Strickland v Native Title Registrar

Federal Court of Australia|1999-11-04|Before: French J

Introduction 1 Three native title applications covering land in the Goldfields area were lodged on behalf of the Maduwongga people by Marjorie May Strickland and Anne Joyce Nudding in April 1994, April 1995 and April 1998. All applications were lodged with the Native Title Registrar under the provisions of the Native Title Act 1993(Cth) as it stood prior to the Native Title Amendment Act 1998 (Cth) (the old Act). They were combined by order of this Court on 17 February 1999. The combined application was referred to the Native Title Registrar in accordance with the provisions of the Native Title Act 1993 as amended by the 1998 amendments (the new Act). It was referred for consideration of whether details of the claim in the application should be included in the Register of Native Title Claims. The Registrar's delegate declined to include the details in the Register on the basis that the application failed to meet one of the statutory conditions attaching to such registration under the new Act. That condition requires that there be no common membership between the native title claim group of the application under consideration and the native title claim group of any overlapping application which was already registered under the new Act when the subject application was made. 2 The applicants seek judicial review of the Registrar's decision, relying primarily on the statutory review process for which s 190D of the Act provides but invoking also, albeit somewhat academically, the Administrative Decisions (Judicial Review) Act 1975 (Cth) and s 39B of the Judiciary Act 1903. For all practical purposes the case has proceeded as an application for review under s 190D. 3 The State of Western Australia, which was joined as a respondent to the proceedings, concedes that the delegate's decision on the challenged point relating to overlapping applications reflected an incorrect construction of the relevant statutory condition. However, the State maintains that registration should have been declined on other grounds relating to the sufficiency of the information provided in the application and its supporting affidavit. These contentions raise questions of the proper construction of some of the statutory criteria for registration concerning the description of the land covered by the application, the authority of the applicants to bring the application, the description of the native title rights and interests asserted and the factual basis of that assertion. The constructional questions necessarily also require consideration of the broader purposes of the Act in relation to the registration of native title claims. 4 The Native Title Registrar while properly not adopting an adversarial position in relation to these proceedings has, at the request of the Court, provided submissions by way of assistance to the Court.

