that determination of this proceeding may well render the Federal Court proceeding unnecessary.

46 The plaintiffs were correct in their submission that the two proceedings are distinct. They concern two separate decisions, made under two different statutes, by two different decision-makers. This judicial review proceeding is properly brought in the Supreme Court of Victoria. No other court has jurisdiction to review the lawfulness of the Attorney-General's decision, under s 4 of the Settlement Act, to enter into the RSA. The Federal Court is the proper forum in which to seek judicial review of the Delegate's decision to accept the Taungurung ILUA for registration; this Court does not have that jurisdiction.

47 I do not accept the Council's submission that the procedural fairness grounds in the two proceedings are the same, or even that there is a significant overlap. As outlined in Gardiner (No 1), the Part A Threshold Statement was a 'substantial and foundational' document for the negotiation of the RSA under the Settlement Act.[31] It was provided to the State on behalf of the Taungurung to initiate negotiations, and informed the Attorney-General's decision to enter into the RSA. The material before the Delegate did not include the Part A Threshold Statement, and she did not accept the objectors' submission that she should require production of the Statement from FNLRS.[32] Whatever the procedural fairness argument is in the Federal Court proceeding, it is clearly not that the Delegate made her decision in reliance on information in the Part A Threshold Statement that was not available to the applicants.

48 Nor do I accept that the Charter grounds in this proceeding are the same as the legal unreasonableness ground in the Federal Court proceeding. Neither involves merits review; in each case, the court's task is strictly supervisory.[33] The Charter grounds in this proceeding are the subject of detailed particulars, filed by the plaintiffs on 1 June 2020 in response to my order of 11 May 2020. They involve claims by each of the plaintiffs that the Attorney-General's decision to enter into the RSA with the Taungurung adversely affected their enjoyment of their identity and culture, and their distinctive spiritual, material or economic relationship with the Ngurai Illum Wurrung and the Waywurru disputed land within the RSA area. This does not resemble a claim that the Delegate's decision to accept the Taungurung ILUA for registration lacked an evident or intelligible basis, or was manifestly unreasonable, or was the product of grossly illogical reasoning.[34]

49 However, there is a significant overlap between the jurisdictional fact ground in this proceeding and the issues for determination in the Federal Court proceeding. In this case, the plaintiffs contend that the Attorney-General's decision was made without jurisdiction because the Taungurung were not a 'traditional owner group' - that is, they were not a group of Aboriginal persons who could authorise the making of an ILUA with the State that was capable of being registered under s 24CK of the Native Title Act. The applicants in the Federal Court proceeding make the essentially same argument, in support of their claim that the Taungurung ILUA was not validly registered. These issues must be determined in both proceedings. The overlap between the issues is unaffected by the fact that the parties to the two proceedings are not identical.

50 As the Attorney-General submitted, the registration of the Taungurung ILUA is a complete answer to the plaintiffs' jurisdictional fact ground. It establishes that the Taungurung were, as a matter of fact, a group of Aboriginal persons who could authorise the making of an ILUA with the State that was capable of being registered under s 24CK of the Native Title Act.

51 I reject the plaintiffs' submission that evidence of the registration of the Taungurung ILUA is inadmissible in this proceeding. Evidence relevant to the existence of a jurisdictional fact is a recognised exception to the general rule that the evidence in a judicial review proceeding should be confined to the evidence that was before the decision-maker.[35] The evidence is also relevant to the question of relief in this proceeding.

52 I consider that there is such a substantial overlap between the jurisdictional fact ground in this proceeding and the issues in the Federal Court proceeding that it would be inimical to 'the timely and efficient administration of civil justice'[36] for those issues to be tried in both proceedings. After some hesitation, I have concluded that those issues are best determined in the Federal Court proceeding, and that this proceeding should be stayed until that has occurred. There are two reasons for that conclusion.

53 First, it would be premature to strike out the jurisdictional fact ground in this proceeding while there is still a question about the validity of the Delegate's decision to accept the Taungurung ILUA for registration. The strength of the jurisdictional fact ground will rise or fall, depending on the outcome of the Federal Court proceeding. If that proceeding is determined against the applicants, the Taungurung ILUA will remain on the Register, and the jurisdictional fact ground will fall away. If the applicants succeed in the Federal Court, and the Taungurung ILUA is removed from the Register, the plaintiffs in this case may succeed on their jurisdictional fact ground. Much will depend on the reasons for any order that is made by the Federal Court, and any subsequent decision of the Registrar.

54 Second, the registration of the Taungurung ILUA has consequences for the relief that the plaintiffs might obtain in this proceeding, if they succeed in establishing any of their grounds. The Taungurung ILUA is an integral component of the RSA settlement package. While it remains on the Register, it binds everyone with actual or claimed native title rights and interests over the agreement area, including the plaintiffs. None of the orders sought by the plaintiffs in the originating motion would have the effect of removing it from the Register. That could only occur as an outcome of the Federal Court proceeding, or in accordance with s 199C of the Native Title Act. It follows that I do not accept that determination of this proceeding would necessarily determine whether the Taungurung ILUA should remain on the Register.

