Bright v Northern Land Council

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FEDERAL COURT OF AUSTRALIA

Bright v Northern Land Council [2018] FCA 752

File number: NTD 33 of 2016
Judge: WHITE J
Date of judgment: 24 May 2018
Catchwords: NATIVE TITLE – a delegate of the Native Title Registrar decided to accept an ILUA for registration on the Register of ILUAs – application for judicial review of the delegate’s decision – s 24CK of the Native Title Act 1993 (Cth) – whether the decision invoked an error of law – whether the delegate failed to take relevant considerations into account – meaning of “all reasonable efforts” and “who hold or may hold native title” – whether irrelevant considerations taken into account – application dismissed.
Legislation:

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 3(1), 50, 71

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Administrative Appeals Tribunal Act 1975 (Cth)

Federal Court of Australia Act 1976 (Cth) s 25

Native Title Act 1993 (Cth) ss 13, 24AA(3), 24CB‑24CE, 24CG, 24CH, 24CI, 24CJ, 24CK, 24CL, 24DE, 60AB, 61, 84, 84C, 86, 87A, 203BE, 223(1), 224, 251A, 253

Native Title Amendment Act 1998 (Cth)

Veterans’ Entitlements Act 1986 (Cth) s 120

Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561

Attorney‑General of the State of New South Wales v Quin (1990) 170 CLR 1

Ballantyne v WorkCover Authority of NSW [2007] NSWCA 239

Borkovic v Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186

Bruce v Cole (1998) 45 NSWLR 163

Bushell v Repatriation Commission (1992) 175 CLR 408

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; (2015) 235 FCR 40

Coutts v Close [2014] FCA 19

Fesl v Delegate of the Native Title Registrar [2008] FCA 1469; (2008) 173 FCR 150

Hazelbane on behalf of the Warai and Kungarakany Groups v Northern Territory of Australia [2011] FCA 1186

Hazelbane v Northern Territory [2008] FCA 291

Hazelbane v Northern Territory [2011] FCA 1186

Hazelbane v Northern Territory [2014] FCA 886

Kemp v Native Title Registrar [2006] FCA 939; (2006) 153 FCR 38

Lee v Napier [2013] FCA 236, (2013) 216 FCR 562

Love v State of Victoria [2009] VSC 215

Mabo v Queensland (No 2) (1992) 175 CLR 1

McDonald v Director‑General of Social Security (1984) 1 FCR 354

Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

MT (deceased) v State of Western Australia [2013] FCA 1302

Murray v National Native Title Tribunal [2003] FCAFC 220; (2003) 132 FCR 402

Pareroultja v Tickner (1993) 42 FCR 32

Purkess v Crittenden (1965) 114 CLR 164

QGC Pty Ltd v Bygrave (No 2) [2010] FCA 1019; (2010) 189…

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Details
Case
[2018] FCA 752
Decision Date

CaseChat Overview and Summary

In the case of Bright v Northern Land Council, the applicants sought judicial review of a decision by a delegate of the Native Title Registrar to accept an Indigenous Land Use Agreement (ILUA) for registration on the Register of ILUAs. The applicants argued that the decision was flawed due to various errors of law, including the delegate failing to take relevant considerations into account and taking irrelevant considerations into account. The dispute centred around the meaning of "all reasonable efforts" and "who hold or may hold native title" within the context of s 24CK of the Native Title Act 1993 (Cth).

The legal issues before the court involved determining whether the delegate had indeed erred in law by failing to take into account certain relevant considerations and by taking into account irrelevant considerations. The applicants claimed that the delegate had not properly considered anthropological evidence and had overlooked competing claims to native title. The court had to assess whether these claims had merit and if the delegate's decision was legally sound.

The court examined the arguments put forward by the applicants and the submissions regarding the anthropological evidence. It found that the applicants had not adequately developed their submissions concerning the alleged errors, and many of the arguments were implicitly abandoned. The court concluded that the delegate had not erred in law by failing to take relevant considerations into account or by taking irrelevant considerations into account. The anthropological evidence presented was not deemed sufficiently cogent to support the claims of the applicants. The court found that the delegate's decision was reasonable and did not involve any legal errors as alleged by the applicants.

The court dismissed the application for judicial review, holding that the delegate's decision to accept the ILUA for registration was legally sound. The applicants did not establish any of the grounds for review they had pleaded. Consequently, the court upheld the decision of the delegate.

