Wakaman People # 2 v Native Title Registrar and Authorised Delegate

REASONS FOR JUDGMENT 1 On 5 September 2006 I ordered that the decision of the delegate of the Native Title Registrar, refusing registration of the claim the subject of these proceedings, be set aside and that the Registrar include particulars of the claim in the Register of Native Title claims. I observed that the applicant had sought an order back-dated to the time when the claim should have been registered, because notification was subsequently given of future acts and the ability to negotiate with those concerned in these acts had been lost. It was not apparent whether the applicant still sought that order, since there had been no substantial argument upon it. When giving judgment I adjourned over the question as to the terms of the order and the applicant took the opportunity of considering its position. On 8 September 2006 it made submissions in support of the making of such an order. I declined to do so and said that I would provide short written reasons. These are those reasons. 2 The Native Title Act 1993 (Cth) ('the NTA') does not contain an express authorisation to make an order that the Registrar enter details of the claim to take effect from an earlier date where the court reviews the Registrar's (or the delegate's) decision not to accept a claim for registration under s 190D. The applicant submits that the court has the power to make such an order, by analogy with s 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). 3 When the matter came on for the hearing of further argument, it was apparent that parties who may be affected by such an order had not been notified. I refer in particular to those parties to whom exploration permits had issued and who may have been parties to whom the right to negotiate provisions (Subdivision P, Division 3, Part 2 NTA) applied had the claim been registered by the delegate. I did not adjourn the matter to enable those parties to be notified because that course would be unnecessary if I were to take the view that the NTA did not authorise the making of an order having retrospective effect. In that event there would be no question of a discretion to be exercised, which might have regard to the particular circumstances of the parties. My preliminary view, which I expressed to the parties, was that the NTA neither expressly nor impliedly authorises such an order. I maintain that view. 4 In Strickland v Native Title Registrar [2000] FCA 10 French J expressed the view, in unqualified terms, that s 190D did not authorise an order having retrospect of effect. His Honour said: '[9] The orders made did not specify the date from which the claim is to be taken as having been accepted. The application for an order of review of the Native Title Registrar's decision did not expressly set out the particular head of jurisdiction which it invoked, although it appeared to rely both on the statutory review process under s.190D of the Act and also the Administrative Decisions (Judicial Review) Act and s.39B of the Judiciary Act 1903 (Cth). For all practical purposes, however, it proceeded as an application for review under s.190D. … [11] In my opinion, s.190B of the Act does not authorise the Court to direct the Registrar to make an entry in the Native Title Register which is, in effect, backdated to 8 June 1999. It is questionable whether such an order could be made under the Administrative Decisions (Judicial Review) Act or otherwise. But that is a question which need not be resolved for present purposes.' (The reference in [11] to 's.190B' appears to be an error and that reference to 's 190D' was intended). 5 The Full Court in Western Australia v Strickland and Others ('Strickland') (1999) FCR 33 at [66] discussed the nature of the review undertaken by the Court under s 190D. I have referred to this in my earlier reasons. The Court concluded (at [66]) that: '…upon a ground of review being established, appropriate orders may be made to do justice between the parties. Such orders are made in the Courts discretion in the exercise of the original jurisdiction of the Court …' 6 Section 16(1)(d) of the ADJR Act provides that the court may make an order directing any of the parties to do, or refrain from doing an act 'which the Court considers necessary to do justice between the parties.' 7 The statement by the Full Court in Stricklandcannot be taken to approve an order of the kind here sought, even if there is reference to the court exercising its discretion. The matter does not appear to have been raised and French J's observations were not the subject of comment by the Court. Whilst the language used by the Full Court mirrors those in s.16(1)(d) of ADJR Act, it has not been universally accepted that that section permits an order operating retrospectively. It was not considered by Spender J to permit an order which treated the registration of a company as if it were to take effect at an earlier date. The provision was considered by his Honour to relate to prospective orders: see TJM Products Pty Ltd v Industry Research and Development Board (1998) 83 FCR 379 at 386 - 387. In any event the question here is one of construction of the NTA, having regard to its purposes and intended operation. 8 The order sought would require the particulars of the claim to be given a date other than that of the date it was entered in the Register. The Register is a public document, to be available for inspection (s 187(1)). The provisions of the NTA concerning its maintenance suggest that it is intended to reflect the current state of affairs with respect to claims. Section 186(1)(ca) requires the date upon which the claim is entered on the Register to be included in it. The Registrar is required 'as soon as practicable' to include in the Register details of any claim accepted for registration under s 190A (s 190(1)(a)) and must likewise amend the Register where there is an amended application which complies with the Act's requirements and remove any entry relating to the claim where it does not: s 190(2) and (3). The Registrar must also take prompt action to remove entries where a claim has been withdrawn, dismissed or finalised: s 190(4). The need for the Register to reflect the current state of claims is confirmed by the Explanatory Memorandum to the Native Title Amendment Act 1998 (in connexion with s 190(2)). It is the requirements of s 190(1)(a) which are reflected in the Court's order where a decision of the Registrar, not to accept a claim for registration, is set aside. None of these provisions suggest that some date, other than the day upon which the Registrar actually entered the details, is appropriate. 9 Registration of a native title claim confers a right to negotiate an outcome with the parties to an intended act. Notice must be given to a registered native title claimant of a future act (s 29). One purpose of registration is the identification of that claimant. Public notice of the future act is also required. The effect of s 28(1)(a) for present purposes, is that if there is no native title claimant registered at the end of a period of four months following notification an act will not be invalid. If a claim group is unable to register its claim within that period it may lose the right to negotiate with the parties to the future act, which s 25 mandates. The importance of timely registration is recognised by the provisions previously discussed. Section 190A(2) specifically responds to the potential for the loss arising from a delay in registration, by requiring the Registrar to use his or her best endeavours to conclude consideration of the claim in the four month period. It may therefore be inferred that the legislature was well aware of the problems which may arise for claimants if registration is delayed. There is no suggestion in the Act however that the potential for loss is to be remedied. It is only to be ameliorated by minimising the delay, where possible. It cannot be inferred from its recognition of the problem, and its limited response to it, that more was intended by the legislation and that the court was to provide a remedy. 10 In the course of argument reference was made to the potential for an order deeming registration to have been effected with the four-month period to invalidate an act which was carried out in the absence of a registered claim. It was suggested that the exploration permits might be invalidated because the requirements of s 25, to negotiate, had not been fulfilled. It is most unlikely that such an outcome was intended. Indeed the order sought cannot have the operation and effect that the applicant seeks. What is sought to be achieved by it is a right to negotiate. How that is to be achieved by the order was not explained. It does not seem possible where the future act has been done and the requirements of the Act, in the circumstances then pertaining, complied with. There can be no suggestion of declaring invalid any permit obtained by those means. The requirement in s 25(2) is that negotiation be undertaken before the future act is done. There must necessarily be a registered claimant at that time for the provision to be operative. An order claiming registration to have occurred at an earlier date would therefore appear to be nugatory. 11 For these reasons I declined to make the orders sought. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.