Bell v Native Title Registrar

Case [2021] FCA 229

FEDERAL COURT OF AUSTRALIA

Bell v Native Title Registrar [2021] FCA 229

File number(s): QUD 318 of 2020
Judgment of: GRIFFITHS J
Date of judgment: 16 March 2021
Catchwords:

NATIVE TITLE – decision of delegate of Native Title Registrar to accept further amended claimant application for registration under s 190A of the Native Title Act 1993 (Cth) – application for judicial review of that decision under Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) 

ADMINISTRATIVE LAW – procedural fairness requirements – standing and procedural fairness – concept of “legitimate expectation” – applicants not afforded opportunity to be heard – notice not required under NT Act – applicants aware decision to be made by delegate – no procedural unfairness – no practical injustice suffered

ADMINISTRATIVE LAW – standing – standing and constitutional concept of “matter” – standing necessary to enliven Court’s jurisdiction – meaning of “person aggrieved” under s 5(1) of the ADJR Act – standing where applicants competing native title claimants – Hazelbane v Doepel [2008] FCA 290; 167 FCR 325 distinguished – applicants “persons aggrieved” by delegate’s decision

ADMINISTRATIVE LAW – improper exercise of power – whether delegate identified wrong issue under s 190B of the NT Act – nature of function under s 190B(5) – whether delegate failed to take into account a relevant consideration – no reviewable error
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3(4), 5(1)-(2), 11(3)

Judiciary Act 1903 (Cth), s 39B

Native Title Act 1993 (Cth), ss 29, 61, 63-64, 66, 66B, 67, 190A-C, 251B(a)

Native Title Amendment Act 1998 (Cth)

Federal Court Rules 2011 (Cth), r 8.21

Administrative Decisions (Judicial Review) Act 1989 (ACT)
Cases cited:

Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairs [2004] HCA 62; 221 CLR 1

Argos Pty Ltd v Corbell [2014] HCA 50; 254 CLR 394

Australian Foreman Stevedores Association v Crone [1989] FCA 14; 20 FCR 377

Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; 13 FCR 124

Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; 194 CLR 247

Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537

Griffith University v Tang [2005] HCA 7; 221 CLR 99

Gudjala People #2 v Native Title Registrar [2007] FCA 1167

Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157; 171 FCR 317

Gudjala People #2 v Native Title Registrar [2009] FCA 1572; 182 FCR 63

Hazelbane v Doepel [2008] FCA 290; 167 FCR 325

Kioa v West [1985] HCA 81; 159 CLR 550

Martin v Native Title Registrar [2001] FCA 16

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326

Mirvac Homes (NSW) Pty Ltd v Airservices Australia (No 1) [2004] FCA 109

Northern Territory…

Continue reading Bell v Native Title Registrar

Sign in free to access the full text

Details
AGLC
Bell v Native Title Registrar [2021] FCA 229
Case
[2021] FCA 229
Decision Date

CaseChat Overview and Summary

In Bell v Native Title Registrar, the applicants sought judicial review of the decision by the delegate of the Native Title Registrar to accept a further amended claimant application for registration of native title under section 190A of the Native Title Act 1993 (Cth). The applicants, competing native title claimants, argued that they were aggrieved by the delegate’s decision and that the decision-making process failed to observe procedural fairness.

The court examined whether the applicants had standing to bring the judicial review proceedings. The applicants contended that they were "persons aggrieved" by the decision, as their interests were adversely affected by the decision to accept the amended application. The court noted that the concept of "person aggrieved" is not to be given a narrow construction and that any person whose interests are adversely affected by a decision may be a person aggrieved. The court distinguished Hazelbane v Doepel and found that the applicants were indeed "persons aggrieved" by the delegate’s decision.

The court also considered whether the delegate identified the wrong issue under section 190B of the Native Title Act and whether the delegate failed to take into account relevant considerations. The court found that the delegate correctly identified the issue and that there was no reviewable error in the decision.

The court concluded that the applicants did not have standing to bring the judicial review proceedings as they were not "persons aggrieved" by the decision. The applicants were competing native title claimants who were aware that the decision would be made by the delegate and were given an opportunity to be heard. The court found that there was no procedural unfairness or practical injustice suffered by the applicants.