Statutory Framework 5 By operation of the 1998 amendments to the Native Title Act all native title determination applications commenced on or after 30 September 1998 are instituted in the Federal Court. Native title applications which were lodged with the Register of Native Title under the Act as it stood before the amendments, and which had not been referred to the Federal Court under s 74 of the Act, became proceedings in the Federal Court by operation of the transitional provisions of the amendments. The relevant transitional provisions are set out in Part 3 of Schedule 5 of the Native Title Amendment Act 1998. 6 Division 3 of Part 2 of the Native Title Act sets out the conditions to be satisfied if future acts affecting native title are to be valid. Future acts are defined in s 233 of the Act and cover the making, amendment or repeal of legislation on or after 1 July 1993 and any other act that takes place on or after 1 January 1994. In the case of certain classes of future acts covered by ss 24IC and 24MD the validity of the acts depends upon satisfaction of the requirements of Subdivision P which affords to registered native title claimants what is broadly called a right to negotiate about certain classes of proposed future acts. Section 25, which is the first section in Subdivision P, sets out a convenient overview of its provisions: "(1) In summary, this Subdivision applies to certain future acts done by the Commonwealth, a State or a Territory that are of any of the following kinds: (aa) certain acts covered by section 24IC (which deals with permissible lease etc renewals); (a) certain conferrals of mining rights; (b) certain compulsory acquisitions of native title rights and interests; (c) other acts approved by the Commonwealth Minister. (2) Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act. (3) If they do not reach agreement, an arbitral body, or a Minister, will make a determination about the act instead. (4) If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that if affects native title. (5) States and Territories may make their own laws as alternatives to this Subdivision. The Commonwealth Minister must be satisfied as to certain matters before such laws can take effect." 7 Subdivision P applies to a future act if it falls into the relevant category and the act is done by the Commonwealth, a State or a Territory, designated "the Government party" (s 26(1)). Before such an act is done, the Government party must give notice of it in accordance with s 29. It must give notice to any registered native title claimant in relation to any land or waters that will be affected by the act. It must also notify other specified bodies and the public (s 29(3)). The Act defines "negotiation parties" who must negotiate with each other in good faith with a view to reaching agreement about the doing of the act or the doing of the act subject to conditions to be complied with by any of the parties. The negotiation parties are the Government party, any native title party and any grantee party. Native title parties include registered native title claimants in relation to the land and waters affected by the act and any person who, four months after the notification day prescribed by subs 29(4), is a registered native title claimant in relation to any of the land or waters affected by the act. There are other requirements and conditions which it is not necessary to canvass for present purposes. 8 By s 31 of the Act the Government party is required to give all native title parties an opportunity to make submissions to it in writing or orally regarding the act and the Government party, the native title parties and any grantee party must negotiate in good faith with a view to reaching agreement about the doing of the act. If six months have passed since the notification day without any agreement being reached, then any of the negotiation parties may apply to the arbitral body, in this case the National Native Title Tribunal, for a determination under s 38 in relation to the act. A determination under s 38 is a determination that the act must not be done or that it may be done or that it may be done subject to conditions to be complied with by any of the parties (s 38(1)). 9 The reference to these elements of the future act provisions of the Native Title Act is sufficient to indicate that registration of a native title claim confers upon the registered applicants important procedural rights. It constrains the ability of the State Government to proceed to do a valid future act until, in the case of those acts to which Subdivision P applies, it has negotiated an agreement with the applicants or secured an arbitral determination that the act may be done. 10 Many of the elements of the statutory scheme setting up the right to negotiate process were in place under the old Act. In the joint judgment in North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595 it was said of the previous regime at 616: "…once an application for determination is accepted, the Act maintains the status quo between the registered native title claimant on the one hand and the Government and those having proprietary interests or seeking rights to mine on the other, unless the parties negotiate and agree on the resolution of their respective claims or a competent authority makes a binding decision." 11 The process of registration has been significantly changed as a result of the 1998 amendments. Prior to those amendments judicial construction of the old Act required that registration occur immediately upon lodgment of a claim with the National Native Title Tribunal (Northern Territory v Lane (1995) 59 FCR 332; Kanak v National Native Title Tribunal (1995) 61 FCR 103). The acceptance of claims which followed upon registration was treated as an ex parte process in which the Native Title Registrar was required to decide, on the face of materials provided by the applicants, whether or not to accept their claim. In so doing, the Registrar was not permitted to resort to extraneous material and, in particular, was not permitted to receive evidence or submissions from third parties - North Ganalanja Aboriginal Corporation (supra) at 620-621. 12 The statutory process of acceptance by the Registrar no longer exists as applications are now commenced as proceedings in the Federal Court. However, the Registrar is required to consider applications for native title determinations to decide whether they should be placed on the Register of Native Title Claims. Upon such registration the claims attract the right to negotiate outlined above. There is provision also for the registration test to be administered in respect of claims already on foot prior to the amendments even though, by virtue of their lodgment under the old Act, they were on the Register of Native Title Claims. It is unnecessary for present purposes to set out the various circumstances in which the registration test may be applied to pre-amendment claims. Suffice it to say that a very large proportion of pre-amendment claims may be subject to the Registrar's scrutiny for the purpose of determining whether or not they should remain on the Register. 13 A significant difference between the law as it stood prior to the amendments and the post-amendment law is that the Registrar must be satisfied of a number of conditions before a claim may be placed on the Register. Section 190A(6) provides: "The Registrar must accept the claim for registration if the claim satisfies all of the conditions in: (a) section 190B (which deals mainly with the merits of the claim); and (b) section 190C (which deals with procedural and other matters). In any other case, the Registrar must not accept the claim for registration." 14 The conditions relating to the merits of claims set out in s 190B require, inter alia: 1. Identification of the area subject to native title. (s 190B(2)) 2. Identification of the native title claim groups. (s 190B(3)) 3. Identification of the claimed native title. (s 190B(4)) 4. Demonstration of a factual basis for the native title claim. (s 190B(5)) 5. The Registrar must consider that prima facie at least some of the native title rights and interests claimed in the application can be established. (s 190B(6)) 6. At least one member of the native title group must have or previously have had a traditional physical connection with any part of the land or waters covered by the application or previously had and would reasonably have been expected currently to have a traditional physical connection but for things done by the Crown or a statutory authority of the Crown or a holder of a lease over any of the land or waters. (s 190B(7)) The application and accompanying documents must comply with the requirements of s 61A which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts (s 190B(8)). Previous exclusive possession acts and previous non-exclusive possession acts are defined in ss 23B and 23F of the new Act. There is also a condition excluding registration in the case of applications in areas where native title rights and interests have been extinguished (s 190B (9)). Section 190C sets out the procedural conditions. These relate to the provision of all information and materials required for applications by ss 61 and 62 (s 190C(2)), the absence of any prior registered overlapping claims with common membership (s 190C(3)), the certification by a representative body of the authority of the applicants to bring the application (s 190C(4)) and requirements for uncertified applications (s 190C(5)). 15 It is convenient to set out the statutory provisions relevant to the contentions of the applicant in relation to the overlapping claims condition and those relevant to the other contentions raised by the State of Western Australia. 16 It is convenient to begin with s 62 which, in the relevant part provides: "62(1) A claimant application (see section 253): (a) must be accompanied by an affidavit sworn by the applicant: (i) that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and (ii) that the applicant believes that none of the area covered by the application is also covered by an entry in the National Native Title Register; and (iii) that the applicant believes that all of the statements made in the application are true; and (iv) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and (v) stating the basis on which the applicant is authorised as mentioned in subparagraph (iv); and (b) must contain the details specified in subsection (2); and (c) not material for present purposes (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) and (h) are not material for present purposes. Section 190B sets up "merits" conditions for registration. Relevant parts of the provision for present purposes are: "(1) This section contains the conditions mentioned in paragraph 190A(6)(a). (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. . . . (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. (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." Subsection (6) to (9) are not material for present purposes. 17 In s 190C, which deals with procedural and other conditions, it is provided: "(1) This section contains the conditions mentioned in paragraph 190A(6)(b). (2) The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62. (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. (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. (5) If the application has not been certified as mentioned in paragraph (4)(a) the Registrar cannot be satisfied that the condition in subsection (4) has been satisfied unless the application: (a) includes a statement to the effect that the requirement set out in paragraph (4)(b) has been met; and (b) briefly sets out the grounds on which the Registrar should consider that it has been met." Subsections (6) and (7) are not material for present purposes. 18 The concept of authorising the making of an application is defined in s 251B which provides: "For the purposes 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 title 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." Reference will also need to be made to the transitional provisions of the Amendment Act set out in Schedule 5 to that Act which provide, inter alia, that applications pending under the old Act at the time the amendments came into force are taken to have been made to the Federal Court. The relevant provisions of the Amending Act came into effect on 30 September 1998. 19 Finally it is important to bear in mind the main objects of the Act as defined in s 3, which provides: "The main objects of this Act are: (a) to provide for the recognition and protection of native title; and (b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealing; and (c) to establish a mechanism for determining claims to native title; and (d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title."

