Risk v Native Title Registrar

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant seeks judicial review in these two matters of decisions of the Registrar of the National Native Title Tribunal ("the Registrar") through a delegate made on 28 and 29 June 2000 to register under s 190A of the Native Title Act 1993 (Cth) ("the Act"), the native title claim application made by the second respondent Kevin Lance (Tibby) Quall ("Mr Quall"). In each case the native title claim application was made on 18 December 1996 but had been amended prior to the decision of the delegate of the Registrar. 2 The two applications by Mr Quall relate to land which has conveniently been called land in the Winnellie/Berrimah area in Darwin and land in the One Mile Dam area in Darwin. The land the subject of those claims overlaps, at least in part, with the land the subject of another application for determination of native title made to the Court, being application 6017 of 1998 (now part of consolidated proceedings 6033 of 2001) which is called the Larrakia/Darwin application. 3 The reasons for the decision of the delegate in each case are almost the same. The relevant section of the reasons concerns its consideration of s 190B(3) of the Act. In particular the delegate of the Registrar was satisfied that the persons in the native title claim group are named in the application or that the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in the group. 4 It is not necessary in this matter to refer in detail to the terms of the application. In each case the delegate of the Registrar ultimately was so satisfied. She identified the native title claim group to be the claimant group in the application, constituted of eight named individuals. 5 The delegate recorded : "From the above statements in the application and in his letter dated 6 April 2000 it confirms that [Mr Quall] and other members of the [Quall family] who form part of the native title claim group are a family group of the total clan. They acknowledge throughout the application, that the information applies to a broader group. However, it is quite clear in Schedule A that the native title claim group comprises eight individuals and these individuals have authorised the applicant, [Mr Quall], to make the application." 6 It was upon that basis, and that basis only, that the delegate of the Registrar was satisfied that all members of the native title claim group were named so that the application satisfied s 190B(3)(a). As noted earlier that was upon the premise that the native title claim group comprised only the eight named individuals and not the other members of the Dangalaba clan, of whom apparently Mr Quall and the eight persons named in the application were part. 7 The complaint of the applicant is that the delegate erred in law by treating those eight named persons as a native title claim group capable of making a native title claim for registration in that form. 8 The issue which arises was addressed by O'Loughlin J in Risk v National Native Title Tribunal [2000] FCA 1589. His Honour at [29] - [69] addressed the particular arguments now presented to a context which, so far as I can see, is relevantly the same as the present context. I can see no point of distinction between the facts which his Honour was there addressing and the present matters. In particular, I can see no point of distinction in the limited way in which the native title claim group was identified in the application to which each of these matters refers and as recognised by the Registrar's delegate in the decisions to register the claim. 9 In Risk v National Native Title Tribunal, O'Loughlin J observed, having referred to the extensive amendments to the Act in 1998, that the Act now ensures that applications can only be lodged on behalf of properly constituted groups, not individuals or small subgroups and at [29ff] explained his reasons for that conclusion. Having considered at length the relevant legislative provisions and the material as to the nature of the application in the matter (which as I say is in relevant respects the same as the material concerning the two matters now before the Court), his Honour concluded at [60] : "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. [His Honour is referring to passages which relevantly are in similar, if not identical, terms to the terms of the ruling of the delegate in the decision now under revision.] 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. 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." 10 I respectfully agree with his Honour's conclusion in that passage and with the reasons by which his Honour reached that conclusion. It follows that in each of these matters I consider that the delegate has similarly erred in accepting registration of the claims. 11 I therefore order that in matter number D14 of 2001 : 1. The decision of the delegate of the Registrar be set aside with effect from the date of the decision 28 June 2000; 2. The Registrar is to refrain from accepting registration of the application of Mr Quall in its present form. 12 In matter number D15 of 2001, I order : 1. The decision of the delegate of the Registrar be set aside with effect from the date of the decision of 29 June 2000; 2. The Registrar is to refrain from accepting registration of the application of Mr Quall in its present form. 13 In each of the matters it seems to me appropriate that the applicant and Mr Quall should bear his own costs. The first respondent appeared only to submit to any order the Court might make on the application. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.