Risk v National Native Title Tribunal

Federal Court of Australia|2000-11-10|Before: O'Loughlin J

REASONS FOR JUDGMENT 1 These proceedings, which have been commenced under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), have been instituted by William Maxwell Risk ("Mr Risk"). Mr Risk has claimed that he is aggrieved by a decision ("the decision") of the Registrar of the National Native Title Tribunal ("the Tribunal"). Pursuant to that decision, the Registrar on 31 May 2000, accepted for registration, pursuant to s 190A of the Native Title Act 1993 (Cth) ("the Act") an application for a determination of native title. On 8 October 1996, the relevant application, claiming native title over certain land, was lodged in the Northern Territory Registry of the Tribunal. The name of the applicant was Kevin Lance Quall (also known as Tibby Quall) ("Mr Quall"); he is the second named respondent in these proceedings; the Tribunal is the first name respondent. The native title claim group that was identified by Mr Quall in his application was a family of eight, comprising himself and seven other persons, each of whom has the surname Quall. 2 Mr Risk seeks an order that the decision be set aside. He also seeks an order directing the Registrar to remove Mr Quall's present amended application from the Register of native title claims and a further order directing the Registrar not to accept any further amended application from Mr Quall. 3 Mr Quall's application to the Tribunal related to a small parcel of land of about 1.83 hectares at Myilly Point, Darwin, in the Northern Territory of Australia ("the Myilly Point land"). Mr Risk claimed that he is aggrieved by the decision because he had, on 6 December 1996, lodged with the Tribunal, on behalf of the Larrakia People, a native title determination application in relation to a large parcel of land in the Darwin region (which land included the Myilly Point land) ("the Larrakia application"). It was submitted on Mr Risk's behalf that the registration of Mr Quall's application will or may preclude Mr Risk from obtaining registration in respect of the larger area of land that is the subject of the Larrakia application. Mr Risk has 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". 4 An appearance has been filed in these proceedings on behalf of the Tribunal; it has agreed to abide by such orders as the Court may see fit to make, save only as to any order on the question of costs. Mr Quall was represented by counsel, Mr Dalrymple, at the hearing of the present application and Mr Levy, a legal practitioner who is employed by the Northern Land Council, appeared on Mr Risk's behalf. 5 The procedural history of this matter has been conveniently set out in the affidavit dated 30 August 2000 of Penelope Alice Cresswell, the solicitor from the Northern Land Council who has the care and conduct of this matter on behalf of Mr Risk and the Larrakia People. What follows is a summary of the information that is contained in that affidavit. As I have already noted, Mr Quall lodged his original application (which is now an application in the Federal Court - action number DG 6010/98) with the Tribunal on 8 October 1996. In accordance with the provisions of the Act prior to its amendment in 1998, the application was entered on the Register of native title claims on the date of its lodgment. The Larrakia application over the larger area of land in Darwin (which is also now an application in the Federal Court - action no DG 6017/98) was also entered on the Register of native title claims on the date of its lodgment - 6 December 1996. In the case of an application for a determination of native title that was lodged with the Tribunal prior to 30 September 1998, the date upon which such an application is made is taken to be the date when the initial application was lodged with the Registrar - not the date when the application was subsequently considered and accepted: Western Australia v Strickland (2000) FCA 1530. Thus the relevant date in the case of Mr Quall's application is 8 October 1996 and the relevant date of the Larrakia application is 6 December 1996. 6 The land at Myilly Point that is the subject of Mr Quall's application and that forms part of the Larrakia application is the subject of a notice of proposed acquisition under the Lands Acquisition Act (NT). The notice of proposal states that the Northern Territory proposes to acquire, not only the land, but also the native title rights and interests (if any) in the land. According to Ms Cresswell, Mr Risk, on behalf of the Larrakia people, has lodged an objection to the proposed acquisition in so far as the acquisition affects the interests of the Larrakia people in the land. Under the Land Acquisition Act, an objector, properly so called, is entitled to be consulted by the Territory with respect to the proposed acquisition and, absent agreement, to pursue the objection in the Territory's Lands and Mining Tribunal. Ms Cresswell further deposed to her belief that Mr Quall has also lodged a like objection. 7 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: see Sch 5, Pt 4, note 11(5) of the Act. Both Mr Quall's and the Larrakia applications fall into this 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 (and thus may properly proceed to a hearing before the Court) nevertheless cannot be registered if the other conditions in ss 190B and 190C have not been satisfied. 8 Ms Cresswell deposed in her affidavit that the Larrakia application has yet to be considered by the Registrar pursuant to s 190A, as recently acquired mapping information is still to be assessed; she anticipates that there will be a need to amend the application to identify more precisely points of latitude and longitude for the purpose of the registration test. 9 At the heart of Mr Risk's challenge is the composition of the "native title claim group" that has been named by Mr Quall in his amended application; the claim is that Mr Quall's application, in its final form, has not been lodge 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 is correct, it would mean 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. Before addressing that issue, however, there are some incidental matters that must first be dealt with.

