CONSIDERATION
17 In my judgment, the first of the identified grounds of review must fail. That is because s 190A(6) directs the Registrar not to accept the claim for registration unless all of the conditions specified in ss 190B and 190C are met. It does not provide the Registrar with any discretion to accept the claim for registration if the majority of the requirements of those provisions are met.
18 The delegate of the Registrar identified in her decision the information which she had considered. It was extensive information recorded in files and data bases, and included correspondence from the Northern Land Council, from the Solicitor for the Northern Territory, and extracts from the Kenbi Land Claim Report as well as material presented by the applicant.
19 Section 190A directs the Registrar, in considering a claim, to have regard to a range of information in the following terms:
"(3) In considering a claim under this section, the Registrar must have regard to:
(a) information contained in the application and in any other documents provided by the applicant; and
(b) any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and
(c) to the extent that it is reasonably practicable to do so in the circumstances - any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar's opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim;
and may have regard to such other information as he or she considers appropriate."
20 The delegate's reasons for decision indicate that she also had regard to earlier decisions of the Court dealing with the same issue as that arising in the current native title determination application, that is the composition of the native title claim group as presented by the applicant in other claims but in almost identical terms to the present application. It appeared from the applicant's oral submissions that his concern about the use, or wrongful use, of "evidence provided by other parties" was essentially the delegate's use of information in the Kenbi Land Claim Report. He complained that the information referred to by the Aboriginal Land Commissioner about the nature of the Danggalaba group and about the Larrakia group was erroneous, and the findings of the Aboriginal Land Commissioner on those matters were erroneous. He complained in submissions about the process by which evidence was given during the Kenbi Land Claim hearing, although he did not specifically adduce on this hearing evidence himself other than that which was in the application and to which reference has been made above. In effect, he disputed the finding that the Kulumbiringin (or the Danggalaba) are a sub-group of the Larrakia native title claim group, and asserted that they are a native title claim group in their own right. He did not otherwise identify any evidence provided by other parties of which, he complained, the delegate of the Registrar had made use, or had made wrongful use, in reaching her decision. The applicant himself in a supplementary submission to the delegate on 17 December 2001 referred to parts of the Kenbi Land Claim Report.
21 In my judgment, the delegate of the Registrar did not err in having regard to the information contained in the Kenbi Land Claim Report, or indeed in having regard to any of the information to which she referred in her reasons for decision. Section 190A(3) provides that the Registrar may have regard to such other information as he or she considers appropriate in addition to the information specifically referred to in sub par (a)-(c). Section 190A(3)(b) clearly contemplates that the Registrar may obtain information by searching registers of interests in relation to land or waters maintained by the Commonwealth, State or Territory and may also have regard to information supplied by the Commonwealth, State or Territory that is, in the Registrar's opinion, relevant to whether any one or more of the conditions set out in ss 190B or 190C are satisfied. O'Loughlin J in Risk v National Native Title Tribunal [2000] FCA 1589 at [25] referred to the breadth of information to which the Registrar may have regard under s 190A(3).
22 It must also be borne in mind that the effect of registration of a native title claimant application is that the person or persons in whose name or names the application for determination of native title is made becomes a registered native title claimant (s 253), and is thereby, in general terms, a native title party as defined in s 30 of the NT Act entitled to be a negotiation party for the purpose of negotiations under Sub Div P of Div 3 of Part 2 of the NT Act. The Native Title Register, therefore, as a public document has considerable public significance. The functions and powers of the Native Title Registrar in determining whether to accept an application for registration should not be circumscribed or confined to some form of administrative inquiry in which reliance may be placed only on the information provided by an applicant. The public significance of the Native Title Register also indicates the Registrar should be entitled to inform himself or herself of matters of significance, and (as contemplated by s 190A(3) of the NT Act) to receive information from the relevant Commonwealth, State and Territory governments or land councils.
23 In my judgment, therefore, the delegate of the Registrar was entitled to have regard to the information identified in the reasons for decision, and did not err in law by having regard to that information.
24 The substance of the applicant's complaints relate largely to the use to which such information was put in concluding that the application should not be received for registration. The delegate's decision carefully considered the amended native title determination application. She discerned (as the applicant now asserts) that the native title determination application is now in respect of the Kulumbiringin people as a discrete native title claim group who, in accordance with traditional laws and customs, hold the common or group rights and interests in the claim area. That is, it is not for a sub-group of the Larrakia group but for a different discrete native title claim group.