History of the Proceedings 20 The first Maduwongga native title determination application was lodged with the Native Title Registrar on 19 April 1994 by Marjorie Strickland and Anne Nudding. It was accepted, under s 63 of the Native Title At 1993 (Cth), as it then was, on 12 October 1995. The application was given the National Native Title Tribunal (NNTT) file number, WC94/3. Following unsuccessful attempts to resolve the matter through mediation, it was referred to this Court on 27 May 1998 and given the Court number WG63 of 1998. 21 The second Maduwongga native title determination application, by the same applicants, was lodged with the Native Title Registrar on 6 April 1995 and accepted under s 63 on 18 September 1995. It was given the NNTT file number WC95/11. Mediation proving unsuccessful in this matter also, it was referred to the Court under s 74 of the Act on 30 June 1997 and given the Court file number WAG76 of 1997. 22 A third Maduwongga native title determination application, again brought by the same applicants, was lodged with the Native Title Registrar on 8 April 1998. It was given the NNTT file number WC98/20. Pursuant to the amendments to the Native Title Act it became a proceeding in this Court on 30 September 1998 and was given the Court number WG6237 of 1998. Details of each of the applications were placed upon the Register of Native Title Claims. 23 On 3 July 1998, orders were made by Carr J whereby the application WG63 of 1998 (Maduwongga No 1) was consolidated with WG76/97 (Maduwongga No 2). The consolidated proceedings were thereafter to bear the Court file number "WG76 of 1997 and 63 of 1998". 24 On 28 January 1999 a motion was filed on behalf of the applicants in the consolidated proceedings moving for orders that the three Maduwongga proceedings be "combined" and the combined application be amended in accordance with a proposed amended application annexed to an affidavit filed in Court by the applicants' solicitor. Orders were also sought that the proceedings comprising applications WG76/1997 and WG63/1998 be consolidated. On the face of it the motion seems to have disregarded the consolidation order made by Carr J on 3 July 1998. The motion came on for hearing before Nicholson J who, on 17 February 1999, made orders revoking the consolidation order made by Carr J on 3 July 1998 and his Honour also ordered that WG76/1997 be amended so that it was henceforth combined with and included applications WG63/1998 and WG6237 of 1998. His Honour ordered that the three applications be combined and continued in and under the application number WG76 of 1997. WG76 of 1997 was amended to take the form set out in the proposed amended application annexed to the affidavit of the applicants' solicitor. 25 On 8 June 1999 a delegate of the Native Title Registrar decided, pursuant to s 190A of the Native Title Act, that the combined application should not be accepted for inclusion of details of the claims made under it in the Register of Native Title Claims. The basis upon which that decision was taken was that the application failed to comply with the requirements of s 190C(3). That provision requires that the Registrar be satisfied that no person included in the native title claim group for the application was a member of the native title claim group for another previous application already on the Register of Native Title Claims when the current application was made where the previous application was on the Register as a result of consideration under the provisions of s 190A. The relevant prior registered application was the Wongatha application, WG6005/98. It was said by the Registrar's delegate not to be in dispute that there are members common to each of the Maduwongga and Wongatha claims. There being persons common to the two applications and the previous application having been found to comply with s 190A of the Act, what remained to be considered was whether an entry relating to the claim in the previous application was on the Register of Native Title Claims "when the current application was made". The delegate's decision then turned on the meaning of the phrase "when the current application was made" which appears in s 190C(3). 26 In addressing that question he looked at the applications which had been combined into Maduwongga and into Wongatha respectively. He posed the question for himself whether any of the separate pre-combination Wongatha applications which overlapped any of the pre-combination Maduwongga applications were on the Register when any of the pre-combination Maduwongga applications were made. He found there were no pre-combination Wongatha claims that were on the Register before Maduwongga No 1 and 2. However, Maduwongga No 3 was registered on 8 April 1998. It was overlapped by five pre-combination Wongatha claims which were on the Register prior to 8 April 1998. There were therefore five applications now combined to form the Wongatha application which overlapped an application now combined to form the Maduwongga application and which were made and registered prior to that application being made. The Maduwongga combined application on that basis was found not to satisfy the conditions in s 190C(3). 27 An application for an order for review of the Registrar's decision was filed on 6 July 1999. The grounds of the application were: 1. The Registrar's delegate breached the rules of natural justice when the decision was made not to accept the Maduwongga claim for registration. 2. The delegate improperly exercised his power to decide not to enter the Maduwongga claim on the Native Title Register in that he exercised the power in a manner so unreasonable that no reasonable person could have so exercised the power. 3. The delegate improperly exercised the power conferred on it by the Native Title Act, s 202(4)(e), in that he failed to take into account a relevant consideration, namely that the combined Wongatha claim did not include the Maduwongga within the native title group of the combined Wongatha claim.