EXTENSION OF TIME 10 Although the Tribunal's decision was delivered on 31 May 2000, a copy of the decision was not supplied to the Northern Land Council (on behalf of Mr Risk), despite several requests. This led to a request under s 13 of the ADJR Act for a copy of the reasons of the Tribunal. That request was made by Ms Cresswell by letter dated 13 July 2000. By letter dated 17 July 2000, the Tribunal supplied the Northern Land Council with an edited version of the Tribunal's reasons. That information was not acceptable and Ms Cresswell wrote the Tribunal on 22 August 2000 seeking an unedited copy of the Tribunal's reasons. 11 Having regard to the provisions of s 11 of the ADJR Act, the application to this Court on behalf of the Larrakia people should have been filed within twenty-eight days of the day on which a document setting out the terms of the decision was furnished to the applicant. It was submitted on Mr Risk's behalf that the failure of the Tribunal to supply the Northern Land Council with an unedited copy of its decision meant that time had not commenced to run against it. Alternatively, if the supply of the edited version of the reasons was a due compliance by the Tribunal of its statutory obligations under the ADJR Act, then the Larrakia People were three days late in filing their present application: in that case they sought an extension of time. The matter was not argued out by counsel. Mr Dalrymple advised the Court that his client did not wish to make any submissions on the application and, in response to an inquiry from me, he acknowledged that his client had not suffered any prejudice as a result of any delay. In those circumstances, as I do not suggest that it is always incumbent on a decision-maker to supply a copy of its unedited reasons, I deemed it appropriate to extend the time within which this application could be filed to the date of its filing.

FIVE NEW MATTERS 12 In addition to the application for the determination of native title that Mr Quall has lodged with respect to the Myilly Point land, he has 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 forms part of the land which is the subject of the Larrakia application and each of them was lodged prior to the Larrakia application. According to the affidavit of Ms Cresswell, the same eight persons have been named as the native title claim group in each of those five additional applications. 13 Sailesh Kumar Rai is also a solicitor who is employed by the Northern Land Council. He has sworn an affidavit in these proceedings dated 7 September 2000 deposing that each of Mr Quall's five additional claimant applications has been accepted by the Registrar for registration. This has led to Mr Risk lodging in Court five individual applications under the ADJR Act, each seeking an order of review in terms that are consistent with the orders sought in these present proceedings. At the request of Mr Levy these five matters were called on at the same time as these proceedings; he submitted that it would be possible for the Court to hear all six matters at the same time for, as he submitted, each addressed "an identical legal issue". However, he acknowledged that copies of the material from the Registrar's five files had not yet been collated and filed in Court. Furthermore, Mr Dalrymple 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 present proceedings.