55 I have not overlooked the plaintiffs' submission that this proceeding should be heard and determined first, both because it was commenced first, and because it concerns the prior decision of the Attorney-General to enter into the RSA, including the Taungurung ILUA. As I have explained, the registration of the Taungurung ILUA gives it legal effect, independent of the validity of the Attorney-General's decision. Although the sequence of filing is relevant for a court considering which of two competing proceedings should continue, there is no 'first filed rule' to be applied.[37] The question of which proceeding should go first is to be determined by reference to broader case management principles, in particular what will best facilitate the 'just, efficient, timely and cost-effective resolution of the real issues in dispute'.[38]

56 In this case, I consider that this is best achieved by waiting until the Federal Court has determined the issues, beyond this Court's jurisdiction, concerning the validity of the registration of the Taungurung ILUA under the Native Title Act. Once that has occurred, and there is certainty about the status of the Taungurung ILUA, the issues that remain in this proceeding can be determined.

57 The proceeding will be stayed until after the determination of Federal Court proceeding VID 384/2020, including any appeal. The Council's amended summons filed 7 July 2020 is otherwise dismissed.

58 I will hear the parties on the question of the costs of the summons.

[1] Formerly named the Taungurung Clans Aboriginal Corporation.

[2] [2020] VSC 224 (Gardiner No 1), [1]-[5].

[3] Traditional Owner Settlement Act 2010 (Vic), s 10.

[4] [2020] VSC 252 (Gardiner No 2), [2]-[8], [60]-[63]. See also Gardiner No 1, [6]-[9].

[5] Federal Court of Australia proceeding VID 384/2020.

[6] The Council no longer pressed its contention that the plaintiffs' Charter grounds were embarrassing.

[9] Gardiner (No 1), [16]-[31], [38]-[40].

[11] In relation to the role of representative bodies under the Native Title Act, see MT v Western Australia [2013] FCA 1302, [35]-[43]; Northern Land Council v Quall (2019) 367 ALR 216, [129]-[131] (Griffiths and White JJ), [155] (Mortimer J).

[12] Native Title Act 1993 (Cth), s 203BE(1)(b).

[13] Native Title Act, s 24CJ.

[14] Native Title Act, s 24EA. See also, McGlade v Native Title Registrar [2017] FCAFC 10; (2017) 251 FCR 172, [13] (North and Barker JJ), [442]-[444] (Mortimer J).

[16] Kemppi v Adani Mining Pty Ltd (No 2) (2019) 271 FCR 423, [99] (Rares ACJ and Robertson J), [111] (Perry J).

[17] Native Title Act, s 199C(3).

[18] Citing Bright v Northern Land Council [2018] FCA 752, [49]; Kemppi v Adani Mining Pty Ltd (No 2) , [79], [84] (Rares ACJ and Robertson J); and McGlade, [230].

[19] The applicants originally named the Attorney-General as the second respondent. The State was substituted as the second respondent by order of Mortimer J on 7 July 2020.

[20] The plaintiffs referred to the helpful summary of the relevant principles by Robson J in Re AWB Ltd (No. 10) [2009] VSC 566; (2009) 76 ACSR 181, [264]. See also Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 23.01(1)(b).

[21] UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77, [1] (Kiefel CJ, Bell and Keane JJ), [126] (Gordon J).

[22] UBS AG v Tyne, [45]-[46] (Kiefel CJ, Bell and Keane JJ).

[23] Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 272 A Crim R 69, [249] (Edelman J).

[24] UBS AG v Tyne, [72] (Gageler J).

[25] Second Defendant's submissions in support of the amended summons dated 7 July 2020, [16].

[26] Second Defendant's submissions in support of the amended summons dated 7 July 2020, [15].

[27] Transcript, 27 July 2020, 10:21-24.

[28] Submissions of the First Defendant in response to the Second Defendant's summons of 7 July 2020, [18] (emphasis omitted).

[29] Submissions of the First Defendant in response to the Second Defendant's summons of 7 July 2020, [23].

[30] Relying on Mackenzie v Head, Transport for Victoria [2020] VSC 328, [65]-[72].

[32] Taungurung Settlement ILUA Registration Decision dated 30 April 2020, [94].

[33] In relation to judicial review under the Charter, see PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373, [313]-[317]. In relation to judicial review on the ground of legal unreasonableness, see e.g. Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158, [59].

[35] Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, [454], [458]; Chandra v Webber [2010] FCA 705; (2010) 187 FCR 31, [40], [43].

[36] UBS AG v Tyne, [72] (Gageler J).

[37] Wigmans v AMP Ltd [2019] NSWCA 243; (2019) 373 ALR 323, [59]-[69] (Bell P).

[38] Civil Procedure Act 2010 (Vic), s 7(1).