The court dismissed the originating application and ordered that the applicants pay the respondents' costs.

Orders

Orders of the court

1. Time be extended for the applicants to rely on the originating application.

2. The originating application be dismissed.

3. The applicants pay the respondents’ costs, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In Mirvac Homes (NSW) Pty Ltd v Airservices Australia (No 1) [2004] FCA 109, Branson J considered Truth About Motorways in the context of a notice of objection to competency made in judicial review proceedings instigated under both the ADJR Act and s 39B of the Judiciary Act 1903 (Cth). The notice of objection to competency focussed on the applicant’s standing. Justice Branson highlighted at [23] and [26] how the concept of “person aggrieved” related to the requirement that there be a matter so as to attract federal jurisdiction (emphasis added):[23]Truth About Motorways makes clear, in my view, that the critical issue so far as the Court’s jurisdiction to hear and determine the Application is concerned is whether it seeks the determination of a ‘matter’ in the constitutional sense.…[26]Ground 3, which concentrates on the question of standing, is the ground which most nearly raises the critical issue of whether the Application seeks the determination of a ‘matter’ in the relevant sense. However, no doubt because of the way in which ground 3 is worded, the parties did not address submissions to the Court on that issue. If the applicants are ‘persons aggrieved’ by an administrative decision made by the respondent ‘under an enactment’ within the meaning of the ADJR Act, the proceedings will necessarily involve a ‘matter’ in the relevant sense. However, even if the jurisdiction of the Court under the ADJR Act has not been properly invoked, the Court will have jurisdiction to hear and determine the Application if the applicants have properly invoked a jurisdiction vested in the Court by s 39B(1A) of the Judiciary Act.Are the applicants “persons aggrieved” by the delegate’s decision? Under s 5 of the ADJR Act, a person who is “aggrieved by a decision to which this Act applies” may apply for an order of review in respect of judicial review grounds which are set out in s 5. Section 3(4) contains the following definition of the expression “person aggrieved by a decision”:3 Interpretation…(4) In this Act:(a)a reference to a person aggrieved by a decision includes a reference:(i)to a person whose interests are adversely affected by the decision; or(ii)in the case of a decision by way of the making of a report or recommendation—to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and(b)a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.… It is well settled that the expression “a person who is aggrieved” is not to be given a narrow construction (see Western Australia v Native Title Registrar [1999] FCA 1591; 95 FCR 93 at [12] per Carr J and similar observations by the High Court in Argos at [42] per French CJ and Keane J with reference to the comparable provision on standing in the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ACT ADJR Act)). That is not to say, however, that any person who is minded to challenge an administrative decision is a person who is aggrieved by that decision. For example, in Australian Foreman Stevedores Association v Crone [1989] FCA 14; 20 FCR 377, Pincus J said at 382:A decision favourable to one citizen may affect many others: some directly, and some more remotely. There is a point, which must be fixed as a matter of judgment in each case, beyond which the court must hold that the interests of those affected are too indirectly affected to be recognised. A case such as this, where a decision has been made which is said to be favourable to one of a group of business competitors, is an example; the decision may, by assisting one, relatively disadvantage the others and also affect the prospects of those who are in one way or another dependent on the others – as employees, shareholders, or even personal dependants.

Ratio Decidendi

Legal Principle Established

Sections 190B and 190C are relevantly as follows:190B Registration: conditions about merits of the claim(1)This section contains the conditions mentioned in subparagraph 190A(6)(b)(i).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.…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.Note:If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a “right to negotiate” process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a “right to negotiate” process). …190C Registration: conditions about procedural and other matters(1)This section contains the conditions mentioned in subparagraph 190A(6)(b)(ii).Information etc. required by sections 61 and 62(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.No previous overlapping claim groups(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.Identity of claimed native title holders(4) The Registrar must be satisfied that either of the following is the case:(a)the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; orNote:An application can be certified under section 203BE, or may have been certified under the former paragraph 202(4)(d). A representative Aboriginal/Torres Strait Islander body may certify the application, even if it is only the representative body for part of the area claimed.(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.Note:The word authorise is defined in section 251B.…