APPLICATION FOR AN ADJOURNMENT 14 When the matter was called on for hearing, Mr Dalrymple sought an adjournment so that Mr Quall would be able to lodge amended applications for determinations of native title in respect of the Myilly Point land and also in respect of each of the other five parcels of land. According to Mr Dalrymple, the purpose of the amended applications would be to identify, properly and adequately, "the true factual situation"; he conceded that the facts that had been placed before the Registrar in each of the six applications represented an "incomplete situation". Mr Dalrymple was, so it seemed, conceding that there was a reviewable error in the reasons of the Registrar's delegate. However, rather than having the Court formally recognise the existence of that error, he wished his client to have the opportunity to file amended applications for determinations of native title in each of the six matters. By this means the correct factual material could, so he said, be placed before the Registrar so that when the time came for the Registrar's delegate to reconsider whether the further amended applications passed the registration test, the decisions would be made on the correct facts. 15 In support of his application for an adjournment, Mr Quall filed the affidavits of Yula Williams and Rona Alley. Both deposed that they were sisters of Mr Quall's mother. Both said that they were authorised under Aboriginal law to speak on behalf of their children in relation to land entitlement issues relating to their traditional country. They each said that they are members of the Danggalaba Clan and that the land at Myilly Point is Danggalaba country. They said that they had never authorised the Northern Land Council (I take that to mean Mr Risk on behalf of the Larrakia People) to make any native title claim on their behalf. They then each said: "5. I confirm that I give authorization, on behalf of myself and my children, for [Mr Quall] to make application for determination of Native Title in relation to that part of the Myilly Point area that has been identified in his application …. 6. I understand that the Application is being made on the basis that [Mr Quall] is seeking recognition that Danggalaba people are the native title holders of the application area." 16 Mr Quall filed a third affidavit; it was in the name of Linda Susan Roman. She identified herself as one of the surviving children of Lindy Danks (also known as Lindy Roman) and a grand daughter of Yirra Bandoo (also known as Amy Yirra and Amy Roman). She asserted that she was authorised by the other surviving descendants of Yirra Bandoo to speak on their behalf in relation to the land at Myilly Point. She also said that she was a member of the Danggalaba clan and that the Myilly Point land is in Danggalaba country. 17 She said, as did Ms Williams and Ms Alley, that she had never authorised the Northern Land Council to make a native title claim on her behalf. She also deposed that she authorised Mr Quall to make an application for a determination of native title in relation to the Myilly Point land but on the basis that he was seeking recognition that the Danggalaba People are the native title holders of the application area. 18 Those statements, which are contained in affidavits that were filed on Mr Quall's behalf, indicate that there has been a material shift in his ground; they indicate that he has moved away from a claim that the group of eight is the native title claim group and is now intending to examine the possibility of making a claim on behalf of a much wider group -presumably all members of the Danggalaba Clan. 19 So much is made clear by Mr Quall in an affidavit that he affirmed on 13 September 2000 which he filed in support of his application for an adjournment of these proceedings. In par 9 he said: "Having only very recently had the opportunity to obtain legal advice in relation to this proceeding and in relation to the Application generally, I wish to apply to the Federal Court for leave to amend the Application so that the identified 'native title claim group' includes all those members of the Danggalaba Clan who are now prepared to authorise me to make the Application on their behalf. My understanding is that if leave is granted for the Application to be amended in the manner foreshadowed, the registration will be re-applied by the Native Title Registrar or his delegate." 20 The detail of the information that was disclosed in these affidavits was not, of course, before the delegate when she made her decision that Mr Quall's application be accepted for registration pursuant to s 190A of the Act. Be that as it may, it nevertheless remains a fact that Mr Quall, by his filing of these affidavits is now asserting that the information that he placed before the Registrar for the purpose of the registration test was incorrect in a material particular. He had advanced in his amended application to the Tribunal the proposition that the native title claim group was a body of eight persons; he now has impliedly admitted that that assertion was wrong and that the native title claim group that he wishes to advance for the purpose of the registration test will include "all those members of the Danggalaba Clan who are now prepared to authorise me to make the application on their behalf". By my quoting that passage from his affidavit I do not want it thought that I am acknowledging that members of the Danggalaba Clan who choose to give Mr Quall an authorisation can constitute themselves a native title claim group. It will be for the Registrar or the Registrar's delegate to examine and identify the correct composition of the group should Mr Quall's application return to the Registrar. It could be that the group may include others who have declined to give Mr Quall an authorisation. Should that be the case, the Registrar or the delegate would have to pay close attention to the provisions of s 251B of the Act (the terms of which are set out later in these reasons). 21 Mr Dalrymple also sought to tender these affidavits as part of the substantive application. It is not the normal function of this Court, in an application for an order of review under the ADJR Act, to look for errors of fact in the decision that is under review. Normally, only questions of law are to be considered at the Federal Court level. The policy of the legislation is to make the decision of the delegate final on questions of fact. In most cases it would be inconsistent with that policy to adduce evidence before the Federal Court on an application pursuant to the ADJR Act, when the object of that additional evidence is to invite the Court to disagree with a factual conclusion that had been reached by the delegate. The circumstances of this case are, however, most unusual for it is the party who was successful before the decision-maker who is now wishing to place evidence before the Court which, if accepted, would show that the successful party had been responsible (albeit perhaps accidentally) for misleading the decision-maker. 22 At the end of the day, I do not think that it is necessary to spend time debating the idiosyncrasies of this case. For the reasons that I will proceed to set out, I have come to the conclusion that the delegate erred in law in her treatment of Mr Quall's application. It is my opinion that she should not have accepted the family of eight as a native title claim group. I have been able to come to that conclusion as a result of my examination of the papers that were before the delegate, independently of the contents of the affidavits that were sought to be read in support of Mr Quall's submissions. Before turning to those reasons, I must, however, state my response to Mr Dalrymple's application for an adjournment. 23 Far from being grounds for an adjournment, I considered that Mr Dalrymple's submissions justified the continuance of the proceedings. To have granted an adjournment for the purpose sought on Mr Quall's behalf would have ignored Mr Risk's rights and, in particular, such rights as might now be available to him and the Larrakia people (if any) as a result of the errors that had been made by Mr Quall in his six applications. After all, it is not as if these events have occurred only recently. It is four years or so since Mr Quall lodged the first version of his application in respect of the Myilly Point land with the Tribunal; since then it has been amended on two occasions and Mr Dalrymple's proposal would be a third amendment. It is true that, until now, Mr Quall has not formally had the benefit of legal representation but the quality of the documents that have been filed in his name reasonably suggest that someone with a legal background has had detailed involvement in their preparation. For these reasons I declined Mr Dalrymple's application for an adjournment.

