The Additional Material
3 The State submitted that the 1998 amendments to the Act effected a significant change to the procedures to be undertaken with respect to an application for a native title determination. In North Ganalanja Aboriginal Corporation & Anor v The State of Queensland & Ors (1996) 185 CLR 595 the High Court had held, with respect to earlier provisions concerning acceptance of applications, that third parties had no right to put material forward. The statutory scheme was one which required the Native Title Registrar and the Presidential Member to consider whether an applicant had shown a good prima facie claim. That told against the proposition that the necessary opinion was to be formed on contentious materials supplied by third persons. I shall shortly turn to the current statutory scheme. One further aspect of the North Ganalanja Aboriginal Corporation case, which was relied upon by the State, was the recognition by the Court of natural justice principles in the event that either the Registrar or the Presidential Member had been at liberty to receive and consider material from third persons (621):
"If the Registrar or a presidential member were at liberty to receive from a third person and to consider information or material which casts doubts on the prima facie ability of an applicant to make out a claim, the Registrar or the presidential member would be bound to give the applicant an opportunity to answer and then, perhaps, to allow the third person and the applicant further opportunities to reply to each other before the Registrar or the presidential member formed an opinion on the question whether prima facie a claim could be made out. The proceeding which was intended to lead to the formation of a preliminary opinion would become - as happened in the present case - a contest between parties with opposing interests and the controversy would be settled not by agreement between "parties" or by decision of the Federal Court as the Act intends but by a presidential member acting administratively. That would be contrary to the method prescribed by the Act for determination of opposed claims - that is, determination by the Federal Court. Third persons seeking to defeat an application would be able to procure an administrative determination of the application before those persons became entitled to be parties to the application."
4 The State submits that the amendments effected in 1998 confirm the existence of such a right in the Minister for the State. Carr J held that to be the case in State of Western Australia v Native Title Registrar & Evans [1999] FCA 1594.
5 Section 61 (Part 3, Div 1) of the Act as amended provides for the applications that may be made to the Federal Court of Australia. They include native title determination applications. Section 62(1)(a) provides that a claimant application must be accompanied by an affidavit, sworn by the applicant, and containing statements that the applicant believes the statements in the application are true; that the interests claimed by the native title claim group have not been extinguished; that the area is not covered by an entry in the Native Title Register; and as to the applicant's authority. Of particular relevance is the requirement of subs(1)(b) that the application "must contain the details specified in subsection (2)", which is in these terms:
"(2) For the purposes of paragraph (1)(b), the details required are as follows:
(a) information, whether by physical description or otherwise, that enables the boundaries of:
(i) the area covered by the application; and
(ii) any areas within those boundaries that are not covered by the application; to be identified;
(b) a map showing the boundaries of the area mentioned in subparagraph (a)(i);
(c) details and results of all searches carried out to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application;
(d) a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;
(e) a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:
(i) the native title claim group have, and the predecessors of those persons had, an association with the area; and
(ii) there exist traditional laws and customs that give rise to the claimed native title; and
(iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;
(f) if the native title claim group currently carry on any activities in relation to the land or waters - details of those activities;
(g) details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title;
(h) details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.
6 Section 62(1)(c), by contrast, provides that an application may contain the following details:
"(c) …
(i) if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application - that traditional physical connection; or
(ii) if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application - the circumstances in which the access was prevented."
7 Upon receipt of an application for native title determination the Registrar of the Federal Court of Australia is obliged to give to the Native Title Registrar of the Tribunal, as soon as practicable, a copy of the application, the affidavit referred to above and any prescribed documents that accompany the application pursuant to s 61(5)(d) see: s 63. Nothing here turns on these lastmentioned documents.
8 Section 66 then requires the Registrar (as I shall continue to call the Native Title Registrar) to provide information, or to give notice to certain parties after the referral of the application under s 63. As will shortly be discussed, the Registrar has an important function to perform in relation to the registration of claims but s 66 and s 190A(3)(c) make it clear that the Registrar is first to provide the information, to which I shall now refer. Section 66(2) provides:
"(2) If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the Registrar must, as soon as is reasonably practicable, give the State Minister or Territory Minister for the State or Territory a copy of:
(a) the application; and
(b) any other documents that the Registrar of the Federal Court gives the Native Title Registrar under section 63 in relation to the application."
