Earlier disputes between Mr Quall and Mr Risk
25 It is now necessary to recount some of the troubled history of the Larrakia native title claims and Mr Quall's involvement in them. It will be sufficient, for the moment, to say that, through Mr Risk, the Larrakia people have made several claims for determinations of native title over land and waters in the Darwin area. It is also sufficient to say that Mr Quall has also made many like claims on behalf of the Dangalaba Clan. However, whereas the Larrakia claims are over relatively larges areas, Mr Quall's claims have been over smaller areas. Two points of importance must be stressed:
· all the Dangalaba's claims are within the perimeters of the Larrakia's claims and, as a consequence, there is overlapping;
· most of the Dangalaba's claims were either lodged for or considered for registration by the Tribunal before the Larrakia's claims.
26 A particular conflict between the two parties erupted last year in respect of Mr Quall's application for a determination of native title over a small parcel of land of about 1.83 hectares at Myilly Point, a suburb of Darwin ("the Myilly Point Land"). Mr Quall had lodged his application in respect of that land on 8 October 1996. He claimed that he did so on behalf of eight people, each of whom had the surname Quall. Mr Quall was one of those eight people. Two months later, the Northern Land Council, acting on behalf of Mr Risk, lodged an application for a determination of native title over a large piece of land which encompassed the Myilly Point land. Despite the submissions that were then made by the Northern Land Council to the contrary, the Registrar of the Tribunal, on 31 May 2000, accepted Mr Quall's application for registration pursuant to s 190A of the Act. Mr Risk reacted, claiming that he was aggrieved by the Registrar's decision and sought review by this Court under the Administrative Decisions Judicial Review Act 1977 (Cth) ("the ADJR Act").
27 It was submitted on Mr Risk's behalf that the registration of Mr Quall's application would, or might, preclude Mr Risk from obtaining registration in respect of the larger area of land that was the subject of the Larrakia application. Mr Risk complained that denial of registration would have the effect of denying to the Larrakia people:
"… procedural rights of objection currently possessed in relation to various notices of proposal (concerning land the subject to that application) which have been issued under the Lands Acquisition Act (NT), or which in future may be so issued".
28 Section 190A of the Act, dealing, inter alia, with the test for registration of a native title application, came into force on 30 September 1998 as part of a large package of amendments to the Act. Those amendments included transitional provisions that require the Registrar of the Tribunal to apply the provisions of s 190A to applications for a determination of native title that had been lodged with the Tribunal prior to 30 September 1998 but after 27 June 1996: both Mr Quall's and the Larrakia applications fell into that category. The amendments that were made to the Act by the Native Title Amendment Act 1998 (Cth) included provisions that concerned the requirements that had to be satisfied for subsequent applications to be placed on the Register of native title claims; they also addressed the requirements that had to be attended to in respect of applications that were already on the Register so that they might remain on the Register. The Registrar of the Native Title Tribunal is obliged to accept a claim for registration if it satisfies all of the conditions in s 190B and s 190C of the Act. Those sections deal, respectively, with conditions about the merits of the claim and with conditions about procedural and other matters. In any other case an application cannot be registered. The conditions specified in ss 190B and 190C are detailed. Relevantly, subs 190C(2) states that the Registrar must be satisfied that "all the details and other information" required by ss 61 and 62 are included in an application. If not, the application cannot be registered. Conversely, applications which satisfy ss 61 and 62 nevertheless cannot be registered if the other conditions in ss 190B and 190C have not been satisfied.
29 At the heart of Mr Risk's challenge in the ADJR proceedings was the composition of the "native title claim group" that had been named by Mr Quall in his application; the claim was that Mr Quall's application, in its final form, had not been lodged on behalf of a "native title claim group" within the meaning of that term as it appears in subs 61(1) of the Act. If that argument was correct, it meant that there had been a failure to comply with a provision of s 61 which, in turn, would mean that there had been a failure to comply with subs 190C(2). Those failures would lead to the conclusion that Mr Quall's application should not have passed the registration test.
30 In addition to the application for the determination of native title that Mr Quall had lodged with respect to the Myilly Point land, he had also filed five additional applications with the Tribunal, each seeking a determination of native title over five discrete parcels of land in the Darwin area. Each of those five parcels of land formed part of the land which was the subject of the same Larrakia application that covered the Myilly Point land and each of them was lodged prior to the Larrakia application. The same eight persons were named as the native title claim group in each of those five additional applications.
31 Mr Quall's five additional claimant applications were accepted by the Registrar for registration. That led to Mr Risk lodging in Court five individual applications under the ADJR Act, each seeking an order of review in terms that were consistent with the orders sought in the Myilly Point proceedings. Those five matters were called on before me at the same time as the Myilly Point proceedings; it was submitted that it would be possible for the Court to hear all six matters at the same time for, as counsel for Mr Risk submitted, each addressed "an identical legal issue". However, he acknowledged that copies of the material from the Registrar's five files had not then been collated and filed in Court. Furthermore, Mr Dalrymple, who appeared as counsel for Mr Quall in the Myilly Point proceedings, submitted from the bar table that it was not conceded that the factual circumstances in the six claims were identical. In the absence of the relevant papers and in light of Mr Dalrymple's comments, I deemed it inappropriate to deal with the five new matters. I therefore ordered that each of them be adjourned sine die to await the outcome of the Myilly Point proceedings.
32 After having had the benefit of submissions from counsel, I came to the conclusion that there were two discernible errors in the delegate's reasons. First, she assumed, without inquiring, that the family of eight was a native title claim group. Secondly, she accepted a claim for registration by a group of people who were, self evidently, part only of a larger group (the Dangalaba Clan) when there was no evidence of authorisation by, or identification of, the other members of the Dangalaba Clan.
33 An authorisation must come from all the persons who hold the common or group rights and interests: see s 61 if the Act. I have some difficulty with the use of the word all. It cannot mean every person in the group for there may be members of the group who are infants or mental defectives and, as such, incapable of giving their authorisation. The whereabouts of other members of the group may not be known. I cannot see how the failure to obtain authorisation from members whose whereabouts are unknown could prevent an otherwise legitimate claim for native title from proceeding. Fortunately, that particular problem does not arise in this case.
34 It would be open for an applicant, in an appropriate case, to advance an application upon the premise that all such persons were limited to eight people - but Mr Quall did not suggest that in his application. In fact, he had asserted that he made the application on behalf of the Dangalaba Clan, a group that he identified as being "traditionally of the Kulumbirigin Larrakia tribe", and the delegate noted in her reasons that Mr Quall had stated that the Dangalaba Clan comprised about 140 to 150 people.
35 Following upon the publication of my reasons in the Myilly proceedings, the other five matters were called on for hearing. I was advised by counsel for Mr Quall that Mr Quall consented to orders being made, without argument, setting aside the Delegate's decisions to register each of the five applications.