ADDITIONAL INFORMATION 24 One of the grounds upon which Mr Risk attacked the decision was that the Registrar's delegate had failed to have proper regard to information that had been supplied to her on behalf of the Larrakia People by the Northern Land Council. Mr Dalrymple argued that this complaint was misconceived. Relying on a passage that appears in par 27 of the judgment in Powder Family, on behalf of the Jetimarala People v Registrar, Native Title Tribunal [1999] FCA 913, he submitted that the only information that the delegate was permitted to consider was the material that had been provided by Mr Quall, together with the material that resulted from the delegate's own searches of registers and the material that may have been provided by the Commonwealth, a State or a Territory. That proposition does not accommodate the concluding words of subs 190A(3) of the Act which entitles the Registrar to "have regard to such other information as he or she considers appropriate". The full text of the subsection is as follows: "(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." 25 In my opinion, the delegate was within her rights to have regard to the information that was supplied to the Registrar by, or on behalf of, Mr Risk. Indeed, she would have been in breach of her statutory obligations if she had ignored the material. While she was only required to consider it if she thought it appropriate, she could only make that decision by first examining the contents of the material. If having examined the contents, she formed the opinion that it was not appropriate, then, at that stage she would have been entitled to disregard it. There is however, nothing in the papers that suggests that the delegate ignored the information that was supplied by the Northern Land Council.

The provisions of subs 190c(3) 26 An initial question that needs to be determined is whether the Registrar's delegate failed to comply with the terms of subs 190C(3). That subsection is concerned with overlapping claims. It provides as follows: "(3) The Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application, if: (a) the previous application covered the whole or part of the area covered by the current application; and (b) an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and (c) the entry was made, or not removed, as a result of consideration of the previous application under section 190A." 27 In considering this provision, the first question that arises is the point of time at which the Registrar must be satisfied that there has been no duplication of claimants. If his or her state of satisfaction was to be tested when Mr Quall's current application was lodged then there was no previous application because the Larrakia application had not then been lodged. However, the date of lodgment is hardly likely to be the date when the Registrar examines the application and, hence, it is hardly likely to be the date when the Registrar must look for the required degree of satisfaction. The more likely date on which the Registrar must achieve satisfaction is the date upon which he or she examines the application for the purpose of seeing whether it will pass the registration test. By that date, the Larrakia application had been lodged and the Registrar knew or would be deemed to know of its existence and its contents. An examination of the two applications would have shown that the Larrakia application included the Myilly Point land which was the subject of Mr Quall's application: (as to which see subpar 190C(3)(a)). 28 However, the conditions that are referred to in subpars (a), (b) and (c) of subs 190C(3) are cumulative. Thus in terms of par (b) there was, at the time when the Registrar's delegate was considering Mr Quall's application, an entry relating to the Larrakia claim on the Register of native title claims but, in terms of par (c), it was not an entry that had been made as a result of an application under s 190A. I do not therefore consider that the Registrar failed to comply with the provisions of subs 190C(3) when a consideration was given to Mr Quall's application. If I am correct, it also means that, when the time comes for the Registrar to consider the Larrakia claim, the Registrar would be compelled to refuse registration (if Mr Quall's application is still registered) because of an overlap in area. There may, in addition, for the reasons that are set out hereunder, also be difficulties because of the presence of common claimants.