Orders

Orders of the court

1. The application is dismissed.

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

Background

Background to the litigation

Accordingly, the Delegate held that the Mak Mak Objectors had not established that the requirements of s 203BE(5)(a) had not been satisfied, at [125]. She went on to find that the remaining requirements of s 24CK were satisfied.Further background In her consideration of the objections, the Delegate reviewed in some detail the history of claims by the Rak Mak Mak Marranunggu and others to be the traditional owners of, or to hold native title rights and interests in, the agreement area and its vicinity. It is of course trite that the present application under s 5 of the ADJR Act is not the occasion for a merits review of the Delegate’s decision. It is not the function of this Court to consider for itself whether the Delegate should have been satisfied of the matters to which s 203BE(5) refers. Nor is the application to be determined in the manner of an appeal under s 25 of the Federal Court of Australia Act 1976 (Cth). The Court is concerned only with the question of whether one or more of the pleaded grounds of review is established. Nevertheless, it is appropriate to outline the claims to which the Delegate referred as they form much of the background to the grounds which the applicants advanced in the present proceedings. The first (presently relevant) claim was the Finniss River Land Claim (the FRLC) lodged by the NLC on 20 July 1979 under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALR Act). This claim did not include the Town of Batchelor but areas in its vicinity to its east, north and west. The FRLC was made by three groups acting in common: the Kungarakany, the Warai and the Marranunggu. During the progress of the claim, it emerged that two groups, the Kungarakany and Warai, on the one hand, and the Marranunggu, on the other, asserted traditional ownership of the land, each to the exclusion of the other. Accordingly, at the hearing of the FRLC, the Kungarakany/Warai claimants and the Marranunggu claimants had separate representation and each called anthropological evidence (in the Marranunggu’s case from Dr P Sutton). The hearing was substantial, occupying some 35 days in 1980 and 1981 with a considerable amount of evidence being adduced. The Honourable J Toohey, the then Aboriginal Land Commissioner, delivered his report on the FRLC to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory on 22 May 1981. He reported that the Marranunggu claimants were the traditional owners of certain areas (Area 1 and part of Area 2) and that the Kungarakany and Warai claimants were the traditional owners of other areas (part of Area 3 and Areas 4 and 5). Area 3 is to the west and southwest of Batchelor and Area 4 is its north. At its southern edge, Area 4 abuts the Town of Batchelor. No part of Areas 1 and 2 was immediately adjacent to the Town of Batchelor which is located between Areas 3 and 4. The second matter was the “Enquiry into Competing Claims to Traditional Ownership of the Wagait Land Trust Area” by the Wagait Committee which took place over some 32 hearing days in 1993 and 1994, and reported its findings in July 1995. The Wagait Committee was an ad hoc committee established by the NLC on 4 June 1992 to report to it on the competing claims to traditional ownership of the Wagait Reserve, two areas within which were known as Big Wagait and Little Wagait. Both are to the west of Batchelor. The Kungarakany claimants, the Warai claimants, the Marranunggu claimants and the Werat claimants participated in the hearing. The Committee comprised a number of senior Aboriginal people who were assisted by an anthropologist, Dr Ritchie (who also chaired proceedings) and Mr M Maurice QC (a former Aboriginal Land Commissioner). The Marranunggu adduced anthropological evidence from Dr D Rose, the Kungarakany from Dr N Williams and the Warai from Professor B Sansom. The Committee reported that the Marranunggu were the traditional owners of some areas in the Wagait Land Trust area, but these were well to the west of Batchelor and separated from it by intervening land and waters.

Evidence

Evidence Before The Court

This alleged error can be disposed of quite shortly. The Delegate’s reasons do not contain, in [111]‑[116], or elsewhere, the determination attributed to her. I add that the applicants did not develop any submissions at all in support of this alleged error and, as noted, did not even refer in any of their submissions to [111]‑[116]. The allegation should be taken to have been implicitly abandoned, and fails in any event.The finding of insufficient cogent supporting anthropological evidence The fourth error of law alleged by the applicants was that the Delegate had erred in determining that “there is no, or insufficient cogent supporting anthropological evidence to support the claims of the Mak Mak Marranunggu over the Town of Batchelor”, at [117]. The passage in question has been set earlier. The applicants’ characterisation of the Delegate’s statement as a determination does not seem appropriate, as it was only a statement of the Delegate’s understanding of the position. In doing so, the Delegate appeared to be doing no more than indicating that the position did not appear to have changed since Batchelor No 3 was discontinued, namely, that the Rak Mak Mak Marranunggu had not provided proposed “cogent supporting anthropological evidence in support of [their] claim” of the kind which Mansfield J had indicated would be required for them to have a grant of leave to institute a further application under s 61 of the NT or to apply to become a party to the proceedings of others concerning the Town of Batchelor. However, that point can be put to one side. At the hearing, the applicants did refer, briefly, to this alleged error of law but did not develop any submission concerning it. Nor, subject to the matters to be addressed next, did they identify the anthropological evidence before the Delegate which they contended should have been regarded as sufficiently cogent and supportive of their claims. It is convenient to refer at this point to the three theories as to the origins of the Rak Mak Mak Marranunggu which counsel submitted were unresolved, thereby giving rise to “the controversy” said to exist concerning their claims to be the traditional owners and the persons holding native title in areas both north and south of the Daly River:(a)that the Rak Mak Mak Marranunggu migrated north of the Daly River at some time after European settlement and before World War I; (b)that the traditional lands of the Rak Mak Mak Marranunggu are wholly south of the Daly River;(c)that the Rak Mak Mak Marranunggu and another group, the Dektyerety, are in fact the same people and are the traditional owners of land north of the Daly River. It is apparent that the adoption of one or other of these theories may be determinative of whether the Rak Mak Mak Marranunggu can establish continuity of interest in some areas north of the Daly River. The applicants regard the issue as important because the Town of Batchelor is in an area north of the Daly River. The respondents’ position is that, even if the Rak Mak Mak Marranunggu do have native title rights and interests north of the Daly River, the evidence is overwhelmingly to the effect that it is in areas well to the west of Batchelor.