9 Particular reliance was placed by the respondents upon subs(2)(b) as confining the documents that must be provided by the Registrar to the State as those provided upon the referral and no more. Subsection (3) goes on to provide that notice of the "details of" the application, be provided to various persons, bodies and the public. This notice is not however to be provided until the Registrar has determined the question of registration under s 190A (see s 66(6)(a)).
10 The determination by the Registrar ("the registration test") is distinct from any native title determination, which may proceed regardless of whether the claim is registered. Registration confers valuable rights and in particular the right to negotiate with respect to future acts which might affect the land or waters and rights associated with them. Section 190A(3) provides:
"(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."
11 Section 190A(6) provides that the Registrar must accept the claim for registration "if it satisfies all of the conditions in:(a) s 190B (which deals mainly with the merits of the claim); and (b) s 190C (which deals with procedural and other matters)". Section 190C(2) requires:
"(2) The Registrar must be satisfied that the application contains all the details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62."
12 It is necessary to set out most of the provisions of s 190B:
"Registration: conditions about merits of the claim
(1) This section contains the conditions mentioned in paragraph 190A(6)(a).
Identification of area subject to native title
(2) The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.
Identification of native title claim groups
(3) The Registrar must be satisfied that:
(a) the persons in the native title claim group are named in the application; or
(b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.
Identification of claimed native title
(4) The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.
Factual basis for claimed native title
(5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:
(a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and
(b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and
(c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
Prima facie case
(6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.
Physical connection
(7) The Registrar must be satisfied that at least one member of the native title claim group:
(a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or
(b) previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by:
(i) the Crown in any capacity; or
(ii) a statutory authority of the Crown in any capacity; or
(iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease."
13 It will be observed that the provisions concerning the information which may be provided to, or obtained by, the Registrar and the test for acceptance represent significant shifts from the regime with which the Court was concerned in the North Ganalanja case. In particular, there is an opportunity now provided to a State to provide information which may be relevant to the conditions in ss 190B and 190C and whether they are satisfied. It has been observed that the scheme of the Act now is not that registration will be granted "without input from others" (Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia & Anor (1996) 149 ALR 78, 91; State of Western Australia v Native Title Registrar & Evans [33]. As Carr J observed in the lastmentioned case, s 190A(3)(c) implicitly recognises the right of the State to provide information to the Registrar which is relevant to the decision on registration; and the Registrar is obliged to have regard to it, to the extent that it is reasonably practicable to do so and to the extent that the Registrar considers it to be relevant.
14 Carr J went on to hold that, in this background, procedural fairness required the Registrar to furnish to the State at least the substance of any additional material which was furnished by the native title claim group to the Registrar in the course of making the registration decision. In addition, in the circumstances of that case, there was a reasonable expectation created, on the part of the State that the Registrar would provide further information upon which he intended to rely. (Such a submission is not pressed here).
15 It was submitted before his Honour, as it was here, that the purpose of s 66(2) was simply to enable the State to consider whether to make an application to strike out the claim under s 66(4). His Honour held that there is no reason apparent why the requirement to provide the materials to the State should be given such a narrow purpose, and I respectfully agree.
16 In State of Western Australia v Native Title Registrar & Evans the Registrar's statement of reasons itself disclosed that the Registrar had relied upon the material in coming to his decision about registration. In the present case the delegate's reasons disclose that the two affidavits received by the Registrar appear to have been relied upon by him in connection with the requirements of both s 62(2)(e) and s 190B(5), which is to say the factual basis for the claimed native title. When the matter first came on for hearing reference was not made to the body of the material in question, because of the respondents' claims to confidentiality, which the State did not seek to challenge.