NATIVE TITLE CLAIM GROUP 29 The principal question to be addressed in these proceedings is the correct interpretation of the term "native title claim group". One of the consequences of the amendments to the Act in 1998 was the better identification of native title claim groups. The act now ensures that applications can only be lodged on behalf of properly constituted groups - not individuals or small sub-groups. This approach is consistent with the principle that native title is communally held. As Deane and Gaudron JJ said in Mabo v Queensland No 2 (1991-1992) 175 CLR 1 at 109-110 "ordinarily, common law native title is a communal title, and the rights under it are communal rights enjoyed by a tribe or other group." In State of Western Australia v Ben Ward and Others [2000] 170 ALR 159 at par 181 Beaumont and von Doussa JJ said: "Under the new Act the person or persons named becomes the applicant (s 61(2)) and s 251B describes the way in which a native title claim group may authorise the person or persons bringing the application. The NTA plainly contemplates a claim by a group or community of people." 30 The importance of the term ("native title claim group") is apparent from its appearance in the table that forms part of subs 61(1) of the Act. Subsection 61(1) imposes requirements not only in relation to the question of authorisation, but also in relation to the anterior question of whether the application has been made on behalf of a "native title claim group". An application which is not made on behalf of a "native title claim group" cannot validly proceed. By operation of subs 190C(2) the Registrar must be satisfied in relation to all the requirements contained in s 61. It follows that, when applying the registration test, the Registrar must consider whether (on the basis of the application and other relevant information) the application has been made on behalf of a "native title claim group". 31 Section 253 defines the term "native title claim group". It means: "(a) in relation to a claim in an application for a determination of native title made to the Federal Court - the native title claim group mentioned in relation to the application in the table in subsection 61(1); or (b) …" 32 It follows, in relation to these proceedings, that the delegate was required to consider whether the eight persons who were identified in the amended application were persons who, in terms of the table, according to their traditional laws and customs, held the common or group rights and interests comprising the particular native title that has been claimed. 33 Section 61 is the section that identifies the applications that may be made to this Court under the Act and the persons who may make those applications. Thus the table identified, among those who may make a native title determination application, the following: "(1) A person or persons authorised by all the persons (the native title claim group) who, according to the traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or (2) … (3) … (4) …" 34 The first note that follows immediately after paragraph (1) states that the person or persons will be the applicant: thus Mr Quall is relevantly an applicant as is Mr Risk. The second note is in these terms: "Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group." 35 It is therefore necessary to consider the detail of the provision of s 251B: "For the purpose of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind." 36 Mr Quall addressed the subject of authorisation in his application to the Tribunal. In its final amended form, his application contained the following information in par 2: "The applicant is entitled to make this application as: a member of the native title claim group and authorised by the native title claim group. The native title claim group, who are members of the Danggalaba Clan, have agreed to be the native title claim group claimants for this application. Authorisation All the members of the native title claim group has (sic) authorised the applicant Tibby Kevin Lance QUALL to make this native title determination application, and deal with matters arising in relation to it. Process of authorisation A family meeting was held at 6 Hack Court Malak NT on 4 August 1999 to discuss the making of native title applications, and obtain the authorisation of the members of the native title claim group. The meeting was not a traditional Law and Customary meeting, however the members of the group agreed to a process of decision-making as a group, in relation to authorising the applicant in the making of the application and dealing with the matters in relation to it. It was agreed by the native title claim group as a family group to adopt the decision that authorisation be given to Tibby Kevin Lance QUALL to make native title determination applications and to deal with all matters arising from them. All the members of the native title claim group signed the authorisation document as a result of the decisions made at the meeting (See attachment A)." 37 Schedule A to Mr Quall's amended application called for particulars of: "The names (including Aboriginal names) of the persons (the native title claim group) on whose behalf the application is made or a sufficiently clear description of the persons so that it can be ascertained whether any particular person is 1 of those persons." 38 The following entry appeared immediately thereafter: "Kevin Lance (Tibby) Quall (also the applicant) Ronald Keith Quall Diana Deeja Quall Phillip Rupert Quall Kevin Andrew Quall Natasha Anne Quall Sarah Audrey Quall Linda Muriel Quall" 39 The signatures of those eight people appear in attachment A to the application immediately after the following passage: "The members of the native title claim group sign this statement authorising Kevin Lance Tibby QUALL to make the applications above and future applications, and to deal with matters arising in relation to them." 40 Three matters of importance can be extracted from the information that has thus far been recorded: · First, it was not suggested that Mr Quall's authorisation was given in terms of par 251B(a) pursuant to a "process of decision-making that .. must be complied with …". On the contrary, it seems apparent that a claim was being made that "the persons in the native title claim group" had given Mr Quall his authority in terms of par 251B(b) of the Act.

· Secondly, although the persons who claimed to be the native title claim group also claimed to be members of the Dangalaba Clan, they did not claim to be the only members of that Clan.

· Thirdly, the words "have agreed to be the native title claim group" seem to suggest that the composition of the group is of recent origin and that it was not determined by having regard to "the traditional laws and customs".