Decision

Reasons for decision

The provisions in s 5 of the ADJR Act on which the applicants rely are: 5 Applications for review of decisions(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:…(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;…(h)that there was no evidence or other material to justify the making of the decision;…(2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:(a)taking an irrelevant consideration into account in the exercise of a power;(b)failing to take a relevant consideration into account in the exercise of a power;…(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;…(3)The ground specified in paragraph (1)(h) shall not be taken to be made out unless:(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.The statutory scheme for the registration of ILUAs Division 3 of Pt 2 of the NT Act provides for the validity of certain “future acts”, that is, (relevantly) certain acts occurring after 1 January 1994 (when the NT Act came into operation) which affect native title. In particular, a future act will be valid if the parties to an indigenous land use agreement (an ILUA) consent to it and if details of the ILUA are registered on the Register (s 24AA(3)). Division 3 contemplates ILUAs of three kinds. These proceedings are concerned with the kind referred to as “area agreements”, the requirements for which are set out in ss 24CB to 24CE of the NT Act. It was common ground that the requirements of these sections had been satisfied in the present case. Section 24CG of the NT Act provides for applications to the Registrar for registration of ILUAs. Subsection (3) provides:Certificate or statement to accompany application in certain cases(3) Also, the application must either:(a)have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 203BE(1)(b) in relation to the area; or(b)include a statement to the effect that the following requirements have been met:(i)all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;(ii)all of the persons so identified have authorised the making of the agreement;Note: The word authorise is defined in subsection 251A(1).together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.In the present case, the application included a certificate under subpara(a).

Ratio Decidendi

Legal Principle Established

For these reasons, the applicants do not make out any of their grounds alleged a failure by the Registrar to take into account a relevant consideration. Taking irrelevant considerations into account The applicants contended that the Delegate’s decision was an improper exercise of the power under s 24CK(2)(c) because she had, within the meaning of s 5(2)(a) of the ADJR Act, taken into account two irrelevant considerations. Applicable principles As Griffiths J noted in Coutts v Close [2014] FCA 19 at [180], the concept of taking an irrelevant consideration into account is, in effect, the obverse of the concept of a failure to take into account a relevant consideration: the former is prohibited while the latter is mandated. Like Griffiths J, I respectfully agree with the following statement of Basten JA in Ballantyne v WorkCover Authority of NSW [2007] NSWCA 239 at [113]:In the language of judicial review, “relevant considerations” are mandatory considerations in the sense that any failure to take them into account, in circumstances where they are engaged, will be an error in point of law. A similar principle is reflected in the concept of “irrelevant considerations”. These are factors which are extraneous to the proper exercise of the power, so that to take them into account will also reveal legal error. These two categories do not, however, constitute an exclusive description of matters which may be considered. There will, in very many cases, be a category of legitimate factors, consideration of which is neither mandated or precluded. In Sunshine Coast Broadcasters Pty Ltd v Australian Communications & Media Authority [2012] FCA 1205; (2012) 209 FCR 518, Kenny J adopted, at [104]‑[105], the statement by Cavanough J in Love v State of Victoria [2009] VSC 215 at [191] of the principles with respect to the irrelevant considerations ground of judicial review:To successfully impugn an administrative decision on the “irrelevant considerations” ground, a challenger must satisfy the Court of three things:(a) that the particular consideration was in fact taken into account;(b)that the consideration was irrelevant, in the sense that under the applicable statutory provisions the taking into account of the consideration was impermissible; and(c)that the applicable statutory provisions have the effect that taking the consideration into account will result in invalidity. Reliance on anthropological material not obtained for the purposes of s 203BE(5) The first irrelevant consideration said by the applicants to have been taken into account by the Delegate was her reliance on “anthropological material commissioned by the NLC in its capacity as the legal representative of the applicant in the various Federal Court proceedings and hearings … as if (erroneously) that … material had been obtained for the purposes of s 203BE(5)(a) and (b)”. As can be seen, the subject matter of this complaint is the same as the subject of the sixth error of law and of the first relevant consideration said not to have been taken into account by the Delegate. The applicants’ reliance on this ground seemed to be yet another way of making the same complaint.