17 The State's grounds for judicial review rested upon the material being obviously relevant to the decision about registration and the fulfilment of s 190B, matters upon which it was entitled to comment. During the hearing I expressed my concern about whether it was necessary to have regard to procedural fairness principles, since it appeared arguable that the additional material provided in fact formed part of the application. If that were the case the State would be entitled to the affidavits, or details of their contents, as a matter of course and subject to questions of confidentiality. If the material could not be so described it seemed to me that it may well be necessary to determine what other category or description it fell into. It did not seem to me appropriate to determine questions of procedural fairness without an appreciation of what the documents conveyed and where that information fitted in, given the statutory background. These considerations formed the basis for my order that the affidavits be made available to the State's legal advisers on a confidential basis and to the Court. It was not necessary in that process to determine whether there was a substantial basis for the claim to confidentiality. The two affidavits in question were made by two of the native title claim group members and refer to matters relating to the activities of the Wulgurukaba People and the claim area, from which native title rights and interests might to an extent be inferred. It will be recalled that s 62(2)(d) required the application to contain details of the description of the native title rights and interests claimed. Paragraph (e) requires that there be provided a general description of the factual basis for the assertion of the existence of native title rights and interests. Schedule E to the application here described the rights and interest claimed in ambit terms:
"A description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests).
The rights and interests of common law holders of native title derived from and exercisable by reason of, the existence of native title, in particular the right:-
- to possess, occupy, use and enjoy the claim area
- to make decisions about the use and enjoyment of the claim area;
- of access to the claim area;
- to possession as against the whole world
- to control the access of others to the claim area
- to use and enjoy the resources of the claim area;
- to trade in the resources of the claim area;
8. to receive a portion of any resources taken by others from the claim area;
9. to maintain and protect places of importance under traditional laws, customs and practices in the claim area;
10. to maintain, protect and prevent the misuse of cultural knowledge of the native title claim group associated with the claim area.
11. to all minerals not wholly owned by the crown.
…"
Schedule F should have contained the description of the factual basis for those assertions, as required by s 62(2)(e). The title to the form did not seem to focus upon the need to provide something of the factual basis. It was entitled "General Description of Native Title Rights and Interests Claimed". The information provided was:
"The Native Title rights and interests are those of and flowing from the right to possession occupation use and enjoyment of the claim area as detailed in schedule E, pursuant to the Traditional Laws and Customs of the Native Title Claim Group based upon the following facts:
(i) the Native Title Claim Group have and the predecessors of those persons had, an association with the claim area; and
(ii) there exists traditional laws and customs that give rise to the Native Title rights and interests claimed as detailed in Schedule E; and
(iii) the Native Title Claim Group have continued to hold the Native Title in accordance with those traditional laws and customs."
18 Schedule F went no way towards compliance with s 62(2)(e) in my view. This may well be what prompted communication between the Tribunal and the Council which resulted in the provision of the two further affidavits. The delegate then utilised that information as providing the details required of the factual basis for the assertions in Schedule E, as the reasons for the registration determination disclose. I do not comment upon the sufficiency of the material for that purpose. For present purposes it may be observed that without that material s 62(2)(e) could not have been said to have been complied with at all.
19 The respondents maintain their position that the material was not intended to be, and should not be regarded as, part of the application. They submit that it fell into the category of "other documents" supplied which may be considered by the Registrar or delegate under s 190A(3)(a). Even if the additional material included subject matter which might have been dealt with in the application, it was not in fact provided as part of that document. It was not then amongst the materials supplied to the Tribunal, which it was in turn obliged to provide to the State.
20 The position adopted by the respondents overlooks the statutory obligation, on the part of the Registrar or delegate, to ensure that the application contains all of the information required by s 62. This is part of the registration test: s 190C(2). The logical result of the respondents' contention, that the affidavits were not to be taken as part of the application, would be that the registration test must fail. It would also follow that there was no evidence to found the delegate's decision with respect to s 62(2)(e).