41 Subsection 190C(4) is in the following terms: "(4) The Registrar must be satisfied that either of the following is the case: (a) the application has been certified under paragraph 202(4)(d) by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or (b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group." 42 As Mr Quall's application was not certified in terms of par (a) of subs 190C(4), the Registrar's delegate had to be satisfied: · that Mr Quall was a member of the native title claims group; · that Mr Quall was authorised to make the application; and · that Mr Quall was authorised by all the other persons in the native title claims group. 43 I do not consider that these provisions mean that every person in the native title claim group must be named. The contents of par 61(4)(b) merely call for a description that is sufficiently clear. The subsection states: "(4) A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must: (a) name the persons; or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons." 44 The decision of Wilcox J in Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637 ("Moran"), although dealing with a different subject matter, nevertheless addressed these questions of authorisation and the identification of the native title claim group. In that case, a Mr Allert had lodged an application for determination of native title on behalf of Ms Moran. The application stated that the claim was made by Ms Moran "on behalf of the Moran Clan of the Gundungara". Ms Moran purported to be a person who had been authorised by all the persons (that is, the native title claim group) in terms of par (1) of the table in subs 61(1) of the Act. Subsequently, an application was made to the Court on behalf of a Mr Allen, seeking an order that he replace Ms Moran as the applicant on the ground that Ms Moran "is no longer authorised by the clan group to make application of (sic: or) deal with matters in relation to it". 45 The particular provision of the Act with which the Court was concerned in Moran's case was s 66B which allowed for the replacement of an applicant. The section permitted one or more members of the native title claim group ("the claim group") in relation to a claimant applicant to apply to this Court for an order for replacement on the grounds nominated in that section, one of which - that appearing in par 66B(1)(b) - being that the intending replacement members "are authorised by the claim group to make the application and to deal with matters arising in relation to it". 46 After a review of the evidence, his Honour concluded that it was "clearly established that Ms Moran no longer has the confidence of many of the people …" who had formerly supported her. Then, turning his attention to a determination of who constituted the "claim group", his Honour concluded that "the people within the group have not yet been comprehensively identified". 47 His Honour accepted that it "may be possible to satisfy the requirement of s 66B(1)(b) otherwise than by proving the making of individual decisions by all or most of the members of the group; it would be enough if there was a decision by a representative or other collective body that exercises authority on behalf of the group under customary law". That observation, with respect, accords with the problem of identification that is addressed in subs 61(4). Paragraph (a) of subs 61(4), taken in isolation, would suggest that nothing less than naming every member in the claim group would suffice, but par (b) and its reference to "otherwise describ(ing) the persons sufficiently clearly" is a strong indication that the literal identity of every person in the claim group need not be known. An obvious example would be the specific identification of a particular person as a member of the claim group followed by a statement that his or her known and unknown descendants were also included in the claim group. 48 At the end of the day both Mr Allen and Ms Moran were the losers. Mr Allen succeeded in establishing that Ms Moran no longer commanded the allegiance of all of the group but Mr Allen failed to establish that he did. As his Honour said in his concluding remarks: "It is important that those who come to the Court asserting a native title right, with all this involves in terms of effort and expense to other parties and the Court itself, should be properly authorised to make the claim. As I have explained, this does not necessarily mean the applicant must be individually authorised by each member of the claimant group. It will be enough that the applicant has been authorised to make the claim in accordance with a process of decision-making recognised under the traditional laws and customs of the claimant group." 49 The question of identification of the persons involved in the Larrakia application and Mr Quall's application was the subject of correspondence between the Tribunal and the Northern Land Council. The Tribunal's letter of 22 June 2000 contained a passage which said that the two applications "appear to have common claim group membership". The letter continued that Mr Quall had "previously identified himself as a member of Dangalaba Clan" and that it appeared that "membership of Dangalaba Clan may be identified as being among the descendants of at least two of the nine apical ancestors which comprise the Larrakia Claim group". 50 In Schedule O to Mr Quall's claim, which called for particulars of "Membership of any other Native Title Groups", Mr Quall had answered: "The members of the native title claim group are not members of the native title claim group for any other application covering all or part of the area covered by this application."

That statement, if accurate, probably meant that Mr Quall was asserting that the eight members of the Quall family were not members of the Larrakia People.

