Wakaman People # 2 v Native Title Registrar and Authorised Delegate

The application for review 26 The grounds given for review of the delegate's decision included one that the applicant was misled by the delegate's decision. It suggested something in the nature of an estoppel and was not pressed on the hearing of the application. It was also sought to identify errors in each of the delegate's decisions. It is not necessary to undertake such an assessment, since the application before the Court is limited to review of the third decision and the reasoning leading to it. Nevertheless the delegate has incorporated part of his earlier reasons in the third decision and it may therefore be necessary to have regard to them. 27 The primary submission for the applicant at the hearing was that the delegate had neither the duty nor the power to go behind the certification provided with respect to the third application. The intervenor submits that the delegate's duties under s 190C(4) required him to be satisfied that the application had been certified under s 203BE. That necessarily refers to the third application. If he was not able to conclude that the certification in question applied to that application, he could not be so satisfied. 28 The applicant also submitted that the delegate was in error in finding that the native title claim group described in the third application was a wider, and significantly different, group from that referred to in the previous application, which had been subject of certification. The intervenor submitted that the conclusion that there had been a significant change was obviously correct because the words 'and who identify as Wakaman People' in the second application referred, at least potentially, to a smaller group. In that regard it was submitted that a person might be a biological descendant of a named ancestor, but not identify themselves as a member of the group claiming native title, but some other group to whom they are also related. The third application may refer to a larger group because it has all biological descendants as part of the group regardless as to whether they consider themselves to be a member of it. 29 Whilst the applicant's case for review is based upon the identification of an error on the part of the delegate, it is not submitted that the Court is limited to a review based upon questions of law. The intervenor does not argue against that contention, given the decision of the Full Court in Western Australia v Strickland (2000) 99 FCR 33. I had previously expressed a view different to that in Strickland (in Powder v Registrar, National Native Title Tribunal (1999) 92 FCR 454) but consider that I am now bound by the decision of the Full Court. In Strickland the Full Court held that the power given by s 190A to the Registrar by the NTA to make decisions in respect of the registration of an application made to the Court is the exercise of an administrative power in respect of a matter in which the Court is exercising jurisdiction (at [63]). The legislation does not specify the nature or the extent of the Court's review under s 190D(3) or impose any limitation upon the material that may be taken into account. Jurisdiction is conferred by s 190D(2) and (3) in the broadest of terms (at [64]). A review under s 190D is not restricted to considerations and determination of a question of law. Section 190D(4) makes it plain that the review extends to determinations of issues of fact. The NTA does not proceed upon the premise that determinations of fact in the relevant controversy have been settled by the administrative determination and that the only matter in respect of which jurisdiction is conferred upon the Court is any controversy on questions of law. The Honours said that 'the review proceeding enlivens the jurisdiction of the Court in respect of the whole matter' (at [65], referring to TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1998) 82 ALR 175 at 178, 180 - 181). Their Honours concluded that it was Parliament's intention that the right of review would place before the Court the controversy constituted by the issues of fact and law raised between the parties and that, upon a ground of review being established, appropriate orders may be made to do justice as between parties (at [66]). 30 In each of the applications no attempt had been made to name all of the persons who comprised the native title claim group. It was therefore necessary that the Registrar or his delegate be satisfied, pursuant to s 190B(3)(b), that the persons who comprised the claim group were described sufficiently clearly so that it could be ascertained whether any particular person was a member of that group. It may be seen from the delegate's reasons on the third application that he did not consider that the description of the claim group failed to meet this requirement. Clearly it was satisfied by a description of the group as being all of the descendants of named ancestors. I put to one side whether there is any real difference between this description and that in the first application. And the inconsistency found by the delegate between the description in the third application and the one which had preceded it was not applied to the satisfaction of this statutory condition. The delegate refused to register only because he was not satisfied as to the requirements of s 190C(4). The delegate reasoned that the certification earlier provided could not relate to the application brought on behalf of a wider, and therefore different, group. I propose to deal with the function and effect of certification and the Registrar's or delegate's role in connection with it, before turning to the issue concerning the description of the group in each of the two applications. 31 In Northern Territory of Australia v Doepel and Others [2003] 133 FCR 112 ('Doepel') Mansfield J discussed the Registrar's general functions under s 190A to 190C of the NTA, those sections being part of the extensive amendments introduced by the Native Title Amendment Act 1998 (Cth). As his Honour observed (at [12]), they separate the judicial decision-making processes under the Act from the administrative processes relating to registration. The Tribunals task, his Honour considered, was not one of finding the real facts in every respect on the balance of probabilities or some other basis. Its role was not to supplant the role of the Court in adjudicating upon the application for determination of native title or generally to undertake a preliminary hearing of the application. Section 190C is largely directed to the terms of the application, as does s 190B(3) (at [16]). Section 190C(2) did not involve the Registrar going beyond the application nor require the undertaking of some form of merit assessment. So far as concerned the description of the native title group, its focus was not upon its correctness but upon the adequacy of the description, so that the members of it could be ascertained (at [36] and [37]). 32 His Honour considered that s 190C(4) contained conditions of a different nature and that the contrast between the requirements of paragraphs (a) and (b) of subs (4) is dramatic (at [78]). In the case of subs (4)(a), the Registrar is to be satisfied about the fact of certification by an appropriate representative body. His Honour later observed that, in determining whether the certificate was in accordance with s 203BE, the Registrar is required to address the terms of the certificate. The Registrar was not required to go beyond that point to be satisfied that the requirements of subs (4)(a) was met (at [80]). The contrast between paragraphs (a) and (b) of subs (4) indicate that responsibility in the former rests with the representative body which is required to address the requirements of s 251B; and in the case of paragraph (b) the responsibility lies with the Registrar. It was to be noted, his Honour observed, that s 203B(2) emphatically states that the representative body 'must not' provide its certificate unless it is of the opinion that all persons in the claim group have authorised the applicant to make the application. In his Honour's view it followed that s 190C(4)(a) does not leave some residual obligation upon the Registrar, once satisfied of the matters to which it expressly refers, to revisit the certification of the representative body (at [81]). I respectfully agree. 