The Operation of the Overlap Condition - Section 190C(3) 28 The overlap condition set out in s 190C(3) is to be read with s 190A(6) which provides inter alia that: "The Registrar must accept the claim for registration if the claim satisfies all of the conditions in: . . . (b) section 190C (which deals with procedural and other matters) In any other case, the Registrar must not accept the claim for registration."

29 "Any other case" includes a case in which any of the conditions in s 190C is not "satisfied". The condition in s 190C(3) is not satisfied if the Registrar is not satisfied that no person included in the native title claim group for the application under consideration was a member of the native title group for any previous application which answers the criteria set out in s 190C(3) (a), (b) and (c). To determine whether this condition is satisfied the Registrar can proceed first to identify any previous application covering the whole or part of the area covered by the current application. He would then have to determine whether there was an entry relating to the claim in the previous application which was on the Register of Native Title Claims when the current application was made. He would also have to ascertain whether that previous application had been considered under s 190A and whether, as a result of that consideration, the relevant entry was either made or, if pre-existing, was not removed pursuant to that consideration.

30 In the present case there was a number of applications which had overlapped the applications that were combined to form the combined Maduwongga application. A number of these overlapping applications were combined, by order of the Court on 22 January 1999, to form the combined Wongatha application which was given the lead Federal Court file no. WG 6005/98. Overall some twenty applications made up the combined Wongatha application. A further amendment was made to that combined application on 22 February 1999. The amended combined Wongatha application was considered under s 190A by the Native Title Registrar in accordance with his obligations under s 190A(1). It was accepted for registration pursuant to s 190A on 26 February 1999. That was the relevant date from which it could be said, in terms of s 190C(3)(b) that there was on the Register an "entry made or not removed as a result of consideration of the previous application under s 190A". The date of the registration decision with respect to the combined Wongatha application is taken from the Court file in relation to that application, which includes a copy of the decision of the delegate of the Native Title Registrar under s 190A.

31 The question that follows is whether it could be said that the combined Maduwongga application was "made" before or after that date. If the application were made before that date, then s 190C(3) could not apply to prevent its inclusion in the Register of Native Title Claims. For a subsection to operate there must be a s 190A tested entry in place on the Register in respect of the "previous" application at the time when the "current" application is made.

32 The Registrar's delegate approached this question by asking whether "any of the separate pre-combination Wongatha applications which overlapped any of the pre-combination Maduwongga applications were on the Register when any of those pre-combination Maduwongga applications were made". On any view, this was an erroneous test because it omitted to address the requirement that a relevant previous application must be on the Register "as a result of consideration of the previous application under s 190A". In this case, none of the previous applications relied upon by the delegate was the subject of consideration under s 190A prior to any of the pre-combination Maduwongga applications being made. So, even if the condition under s 190C(3) is applied to the various pre-combination applications as it was in this case, the condition must be satisfied. That is to say, the delegate erred in finding that the Maduwongga combined application did not satisfy the condition in s 190C(3).

33 The conclusion thus reached assumes the correctness of the delegate's approach in treating pre-combination applications as the relevant classes of current and previous applications for the purposes of s 190C(3). There is an underlying constructional question, however, which is not easy of resolution in relation to the combined applications namely - when was the "current application", ie that being considered under s 190A, "made" for the purposes of s 190C(3)(b)?

34 Section 13 of the new Act says that an "application may be made to the Federal Court under Part 3...for a determination of native title...". Section 61(1) sets out in tabular form the applications which it provides "may be made under this Division to the Federal Court and the person who may make each of those applications". These include native title determination applications. There is no express definition of the process of "making" an application, but subs 61(5) requires that an application must:

"(a) be in the prescribed form; and (b) be filed in the Federal Court; and (c) contain such information in relation to the matters sought to be determined as is prescribed; and (d) be accompanied by any prescribed documents and any prescribed fee." 35 The above elements, in my opinion, together describe what is involved in making an application for the purpose of s 61. The only action, temporally defined, is the act of filing in the Federal Court. That is the time when a new application is "made" under the new Act. That is also the time when such an application is "made" for the purposes of s 190C(3)(b). In the case of an application given to the Registrar under the old Act, the transitional provisions apply. The relevant provisions are found in the table comprising Item 6 of Part 3 of Schedule 5 to the Amendment Act. In any cases of applications which had proceeded under the old Act up to and beyond the point where notification had been completed, the application was "taken to have been made to Federal Court". Where the application had been referred to the Federal Court under s 74 of the old Act, then it was "taken to have been made to the Federal Court" and the Federal Court was taken to have made an order under subs 86C(1) of the new Act that mediation cease (Schedule 5 Part 3 Item 8). The term "application is taken to have been made to the Federal Court" is defined in Item 36 of Schedule 5 thus: "(a) the application is to be treated as if it were made to the Federal Court under the relevant provisions of the new Act; and (b) the Native Title Registrar must give the application to the Federal Court, but section 63 of the new Act does not apply in relation to the application." 36 The condition imposed by s 190C(3) can only relate to previous applications overlapping a current application where the previous application has been the subject of an entry made on the Register or not removed from it as a result of consideration under s 190A. That process only came into existence on 30 September 1998. The making of applications must relate to applications actually made under the new Act or taken to have been made to the Federal Court by virtue of the transitional provisions. The earliest date upon which an application could be made or be taken to have been made to the Federal Court was 30 September 1998. The Native Title Registrar in considering s 190C(3)(b) will therefore be dealing with applications made under the new Act after 30 September 1998 or taken to have been made on that date. 37 The pre-combination Maduwongga applications are all taken to have been made on 30 September 1998 for this purpose. The combined application is not a new application. The new Act treats combination as a species of amendment (s 64(2)). It follows that in the case of a combination of old Act applications, the combined application, like its components, is taken to have been made on 30 September 1998. 38 A more difficult case may arise where a new Act application is combined with an old Act application or with an earlier or later new Act application or perhaps a mix of all categories. This may arise particularly in the case of so called "polygon" claims - lodged, for the purpose of quick registration, to coincide with the boundaries of a proposed mining tenement - where it is desired to combine them with a later application covering the whole of the asserted traditional country of the relevant native title claim group. The application to be tested for registration following combination is that which has been "amended" by the combination process. There may be judgments of degree to be made in identifying the relevant application for that purpose. The case is clear where a "country" application is combined with "polygon" applications. It is the "country" application, as so amended, which is tested for registration following amendment. The date upon which the country application was filed in the Federal Court in the case of a new Act application, or 30 September 1998 in the case of an old Act application, is the date it was "made" for the purposes of s 190C(3)(b). The approach I have indicated is reflected in the practice of the Court which designates one of a number of combined applications as the "lead application" although it is not suggested that that designation itself determines the issue. 39 For these reasons, in my opinion, the general approach adopted by the delegate requires reconsideration. It has led to refusal of registration on a wrong basis as already outlined in relation to the relevant date of entry on, or non-removal from, the Register of Native Title Claims. 40 The State, in its submissions, conceded that the Registrar was in error in his calculation of the relevant dates for the purposes of s 190C(3), albeit the State maintained that the current application, the combined Maduwongga application was "made" on 17 February 1999. That was the date of the combination order by Nicholson J. For reasons already stated, I do not accept that contention but the outcome is the same, that is, the application should not have been found not to satisfy the conditions of s 190C(3).

The Applicants' Grounds of Review 41 The applicants' grounds of review have to do, in part, with the process adopted by the delegate in dealing with the question of overlap. Thus it was said that, in breach of the rules of natural justice, the delegate had taken account of the reasons for registration of the combined Wongatha application in making the decision under review and had done so without giving to the applicants an opportunity to comment upon those reasons or upon the content of the combined Wongatha application. A second natural justice complaint involved the assertion that the applicants had made a submission proceeding on an assumption that none of the pre-combination Wongatha applications was on the Register when the combined Maduwongga application was made. There was also said to have been an erroneous assumption of overlap of the claimant groups on the part of the applicants. The Registrar, it was said, should have informed the applicants that the decision was proceeding on a different assumption about the presence of pre-combination Wongatha claims on the Register when the Maduwongga application was made. 42 These matters, in my opinion, are academic, as are the other grounds relating to unreasonableness and improper exercise of power all of which relate to the delegate's application of the conditions imposed by s 190C(3) to the combined Maduwongga application.

The State's Contentions 43 While conceding that the delegate erred in the construction of s 190C(3), the State contended that there were other grounds upon which he should have refused to include details of the combined Maduwongga application on the Register of Native Title Claims. The State sought to justify its position in raising these contentions, opposing registration of the claims in the combined Maduwongga application, by reference to the powers of the Court to deal with all matters in controversy between the parties so as to avoid a multiplicity of litigation. The State also referred to the provisions of s 28 of the Federal Court of Australia Act dealing with the powers of the Court in the exercise of its appellate jurisdiction. That element of its submissions was misconceived. This case does not involve an exercise of the appellate jurisdiction of the Court but rather, its original jurisdiction. The nature of the review process has been discussed by Kiefel J in Powder v Registrar, National Native Title Tribunal & Others [1999] FCA 913, with which I respectfully agree. After reviewing the provisions of the Act relating to the administration of the registration test her Honour there said: "The nature of the Registrar's decision, and the materials provided for, upon which it is based, is such as to be suitable for review in the administrative law sense. The function to be undertaken by the Registrar is not one which could readily be undertaken by the Court, which lacks necessary knowledge of other native title applications and would involve it in searches for information before fact-finding. There is no authorisation of a rehearing by the Court to be gleaned from the Act and the provisions surrounding those in question. What is provided for is a review of the legality of the Registrar's decision on the established grounds, and one which may be undertaken expeditiously, given the requirement that the Registrar furnish reasons as soon as possible." (par 34) 44 It is important to bear in mind in the review process the main objects of the Act set out in s 3 which are unchanged by the amendments and particularly the object relating to the protection of native title. It is also necessary to bear in mind the administrative character of the registration test and the time constraints under which it is to be applied. A significant margin of appreciation must be allowed for the experience and detailed administrative knowledge of the Registrar and his delegates in making the largely evaluative judgments on whether applications comply with the statutory conditions of registration. Their reasons are not to be scrutinised finally and minutely with an eye keenly attuned to error - Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. 45 When it comes to entertaining the State's contentions adverse to registration, it should be accepted that, given the desirability of dealing expeditiously with registration questions, it is appropriate to consider in these proceedings whether there is some other basis, as suggested by the State, upon which registration of the claim in the combined Maduwongga applications should have been refused. If some such basis is identified then it may be appropriate to decline the relief sought by the applicants. I am not suggesting that such a course should be followed in all cases and it may be necessary in future to embody some provision in the Rules for a notice of contention to ensure full and adequate notice of the contentions of any party seeking to support the decision under review on grounds other than that upon which it was made. 46 Counsel for the applicants accepted that ultimately the Court has to make a discretionary decision on the question of relief and decide whether or not it would be futile to remit to the Registrar in light of any other error that might have been exposed upon the State's submissions.