25 The delegate then proceeded to address whether there was evidence why the Kulumbiringin group as identified is an appropriate claim group in the face of the earlier claims in the native title determination application that the appropriate claim group was the Danggalaba clan, and in the light of information more generally of the claim area being subject to a native title determination application on behalf of the Larrakia group of which the Kulumbiringin as a separate clan may be part of.
26 It is apparent that the identification of the native title claim group is one which goes to the heart of a native title claim: Quall v Risk [2001] FCA 378 at [67] per O'Loughlin J; Daniel v State of Western Australia [2002] FCA 1147 at [11] per French J. Section 190C(2) thus requires the application to contain all the details and other information required by ss 61 and 62 of the NT Act. Section 61(1) requires the native title determination application to identify the person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claim, provided the person or persons are also included in the native title claim group. Consequently, the delegate of the Registrar had to consider whether, on the basis of the native title determination application and such other relevant information as was received or considered, the application had been made on behalf of a native title claim group. The delegate had regard to the observations of O'Loughlin J in Risk v National Native Title Tribunal [2000] FCA 1589at [60] that:
"A native title claim group is not established or recognised merely because a group of people (of whatever number) call themselves a native title claim group. It is incumbent on the delegate to satisfy herself that the claimants truly constitute such a group … [T]he tasks of the delegate include the task of examining and deciding who, in accordance with traditional law and customs, comprised the native title claim group."
The applicant did not suggest the delegate was wrong to have addressed the matter in that way. Rather, as I understood him, his complaint was that the wrong factual conclusion had been reached.
27 The native title determination application specified the Kulumbiringin to comprise four senior people: Yula Williams, Mary Raymond, Rona Alley and Ron Quall and their descendants. There were 27 named persons comprising the Kulumbiringin group. In fact, as the delegate noted, the information available suggested that some of the offspring of the families of the four elders or senior members named had not been included. The applicant did not explain the apparent deficiency.
28 More importantly, as it seems to me, the delegate referred to Attachment S to the native title determination application to discern the apical ancestors of the Kulumbiringin group. It revealed that the claimant group are descendants of three Kulumbiringin ancestors: Dedja Batcho, Dolly Gurrinyee and Sam Gundook. The Kenbi Land Claim reports identifies Dedja Batcho as having eight children, seven of whom had descendants. Four of those descendants are the four senior people referred to in the preceding paragraph. Thus, the delegate observed, three of those seven descendants are omitted from the native title claim group, namely Victor Williams, Bert Batcho and Lucy May (Batcho). Information in the Kenbi Land Claim Report also indicated that each of those three people had some descendants. The delegate noted that the applicant had explained that certain of those descendants preferred to remain with the larger Larrakia group, and had therefore "opted out" of the Kulumbiringin claim group. The delegate further noted that the application did not indicate whether Dolly Gurrinyee and Sam Gundook were deceased, or whether they had any living descendants, and if they had living descendants as to why their descendants should not be included in the claim group. (In another matter before the Court, it appeared that both of those persons are deceased). In any event, it is correct (as the delegate found) that the native title claim group as expressed did not address the issue of their descendants. The delegate also observed that essentially the same persons as now comprise the Kulumbiringin native title claim group appeared to be those previously identified by the applicant, during the Kenbi Land Claim hearings, as Danggalaba people.
29 On the basis of that material, the delegate concluded that the native title claim group as currently described is not properly constituted within the meaning of s 61(1) of the Act as it does not include all those people "who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed". It also followed that the requirements of s 61(4) of the NT Act also were not satisfied. It requires the application to name all the persons in the native title claim group, or to describe them sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. As the claim group was not properly described or constituted, the delegate concluded that that requirement also was not met. Consequently the delegate considered there was a failure to comply with s 190C(2).
30 In my judgment, that process of reasoning of the delegate is not attended by any demonstrated factual misconception or any error of law in the way in which she approached the material. The delegate identified the appropriate issue and addressed it. Her determination of the facts is not shown to have been erroneous. She has explained the material upon which she relied in reaching the conclusion which she did. That material was capable of leading to that conclusion. Although the delegate's conclusion does not expressly use the word "described" to which reference is made in s 61(4)(b), it is apparent that that is what the Tribunal intended to convey. The delegate did address the right question, and was entitled to conclude that the native title claim group described in the application does not include all of the persons who hold the common or group native title rights or interests.