51 It was apparent, from the nature of his submissions, that Mr Dalrymple was alert to the difficulties surrounding the correct identification of the native title claim group for he asserted from the Bar table that the Larrakia application purported to include, in the native title claim group, various identified family groups from within the Danggalaba Clan who, so he said, had not given their authorisation to Mr Risk to make any application for a determination of native title on their behalf. As it is not necessary for me to examine the composition of the native title claim group in the Larrakia application for the purpose of resolving the issues that are presently before me, it would not therefore be appropriate for me to express a concluded view on the proposition that there are some people who are claimed members by both groups 52 Attachment "R" to Mr Quall's amended application was an undated, handwritten letter from Mr Quall to the Tribunal. The Tribunal's "date stamp" indicated that it was received by the Tribunal on 6 April 2000. The handwriting is difficult to read but it is nevertheless clear that in the letter Mr Quall advised the Tribunal that he recognised that "there may be others (who are Dangalaba (sic)) who may be able to prove that they are also Native Title holders in this area". It is also clear that he emphasised that he was only authorised to represent "the named members of the Native Title Claim Group" - who I take to be himself and the other seven members of the Quall family. 53 Attachment S to Mr Quall's amended application also points to a potential to broaden the native title claim group. The attachment is entitled "Factual Basis for the Native Title Rights and Interests Claimed". The body of the document then commences with a reference to the Danggalaba Clan as distinct from a reference to the eight persons who are members of the Danggalaba Clan: "1. The following description of the history and structure, native title rights and interests, spiritual affiliation, association with the area, and activities undertaken, has been prepared in relation to the Danggalaba Clan. 2. The information covers the land and waters subject to this application. The members of the native title claim group are all members of the Danggalaba Clan, however the applicant acknowledges that the information contained in Attachment S applies to a broader group than the native title claim group. 3. The native title claim group is therefore not claiming association with the area in accordance with traditional laws and customs, nor native title rights and interests to the exclusion of other members of the Danggalaba Clan who are not members of this native title claim group." 54 At the heart of the dispute between Mr Quall and those whom he represents and Mr Risk and those whom he represents is whether Mr Quall's native title claim group or, indeed, the whole Danggalaba Clan - are part of the Larrakia People. Mr Quall's version of the dispute is set out in his attachment S to his application: "4. The Dangalaba (sic) members, traditionally of the Kulumbiringin Larrakia tribe are of the Dangalaba Clan. It was during the Kenbi Land Claim that all Aboriginal claimants were borne out by the context of the evidence that all claimants were Larrakia, those who are claimants within the whole traditional boundary are within the Larrakia language. It is at this point that our group did not agree and that we did not adopt Professor Peter Sutton's new tribe and fought very hard for many years to be recognised separately and to be represented legally. Finally Justice Gray ordered that we were to be separated from the Larrakia group and that is the way it remains legally today and that is why we are arguing for the same reason." 55 I find the language used in this passage difficult to understand in places; but the main thrust is clear. Mr Quall and those whom he represents do not regard themselves as part of the Larrakia people, at least, for the purpose of his application for a determination of native title. According to Mr Quall the Danggalaba is now the only remaining Kulumbiringin (Larrakia) tribal clan to survive. It is not for me, in these proceedings to make findings of fact about the relationship (if there is one) between the Danggalaba Clan and the Larrakia People. However, the existence of their dispute serves to explain why this litigation has emerged. The task that I must undertake is limited to the composition of Mr Quall's alleged native title claim group and its relationship with Danggalaba Clan. Specifically, what I must consider is whether, because of his references to the Danggalaba Clan in his amended application, Mr Quall was appropriately authorised by a native title claim group to lodge his original application and his subsequent amended applications. That task can be crystallised by asking whether his application for a determination of native title should have been made on behalf of all members of the Danggalaba Clan? As to that question, consider what Mr Quall said in par 26 of attachment "S" to his application: "The Dangalaba clan are people who have links and have always kept together and respected each other. It is a major factor in maintaining our attachment to the land, sites and spiritual dreaming. The clan is the landowners, the lawmakers and custodians of the Dangalaba heritage and culture. Because other clans no longer exist we are considered the "bosses" for this country. A language group cannot take over our clan. We are "bosses", the traditional owners because we have heritage and culture. We inherited the knowledge to show that we exist. The Dangalaba clan succeeds traditional ownership because of the fact that no other clan exists. The knowledge of sacred significance has been passed on to us by way of ceremonial Aboriginal traditions. By Aboriginal way, the knowledge proves family ownership of land." 56 The contents of Attachment "S" clearly show that Mr Quall regards the Tommy Lyons Group, the Batcho families and the Secretary Family as being members of the Danggalaba Clan. At par 25 he wrote: "The Batcho, Secretary and Tommy Lyons Families have always recognised each other as families. The Batcho and Secretary families have tried to look after one another. Another thing to mention is that our families were never taken away under Government policy therefore we retained our connection to our country. The amazing thing is that our families are related and are of the remaining descendants of the Dangalaba clan." 57 Yet despite these statements, there is an apparently contradictory statement appearing in par 32 of the same attachment where the emphasis shifts from the Danggalaba Clan to the native title claimants (whom I take to be the eight members of the Quall family): "32. The Native Title Claimants are traditionally the owners of the land and waterways. The Native title Claimant Group are the owners of the Native Title Rights and Interests that only they have ie: the ceremonial knowledge system and continued existence for enjoyment and rights of use. The Native Title Claimant Group hold the Native Title Rights and Interests under traditional laws and customs. The emphasis then returns in par 33 to the Danggalaba Clan. 33. At the time of acquisition of sovereignty over the Northern Territory by the British Crown, the Dangalaba ancestors were traditional owners of the land and waters. The Native Title Claim Groups connection and existence with the land and waters was inherited from our ancestors in accordance with traditional laws and customs."

The statement in par 33 strongly points to the proposition that Mr Quall's application should have identified the members of the Danggalaba Clan as the native title claim group. As to the membership of the clan, Mr Dalrymple acknowledged, during the course of his submissions, that on an earlier occasion in another matter, Mr Quall had stated that there were up to 140 or 150 people who were members of the Danggalaba Clan.