21 It is not necessary to consider, at this point, whether there might be "additional materials" which might be considered by the Registrar but need not be provided to the State. In my view where there is material later furnished, which is to be used to furnish the detail required by the statute in the application, the application should reflect these changes. The information here required by s 62(2)(e) is clearly part of the application filed in Court and changes to it should be notified to the Court and the parties in the manner prescribed, which is to say by a process of amendment: and see Strickland & Anor v Western Australia & Ors (1999) 89 FCR 117. Had such an application been made, the State would have been made aware of the new detail, either on or following the application and these proceedings would have been largely unnecessary. Other parties would also be notified after amendment: see s 64(4).
22 I should add that s 64, which is expressed to deal with amendments, does not appear to me to be intended to limit the amendments which can be made to those specifically dealt with by the section (changes to area or applicants in group claims). It is of some importance that s 64(3) does allow for amendments to an application to be made despite the fact that the Registrar is considering it in connection with registration.
23 On any view of the matter the delegate's decision is affected by error of law. There was, as earlier observed, no basis for the decision with respect to the s 62(2)(e) information and s 190C(2) required that it be established that the material had been provided: see s 5(1)(h) and 5(3)(a) Administrative Decisions (Judicial Review) Act 1977. If the additional information was to be regarded as part of the application, procedures required to be observed in connection with the decision were not observed: s 5(1)(b). The State sought an order in the nature of mandamus on the basis of breach of the statutory obligation to provide a copy of the application, but this does not seem to me to be an appropriate order in the circumstances. The decision should be set aside and the matter remitted for determination according to law, either by the Registrar or another delegate. The question of the sufficiency of the information in the application and the use to which the further material is to be put may also be assessed by the respondents.
24 I add that in other cases the principles of procedural fairness may arise for consideration in connection with material which is truly "additional", which is to say where it is not to be assessed as part of the details required of the application. As a starting point, a consideration as to whether the material was surplus to the requirements of s 62 should in many cases resolve whether the State, or some other party referred to in s 66(2) or (2A), should be provided with it.
25 In Western Australia v Strickland & Ors (2000) 99 FCR 33, [78] and [79], the Full Court upheld the decision of French J that a Registrar is not confined by s 190B(4) or (5) to the information provided in the application. There the additional material was from anthropologists. It may be considered that such evidence may go beyond what is required to be set out in the application. Section 62(2)(c) may itself provide an example of what I have just referred to. It may generally be observed that there is a correspondence between the provisions of s 62 and s 190B (see s 62(2)(a), (b) and s 190B(2); s 62(2)(d) and s 190B(4)). It may be inferred that the application is to furnish much of the information for the Registrar's purpose. It will also provide an outline of the claims for other parties, such as the State, who are entitled to comment upon whether s 190B (and s 190C) are met in connection with registration. Section 62(2)(e) does not entirely correspond with s 190B(5). It requires that a "general description" of the factual basis for the assertions of the existence of native title rights and interests be provided in the application. Section 190B(5) may require more, for the Registrar is required to be satisfied that the factual basis asserted is sufficient to support the assertion. This tends to suggest a wider consideration, of the evidence itself, and not of some summary of it.
26 It may also be recalled that s 62(1)(c) does not require that details of the traditional physical connection of any member of the claim group to the area, or their prevention from gaining access to it, be provided in the application. If it was provided the State would be entitled to it as it formed part of the application. Section 190B(7) requires the Registrar to reach a level of satisfaction in relation to traditional physical connection. At some point prior to this consideration the native title claimants must provide some such information, but the statute does not expressly require any subsequent material on this topic to be provided to the State. It may fall within the description of information "…in any other documents provided by the applicant", to which the Registrar is to have regard under s 190A(3)(a).
27 In an appropriate case the question whether an intention to exclude the common law rules of procedural fairness is said to arise from provisions such as this, or the statutory scheme as a whole, may receive further consideration: (Kioa & Ors v West & Anor (1985) 159 CLR 550, 554; Annetts & Anor v McCann & Ors (1990) 170 CLR 596, 598). It is not necessary to further consider it here.