31 In my judgment, it is not appropriate for the Court on the present application to go beyond that conclusion and to re-address afresh the issues of fact which the delegate decided. If the application is made under the ADJR Act, it is not the function of the Court to do so. If the application is made under s 190D(2), accepting that there may be circumstances in which the Court on review of a Registrar's decision may substitute its own findings of fact as explained by the Full Court in Strickland, it is not appropriate to do so in this instance. The applicant argued the review application on the basis of demonstrating legal error in the process of the delegate's reasoning. He did not have before the Court all the material which was before the delegate, as disclosed in her reasons for decision. He did not adduce any fresh evidentiary material. The Court was thus asked to review the delegate's decision only by reference to the scanty material in the application for review, and the documents filed in the native title determination application and material presented to the Registrar in relation to the registration decision by the applicant and by the Northern Territory (helpfully assembled by the Northern Territory).
32 In my view, therefore, the delegate's conclusions that:
(i) it cannot be said that the persons in the "native title claim group" are named in the application, because there are some members of that group who are not known, and
(ii) it cannot be said that the persons in the "native title claim group" are described sufficiently clearly, because of the inconsistency between the specific list of 27 named persons in Schedule A and the broader description of the claimant group as descendants of certain apical ancestors in Attachment S to the native title determination application,
are not demonstrated to be erroneous. It follows that the delegate's conclusion that the requirements of s 61(4) and s 190B(3) were not satisfied is also one which should stand.
33 Those matters are sufficient to deal with the present application. That is because s 190A(6) requires all the conditions imposed by ss 190B and 190C to be met before a native title determination application may be registered. However, it is appropriate to briefly refer to the other matters upon which the delegate based her decision.
34 Section 190C(3) addresses common claimants in overlapping claims. It precludes the registration of an overlapping claim where there are members of the claimant group common to a prior registered claim and the one being tested for registration. The correct approach to this issue was described by French J in Strickland at [29]. It was not a matter which the Full Court on appeal in Strickland was required to address. The delegate correctly identified that at the time of the original application on 30 September 1999, and continuing at the time of the current application, another claim was made in respect of the claim area which fell within s 190C(3). The applicant did not directly attack that conclusion.
35 Section 190C(4) is set out above. The relevant provision is sub par (b), concerning authorisation. Section 190C(5) directs the Registrar not to be satisfied that the condition in sub par (b) has been met unless the application includes a statement to the effect that the requirements set out in sub par 4(b) have been met and briefly sets out the grounds on which the Registrar should consider that such conditions have been met. The formal requirements of s 190C(5) are met. The delegate, however, was not satisfied that the requirements of s 190C(4)(b) were met, following from her decision that the native title claim group was not properly described or constituted. The delegate was not satisfied therefore that the applicant was authorised by all other persons in the relevant native title claim group to make the claim in accordance with the process of decision-making recognised under the traditional laws and customs of the group. Section 251B makes it clear that authorisation must be given by all the persons in the native title claim group in accordance with the process of decision-making under traditional laws and customs, unless there is no such process. It followed, from the delegate's view that the claim group was not properly described and constituted, that the applicant was not authorised on behalf of all the persons in the native title claim group. Once the delegate was not satisfied that the native title claim group as described met the requirements of s 61(1) and s 190B(3) that conclusion followed.
36 The Registrar was also not satisfied that the requirements of s 190B(5) were met. That is, the delegate was not satisfied that there was a sufficient factual basis to support the assertion that the claimed native title rights and interests exist. The delegate referred at length to the factual material supplied by the applicant and to additional material: see e.g. per Martin v Native Title Registrar [2001] FCA 16 at [23] per French J. She described the material provided as "extensive and compelling". However, because she was not satisfied that the application was made by a properly constituted native title claim group as defined by the Act in s 61(1), and s 190C(2), she did not think it possible to be satisfied of a sufficient factual basis to support the assertions set out on behalf of the particular native title claim group specified in the application. Otherwise, the particulars provided would have been sufficient.