Identification of the Area Subject to the Native Title Determination Application 47 In the combined Maduwongga application the external boundaries of the claim were set out on a map attached to the application. The internal boundaries were defined as follows: "(1) The applicants exclude from the claim any areas covered by valid acts on or before 23 December 1996 comprising such of the following as are included as extinguishing acts within the Native Title Act 1993, as amended, or Titles Validation Act 1994, as amended, at the time of the Registrar's consideration: . Category A past acts, as defined in NTA s 228 and s 229; . Category A intermediate period acts as defined in NTA s 232A and s 232. (2) The applicants exclude from the claim any areas in relation to which a previous exclusive possession act, as defined in s 23B of the NTA, was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia and a law of that State has made provision as mentioned in s 23E in relation to the act. (3) The Applicants exclude from the claim areas in relation to which native title rights and interests have otherwise been extinguished, including areas subject to:- (a) an act authorised by legislation which demonstrates the exercise of permanent adverse dominion in relation to native title; or (b) actual use made by the holder of the tenure other than native title which is permanently inconsistent with the continued existence of native title. To avoid any uncertainty, the Applicants exclude from the claim areas the tenures set out in Schedule B1. 48 Schedule B1: B1.1 An unqualified grant of an estate in fee simple. B1.2 A Lease which is currently in force, in respect of an area not exceeding 5,000 square metres; upon which a dwelling house, residence, building or work is constructed; and which comprises- (1) a Lease of a Worker's Dwelling under the Workers' Home Act 1911-1928; (2) a 999 Year Lease under the Land Act 1898; (3) a Lease of a Town Lot or Suburban Lot pursuant to the Land Act 1933 (WA), s 117; or (4) a Special Lease under s 117 of the Land Act 1933 (WA) B1.3 A Conditional Purchase Lease currently in force in the Agricultural Areas of the South West Division under clauses 46 and 47 of the Land Regulations 1887 which includes a condition that the lessee reside on the area of the lease and upon which a residence has been constructed. B1.4 A Conditional Purchase Lease of cultivable land currently in force under Part V, Division (1) of the Land Act 1933 (WA) in respect of which habitual residence by the lessee is a statutory condition in accordance with the Division and upon which a residence has been constructed. B1.5 A Perpetual Lease currently in force under the War Service Land Settlement Schedule Act 1954. B1.6 A Permanent public work. B1.7 An existing public road or street used by the public. (4) Paragraphs (1) to (3) above are subject to such of the provisions of sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which will be provided prior to the hearing but which include such areas as may be listed in Schedule L. (5) The claim is a combination of the claims in WAG 76 of 1997 (WC 95/11), WAG 63 of 1998 (WC 94/3) and WC98/20." 49 The State submits that in order for it to be said "with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters" as required by s 190B(2), the land or waters included in or excluded from the claim area should be described in such a way that legal judgment is not needed to determine whether an area is included or excluded. 50 The State objected generally to the description of excluded areas by category rather than by description of the land excluded itself or its depiction on a map. So the exclusion of land covered by Category A past acts, as defined in ss 228 and 229, was said to be inadequate because it potentially covered a broad range of matters. But in order to establish the existence of a Category A past act it is necessary first to show that there was at some time in the area affected by the act, native title cognisable by the common law, that the act which was invalid because of its effect on that native title and that it has been validated with the statutory consequence that native title has been extinguished in respect of it. The questions raised by that category of exclusion could not be resolved without substantial inquiry. The exclusion of areas covered by Category A past acts is, in the circumstances, an entirely reasonable concession. That concession is not to be attacked by suggesting that it leads to ill-defined internal boundaries. In my opinion the mode of description adopted in this case is consistent with the general rubric of "reasonable certainty" used in s 190B(2). The same reasoning applies to exclusions from the claimed area by reference to previous exclusive possession acts as defined in s 23B and by reference to acts authorised by legislation demonstrating the existence of permanent adverse dominion in relation to native title and by reference to actual use made by the holder of a tenure other than native title which is permanently inconsistent with the continued existence of native title. These are all appropriate concessions which render the application more rather than less certain. 51 In Daniels v State of Western Australia & Others [1999] FCA 686, Nicholson J referred to the requirements of s 62 relating to information identifying the area covered by the application and areas within its boundaries not covered by the application. His Honour said: "These requirements are to be applied to the state of knowledge of an applicant as it could be expected to be at the time the application or amendment to an application is made. Consequently a class or formula approach could satisfy the requirements of the paragraphs where it was the appropriate specification of detail in those circumstances. For example, at the time of an initial application when the applicants had no tenure information it may be a satisfactory compliance with the statutory requirement. A description of a class or formula character of an area of exclusion such as "areas affected by valid category A Past Acts" may be the fullest description that an applicant can give at the time of an application or application for amendment of an application. It is capable in the light of a subsequent determination of the nature and validity of those Acts of resulting in satisfaction of the legislatively prescribed criteria in s 62(2)(a). Whether that would be so on a later application for amendment when tenure information is available would depend on considerations such as those referred to in the following paragraphs." His Honour went on generally, albeit in the context of a motion for amendment of an application, to hold that whether a class or formula description satisfies the Act requires consideration by the Court in the light of evidence of consideration given to the relevant issues by the applicants and how feasible it was that greater certainty and detail could be provided consistently with the other requirements of the Act. 52 I respectfully agree with his Honour's approach. However, in the context of the registration test, the kind of judgment which his Honour was contemplating might be undertaken by the Court is undertaken administratively by the Registrar. It is necessarily evaluative in character within the general parameters laid down by the statutory provisions which the Registrar must apply. Having regard to the nature of review proceedings the Court should not interfere with the Registrar's assessment of the sufficiency of the description unless it is shown to be informed by some error of law or procedure. 53 The State argued that the identification of leases "currently in force" referred to in Schedule B1 would require interpretation as to whether the date impliedly referred to is the date of lodgment of the application or the date on which the matter comes on for hearing. As to that there is little room for doubt in my opinion, that the claim excludes areas covered by leases of the relevant category in force at the time the application is lodged, or if the exclusion is introduced by the amendment, the time at which the amendment is made. The question was also raised whether Item B1.1 excludes all freehold or only private freehold. On the face of it the exclusion applies to land covered by any grant of an estate in fee simple. An amendment of the application to limit the exclusion to private freehold would arguably constitute an expansion of the land area covered by it, which is not permissible under s 64. 54 Then it was said the operation of ss 47, 47A and 47B of the Native Title Act in their applicability to any given claim is a matter peculiarly within the knowledge of the applicants and should be set out with particularity in the application itself so that it is known whether exclusions do or do not apply to given areas. These sections of the Native Title Act provide for the disregard of prior extinguishment in relation to land covered by pastoral leases held by native title applicants, freehold land vested under legislation for the benefit of Aboriginal and Torres Strait Islander people and occupied by members of the native title claim group and vacant crown land occupied by members of the native title claim group. 55 In my opinion, it is unrealistic to expect a concluded definition of the areas subject to these provisions to be given in the application. Their applicability to any area will require findings of fact and law to be made as part of the hearing of the application. The Act is to be construed in a way that renders it workable in the advancement of its main objects as set out in s 3, which include providing for the recognition and protection of native title. The requirements of the registration test are stringent. It is not necessary to elevate them to the impossible. As to their practical application to a particular case, subject to the constraints imposed by the law, that is a matter for the Registrar and his delegates and not for the Court.