58 In her reasons for her decision the delegate said of the eight persons: "… the native title claim group is not claiming association with the area in accordance with traditional laws and customs to the exclusion of other members of the Danggalaba Clan." 59 After referring to submissions that had been made by the Northern Land Council to the effect that a native title claim group should include all persons who hold native title under the common law the delegate said: "In my view although all people in the clan have not been identified, the members of the native title claim group for this application have been identified. They clearly state they are a sub-set or family group of the Danggalaba Clan and they do not exclude other people from claiming native title. They also clearly state they are members of the Danggalaba Clan. I am satisfied that, they are not claiming native title exclusively as individuals or as a family group as against the wider Danggalaba Clan. I do not see that a small family group who indicate that they are part of the wider group can only claim native title if they include the entire group. Similarly, the question of whether the Danggalaba Clan can sustain a claim independently of the wider group is not a matter to be determined to me." 60 The delegate stated in page 3 of her reasons that she was satisfied that "the persons in the native title claim group are described sufficiently clearly" but that statement overlooked the prior need to satisfy herself that those eight people properly constituted a native title claim group. 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. I cannot, with respect, accept these passages in the delegate's reasons. In the first place, it seems to assume that a family, which is known to be part only of a community, is entitled to claim native title, even though other members of the community (who in the case before the delegate have not been identified) have, for one reason or another, not been included in the application. In the second place, the acceptance of a small family group (when it is known that it forms part of a larger community) is inconsistent with the philosophy that is to be found in the table to s 61; that section talks of the persons who, as a group, hold "the common or group rights and interests". The eight members of the Quall family may be part of the group but they are not the group. The applicant (in this case, Mr Quall) should be seen to be authorised by all persons who relevantly hold the common or group rights and interests. There is no mandate for proceeding upon the undertaking or arrangement that the family of eight will not exclude other members of the Danggalaba Clan: nor is it permissible to proceed upon the undertaking or arrangement that the family of eight will hold the entitlements that they achieve on some form of trust for the other members of the Danggalaba Clan. The tasks of the delegate included the task of examining and deciding who, in accordance with traditional law and customs, comprised the native title claim group. If, as could perhaps occur in some circumstances, the group was a family of eight, then the delegate would proceed to consider all remaining tests. But when, as here, it was apparent to the delegate (as appears from the language of her reasons) that the family of eight was not the group - but, at the most, only part of the group - it became impossible to accept the application for registration. 61 In my opinion 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 a larger group (the Danggalaba Clan) when there was no evidence of authorisation by, or identification of, the other members of the Danggalaba Clan. 62 The authorisation must come from all the persons who hold the common or group rights and interests. 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, in his earlier application he had asserted that he made the application on behalf of the Danggalaba 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 Danggalaba Clan comprised about 140 to 150 people. Why Mr Quall should have made such an application, and having made it, then changed the thrust of his application to eight people, was not explained. One theory that was advanced by Mr Levy was that the earlier application might have been deficient through lack of authorisation. 63 The delegate's view is, in reality, summed up in one sentence. She said: "I do not see that a small family group who indicate that they are part of the wider group can only claim native title if they include the entire group." 64 The fallacy in that statement was in the fact that the applicant requires authorisation from all of the persons in the group. It is not necessary in these reasons to examine the presence and meaning of the word "all" although the observations of Wilcox J in Moran's case are very relevant; it is sufficient to note that the delegate would have been well aware that there was no evidence of authorisation from any persons other than the family of eight. 65 The conclusion at which I have arrived may be tested by having regard to the provisions of subs 61A(1): "(1) A native title determination application must not be made in relation to an area for which there is an approved determination of native title." 66 Imagine, contrary to my decision, that it was correct for the delegate to accept Mr Quall's application for registration and further assume that, in due course of time, the family of eight was successful in obtaining from this Court a determination of native title. Who would be the beneficiaries of that determination? It would not be the remaining members of the Danggalaba Clan because the application had not been made on their behalf and they had not authorised the application. The only beneficiaries would be the family of eight. The remaining members of the Danggalaba Clan would have no official status and would be denied the opportunity of seeking another determination of native title because of the provisions of subs 61A(1). 67 In the circumstances of this case, having identified an error in law in the delegate's reasons, it is appropriate for this Court to intervene. No point would be served in referring the matter to the delegate for further consideration. The conclusion that I have reached allows for only one answer: the material before the delegate was such that the application should not have been accepted for registration. In those circumstances I consider that it is appropriate for me to make an order quashing the delegate's decision with effect from the date of the decision - 31 May 2000. There should also be an order that Mr Quall pay the applicant's costs. There will not be an order for costs for or against the Registrar. There should, however, be a further order pursuant to par 16(1)(d) of the ADJR Act directing the Registrar to refrain from accepting for registration the application of Mr Quall in its present form. 68 The applicant also sought the following order: "An order directing that the Respondent (or his delegate) must not accept Mr Quall's amended application for registration pursuant to s 190A of the NTA, and directing that the Respondent remove Mr Quall's amended application from the Registrar of Native Title Claims (established under s 185 of the NTA)." 69 I do not consider that it would be proper to make any such order. It would require this court to assume that the proposed amended application would be flawed. Furthermore, in the competing claims of the Danggalaba Clan and the Larrakia People, the proposed order might deny the Danggalaba Clan access to this Court if it is their desire to pursue applications for a determination of native title. The competing merits of the Danggalaba Clan and the Larrakia People must eventually be resolved but this is not the occasion to resolve them: nor should the Court make orders that would or might inhibit a free and unfettered resolution of those problems. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Associate: Dated: Counsel for the Applicant: Mr D R Dalrymple

Solicitor for the Applicant: Dalrymple & Associates

Solicitor for the Respondent: Northern Land Council

Native Title Act 1993(Cth)ss 61, 62

Tribunal Administrative Decisions (Judicial Review) Act 1977(Cth)

Native Title Amendment Act 1998(Cth)

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (4)

Cases Cited (2)