37 Thus, the delegate's decision turned in this regard on her approach to s 61 and the identification of the native title claim group for the purposes of s 190B(3). For the same reasons, the delegate found that the requirements of ss 190B(6) and 190B(7) were not met. As I have concluded that the delegate's decision as to the requirements of s 61 and s 190B(3) should not be disturbed, her conclusion as to those further provisions should also remain undisturbed.
38 I note that the Northern Territory drew attention to the delegate's decision that the requirements of s 190D(4) of the Act were satisfied. It requires the native title determination application to describe, in accordance with s 62(2)(d) of the NT Act, the native title rights and interests claimed so that they may be readily identified. The Northern Territory contended that the native title rights as expressed and described in the native title determination application did not make their nature and content readily ascertainable. Reference was made to the remarks of French J in Strickland at 261, and to Western Australia v Ward (2002) 191 ALR 1 at [52]. It is asserted in the native title determination application that the statements or descriptions of the claimed native title rights and interests are subject to the effect of all existing native title rights and interests, and subject to any native title rights and interests which may be shared with any others who establish that they are native title holders of the area. The contention was that such an expression is inconsistent with the claimed rights. It was contended that the delegate erred in treating the expression of the claimed rights as being claims to exclusive rights to the extent that s 47B can operate so as to require the Court to disregard any previous non-exclusive possession act. As I have determined to reject the application in any event, I do not need to address that issue further.
39 The complaint of bias or lack of good faith is a serious allegation. It should not be made without there being a proper foundation for the allegation. In this instance, the complaint of bias or pre-judgment is based upon the assertion that the Tribunal did not genuinely address the applicant's claims, but simply adopted material from other claims and particularly information from the Kenbi Land Claim. I do not think the delegate's approach to this matter demonstrates that she did not approach her consideration of the applicant's claim with a mind open to persuasion. Her reasons bespeak otherwise. I have concluded she was entitled to have regard to an extensive range of material to reach her views. I do not think her approach demonstrates either actual bias, or apprehended bias, namely that a suspicion may be reasonably engendered in the minds of those who came before the Registrar or in the minds of the public that the Registrar or his delegates may not bring to the resolution of the questions arising before them fair and unprejudiced minds: see The Queen v Commonwealth Conciliation & Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553-554. The applicant has not pointed to evidence of any bias on the part of the delegate other than a reference to material provided by others. As I have said, reference to such material on the part of the delegate is proper. I do not discern from the applicant's oral submissions any other grounds upon which he asserts bias on the part of the delegate.
40 The fact that the Registrar or the delegate of the Registrar had previously considered like applications on the part of the applicant, and has rejected them, does not mean that the delegate could not bring to the making of the decision an unbiased mind: see Ewert v Lonie [1972] VR 308. In fact, as the delegate's reasons indicate, she considered the fresh amended description of the claim group carefully and the material advanced by the applicant in the application extensively and otherwise to determine whether the native title claim group as asserted satisfied s 61(1) of the NT Act. Given previous decisions, it would not be unrealistic for the applicant to have thought that he would not have much chance of succeeding in having his application accepted for registration, but there were differences between the application as presently expressed and his earlier applications which had been considered by the delegate of the Registrar. The delegate addressed those differences, and sought to explore their significance. At the end of the day, however, the decision was adverse to the applicant. The decision, in my judgment, resulted from a careful analysis of the present application, noting the significant differences between it and the unamended version of the application and other applications made by the applicant in respect of other areas of land. She considered earlier decisions in relation to previous expressions of native title claim groups involving the applicant, and in other cases. It was appropriate to do so. She had regard to the findings of the Aboriginal Land Commissioner in the Kenbi Land Claim, and the apical ancestors described in it. The delegate was entitled to refer to such material, having regard to s 190A(3) of the Act. She gave the applicant an opportunity to respond to the material provided by the Northern Territory and by the Northern Land Council. The applicant made use of that opportunity.
41 In my judgment, the delegate's reasons reflect a careful and considered approach to the fulfilment of her task. It does not give rise to a conclusion that she was biased either in an actual sense or in an apprehended sense. Nor does it give rise to any conclusion that she did not approach her task in good faith and with a view to achieving an end or objective outside the purpose for which the decision-making power was conferred: cp Shire of Swan Hill v Bradbury (1936) 56 CLR 746.
42 Accordingly, I consider that the application should be dismissed. I so order. There is no issue as to costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.