Authorisation of Applicants 56 The combined Maduwongga application includes a statement in par A2 as follows: "The applicants are entitled to make this application as people authorised by the native title claim group to make the native title determination application." The affidavit of the applicants, which accompanies the application, includes statements by them: "(d) that they are authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and (e) they are so authorised by their descendants in accordance with a traditional custom acknowledged by the members of the native title claim group of younger generations respecting elder generations and elder generations having authority to make decisions and deal with matters relating to traditional interests in land and waters on their own behalf and on behalf of younger generations." The State submits that the Registrar cannot be satisfied that the requirements of s 190C(4)(b), read with s 251B, have been met as no grounds have been set out by which a process of decision making is identified. It is said that s 251B of the Act envisages that there is a "process of decision-making" which has been gone through in order to authorise the making of the claim on behalf of the claimant group. That process, it is submitted, can be either in accordance with traditional law and customs or, in the absence of such a process, agreed to by the group. What is not envisaged by s 251B, it is argued, is that authorisation is a process involving no consultation with the claim group. Hence there was no "authorisation" in accordance with the Native Title Act. 57 The affidavit attached to the application meets the requirements of s 190C(5)(a) which requires no more than a statement that the requirement of authorisation referred to in s 190C(4)(b) has been met. It is also required briefly to set out the grounds on which the Registrar should consider that it has been met. The insertion of the word "briefly" at the beginning of par 190C(5)(b) suggests that the legislature was not concerned to require any detailed explanation of the process by which authorisation is obtained. The sufficiency of the grounds upon which the Registrar should consider that the requirement has been met is primarily a matter for the Registrar. The specified grounds in this case constitute an assertion that as elders the two applicants have authority under traditional law and custom acknowledged by the members of the native title claim group to make decisions of this kind. The brevity of the assertion may be criticised and it might be thought consistent with the two applicants merely arrogating authority to themselves without any or any meaningful consultation with the members of the native title claim group. On the other hand, neither the Registrar nor this Court is in a position to reject the contention that all relevant authority is vested in the elders of the relevant native title claim group and that the applicants fall into that category. It is to be noted that s 190C(4) does not confine the Registrar to the statements made in the affidavit or the information provided in the application in reaching the relevant state of satisfaction. Nor is the Registrar so confined by subs 190C(5). In this case, the delegate, in his reasons for decision, said in connection with this ground: "Paragraph (e) of the affidavit provides a brief statement as to the basis for authorisation by the biological descendants of the applicants. These persons represent the totality of the native title claim group in the current application. The two applicants, Marjorie Strickland and Joyce Nudding are the oldest living descendants to be identified apical ancestors within the native title claim group (refer to the genealogy at Fig 3.4 of the report by McDonald Hales & Associates). The applicants have based their authorisation on the respect shown to elder generations under traditional custom to use their authority to make decisions on behalf of the group." In my opinion, the Registrar's delegate has reached a state of satisfaction on material available to him and it is not shown that he has been informed by any error in principle in so doing. Nor is it demonstrated that the formal requirements of subs 190C(5) have not been met. Nevertheless, this is a matter of considerable importance and fundamental to the legitimacy of native title determination applications. The authorisation requirement acknowledges the communal character of traditional law and custom which grounds native title. It is not a condition to be met by formulaic statements in or in support of applications. Nevertheless, I am satisfied that the requirements of the Act have been met in this case and that the Registrar has reached the state of satisfaction not only by reference to the assertions contained in the affidavit but also by reference to other anthropological material supplied to him.