33 The intervenor submits that the delegate did not consider the correctness of the matters certified, but was concerned to ensure that the application before him, the third application, had been certified, as s 190C(4)(a) required. I do not understand the submission to be directed to the act of certification by the NQLC. It is implicit in the submission that it is part of the delegate's function under the NTA to consider whether the certification is of the particular application under consideration. So much may be accepted, but it is not obvious that the delegate viewed the matter in this way. Before turning to what the delegate's findings about the claim group were directed to, in the context of certification, it is necessary to clarify one matter which arises from the terms of the certification dated 1 December 2005. The certificate, it will be recalled, had been prepared for the purpose of the second application. It was expressed to relate to the proceedings upon that application and bore no reference to the later, third, application. It was not suggested by the delegate, or the intervenor in submissions, that the certificate could not apply to the third application for this reason alone. Such an approach would be unduly technical and not appropriate to procedures under the NTA. The matter should be approached by applying the certification to the third application, as the applicant and the NQLC, which was a participant, clearly intended. Putting aside the change in the way in which the claim group was described, there is no dispute that the content of the third application was the same as that preceding it. It referred to the same lands and the process utilised for authorisation was the same, as were the persons participating in it. The NQLC must then be taken to say, amongst other things, that the members of the native title group referred to in the application had authorised those persons to be the applicant and to bring the application in the way required by the NTA. The delegate's response to this, it may be inferred, was that this could not be correct because the group now involved was different. This opinion has relevance only to the question of authorisation. That the delegate viewed the matter in this way is confirmed by his concluding observation that re-certification or re-authorisation was necessary. The delegate clearly did not consider the certificate, so far as it related to authorisation, to be conclusive or correct. 34 The NTA provisions relating to registration do not give the Registrar or a delegate the authority to consider these matters. So far as concerns the composition of a native title claim group, s 190B(3)(b) requires the Registrar (or delegate) to be satisfied as to the sufficiency of the description of the group for the purpose of facilitating the identification of any person as part of that group. Section 61(4) also requires information as to identification for the same purpose. By s 190C(2) the Registrar must ensure that this information is contained in the application, together with evidence about the authorisation. None of these provisions require or permit the Registrar to be satisfied about the correctness of these matters, as his Honour pointed out in Doepel. The Registrar's functions do extend to a consideration as to whether the authorisation of the person or persons to bring the application has been made as required by the NTA. This would include consideration of the process of authorisation used and whether 'all' the members of the claim group participated in it (although the NTA does not require that every member of the group be present or that all those present agree: Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [25] and Moran at[48]. A consideration of aspects of the authorisation process is not to be undertaken by a Registrar where the application in question has been certified in accordance with s 203BE. Certification means that the function has been carried out by the representative body and there is no basic function for the Registrar to carry out. 35 The conditions set by s 190B and s 190C were met by the third application and the test for registration under s 190A(6) satisfied. It follows, in my view, that the delegate was obliged by that provision to accept the claim for registration. It is not necessary to consider whether the delegate was correct in his assessment that the claim groups as described were different. I shall however state my views on that matter in short form. 36 The intervenor seeks to support the delegate's conclusion in that regard by a process of reasoning different from that expressed by the delegate. The delegate considered that the reference to 'cognatic' descent in the second application limited the number of persons said to be descended from the same apical ancestor. Nothing turns upon the latter description, the apical ancestor being the common ancestor at the apex of a genealogy. The delegate did not explain what it was about 'cognatic' descent which was limiting. There was no evidence from an anthropologist as to its meaning in kinship systems, but there seems little dispute in dictionary definitions of the term. The Oxford English Dictionary refers to cognatic descent as being from a common ancestor. Elsewhere it is explained that the descent may be through males or females and is not limited to one or the other sex. 37 The intervenor submitted that the claim group could be seen to be different and larger following the removal of the requirement, stated in connection with the second application, that a person identify as one of the Wakaman People before they could be said to be a member of the group. Without the requirement any biological descent would qualify. 38 It may be observed that identification with a group may be relevant to findings of fact about membership of the group, which may be made later in the proceedings. The registration process is concerned with the clarity of the description of persons making up a claim group, so that it may be determined whether a person is a member of it. A requirement of self-identification would not appear to meet such an objective and might be thought to provide grounds for refusal of registration. The intervenor's argument proceeds from a description of a group which is uncertain in its operation, hardly a strong basis for comparison. At a practical level it cannot be known whether descendants will or will not identify with the group. A conclusion that a group described as descendants, regardless of their opinion as to membership, will be larger is merely conjecture. 39 I will make an order setting aside the delegate's decision and propose to make further orders requiring the Registrar to accept the application for registration and including details of the claim in the Register of Native Title Claims. Before making the second order I will hear further submissions from the parties as to whether that order should be expressed to take effect at an earlier time than the present, if the applicant presses for such an order. A claim was made to one but there was no argument of substance on the point. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.