Adequacy of the Description of the Native Title Rights and Interests Claimed 58 The native title rights and interests claimed in the combined Maduwongga application are set out in Schedule E of that application in the following terms: "The native title rights and interests claimed are the rights to the possession, occupation, use and enjoyment as against the whole world (subject to any native title rights and interests which may be shared with any others who establish that they are native title holders) of the area, and any right or interest included within the same; subject to: (i) To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants. (ii) The applicants do not make a claim to native title rights and interests which confer possession, occupation use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in section 23F of the NTA, was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia and a law of that State has made provision as mentioned in section 23I in relation to the act; (iii) Paragraph (ii) above is subject to such of the provisions of sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which will be provided prior to the hearing." The State contends that this description is no more than a statement by the applicants that they claim "the native title rights and interests that may exist, or that have not been extinguished, at law". It is submitted that s 62(2)(d) envisages a setting out of particular rights and interests in relation to particular land or waters, with a description of activities undertaken in exercise of those rights and interests so that they can be "readily identified" and presumably, help with resolution of issues raised with respect to, for instance, the issue of s 29 notices. The applicants, it is said, have provided a statement, not a description and the Registrar cannot be satisfied as required by s 190B(4). 59 The term "native title rights and interests" is defined in s 223 thus: "223(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia." 60 The common law of native title and the Act which provides for its recognition and protection cannot be applied to distort traditional law and custom or the rights and interests which arise under such law and custom into convenient laundry lists of common law analogues. While the description of the native title rights and interests set out in this application may be seen as inconveniently broad, they are quite consistent with the assertion that the land in question is the traditional "country" of the applicants and the native title claim group which they represent. No doubt if the content of the native title rights and interests varied from one part of the land or waters covered by the application to another, then that variation would have to be particularised to comply with the requirements of s 62(2)(d). However such variation is not to be assumed. It cannot be said that a broad description fails to comply with the requirements of s 62(2)(d) of the Act. Reference to the terms of the determination of the High Court in Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 shows that in an appropriate case native title rights and interests may be so broadly asserted and determined and the mere fact that there is a broad description proffered in the application does not mean that the rights broadly described cannot readily be identified within the meaning of s 190B(4). In Mabo the definition of the native title rights and interests declared by the court subject to certain exclusions was in the following terms: "…the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands." Again, the sufficiency of the native title rights and interests is a matter of which the Registrar must be satisfied. There is scope for evaluative judgment in an expeditious administrative process carried out by people with relevant specialist experience. It is not for the Court, in reviewing the Registrar's decision, to substitute its own view of the sufficiency of the native title rights and interests for those of the Registrar unless it can be shown that the Registrar's state of satisfaction is based upon some error of principle. 61 In my opinion this objection taken by the State, does not succeed.

Factual Basis for Claimed Native Title 62 The State submits that in their application the applicants do no more than repeat the assertions set out in ss 62(2)(e) and 190B(5) of the Native Title Act rather than providing facts to support them. It is said the Registrar cannot therefore be satisfied that there is any factual basis provided to support the assertions made. The Registrar's delegate in addressing this condition went beyond the statements set out in the application and referred to an accompanying anthropological report which had been adopted in an affidavit of the applicants as prepared at their instructions and with their assistance. This report was relied upon to provide the factual basis for the assertions. Section 190B(5) does not limit the Registrar to consideration of the application in deciding whether the relevant state of satisfaction was reached and in my opinion unless it can be shown that he has erred somehow in principle in approaching the application of this condition, no basis has been disclosed for impugning the decision on grounds of non-compliance with the condition in s 190B(5).

Conclusion 63 For the reasons which I have set out, the refusal to register the claims in the combined Maduwongga application was based upon an erroneous construction of s 190C(3) of the Act. Notwithstanding the State's contentions, there are no other grounds upon which refusal of registration could be maintained. In the circumstances I propose to order that the Registrar accept the claim made in the combined Maduwongga application for registration pursuant to s 190A(6) and include in the Register of Native Title Claims details of the claim. Having regard to the basis upon which I have reached my conclusion I will allow the parties seven days to file written submissions as to any order as to costs. I will also allow liberty to apply in relation to any ancillary directions particularly directions having regard to the time from which the inclusion of the claim in the Register should be taken to have effect. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Counsel for the Applicants: Mr G.M.G. McIntyre

Solicitor for the Applicants: Corser & Corser

Counsel for the First Respondent: No appearance

Counsel for the Second Respondent: Ms C.J. Thatcher Solicitor for the Second Respondent:

Date of Hearing: 4 October 1999

Date of Judgment: 4 November 1999

Native Title Amendment Act 1998(Cth)

Administrative Decisions (Judicial Review) Act 1975(Cth)

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Judgment (24 paragraphs)

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Cases Cited (7)