Corunna v Native Title Registrar - [2013] FCA 372

FEDERAL COURT OF AUSTRALIA
Corunna v Native Title Registrar [2013] FCA 372

Citation: Corunna v Native Title Registrar [2013] FCA 372

Parties: ALBERT CORUNNA, RICHARD WILKES, VICTOR WARRELL, BELLA BROPHO, GREGORY GARLETT, KATHLEEN PENNY, CLIVE DAVIS v NATIVE TITLE REGISTRAR and STATE OF WESTERN AUSTRALIA

File number: WAD 159 of 2012

Judge: SIOPIS J

Date of judgment: 24 April 2013

Catchwords: NATIVE TITLE – application for review of a decision under s 190F(1) of the Native Title Act 1993 (Cth) – whether a native title determination application met the conditions for registration under s 190B(5) of the Native Title Act – whether the materials provided by the applicant demonstrated a factual basis sufficient to support the assertion of an association by the claim group with the entire area of the claim.

Legislation: Native Title Act 1993 (Cth) ss 190B(5), 190B(5)(a), 190B(5)(b), 190B(5)(c), 190B(6)

Cases cited: Gudjala People # 2 v Native Title Registrar [2007] FCA 1167
Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157
Martin v Native Title Registrar [2001] FCA 16

Date of hearing: 23 October 2012

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 47

Counsel for the Applicant: Mr A Corunna, appeared on behalf of the applicant.

Counsel for the State of Western Australia:
Mr G Ranson

Solicitor for the State of Western Australia:
State Solicitor’s Office

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 159 of 2012

BETWEEN:
ALBERT CORUNNA, RICHARD WILKES, VICTOR WARRELL, BELLA BROPHO, GREGORY GARLETT, KATHLEEN PENNY, CLIVE DAVIS
Applicant

AND:
NATIVE TITLE REGISTRAR
First Respondent

STATE OF WESTERN AUSTRALIA
Second Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

24 APRIL 2013

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The application for review filed on 17 July 2012 is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 159 of 2012

BETWEEN:
ALBERT CORUNNA, RICHARD WILKES, VICTOR WARRELL, BELLA BROPHO, GREGORY GARLETT, KATHLEEN PENNY, CLIVE DAVIS
Applicant

AND:
NATIVE TITLE REGISTRAR & ANOR
First Respondent

STATE OF WESTERN AUSTRALIA
Second Respondent

JUDGE:

SIOPIS J

DATE:

24 APRIL 2013

PLACE:

PERTH

REASONS FOR JUDGMENT

The applicant in this proceeding comprises Mr Albert Corunna and six other persons who are members of the applicant of the native title determination claim brought on behalf of the Swan River People. The native title determination application is referred to as the Swan River People # 2 native title determination application. That application was filed with the Federal Court on 1 February 2011. On 15 April 2011, the application was not accepted for registration pursuant to s 190A of the Native Title Act 1993 (Cth).
On 17 February 2012, the Court granted the applicant leave to file an amended native title determination application, in terms of a proposed amended application which had been lodged with the Court on 25 November 2011.
On 29 May 2012, a delegate of the National…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Corunna v Native Title Registrar

Details

AGLC: Corunna v Native Title Registrar [2013] FCA 372
Case: [2013] FCA 372
Decision Date

CaseChat Overview and Summary

In the case of Corunna v Native Title Registrar, the applicant sought judicial review of a decision by the Native Title Registrar to refuse to register a native title claim. The dispute centered on the interpretation and application of specific provisions of the Native Title Act, particularly sections 190B(5)(a) and 190B(5)(b), which relate to the conditions for registration of native title rights and interests. The applicant contested the Registrar's decision on the grounds that the factual basis provided was insufficient to support the assertion that the native title claim group, and their predecessors, had an association with the entire claimed area.

The legal issues before the court were whether the Registrar had correctly interpreted and applied the conditions for registration under sections 190B(5)(a) and 190B(5)(b) of the Native Title Act. The court needed to determine whether the Registrar's finding that the applicant had not demonstrated a sufficient factual basis for an association with the entire claimed area, particularly the sea area west of Rottnest Island, was correct. The applicant argued that the Registrar had misinterpreted the requirement for an association with the whole area by the whole group.

The court found that the Registrar's interpretation of the statutory provisions was correct. The court upheld the Registrar's decision that the material provided by the applicant was insufficient to demonstrate a factual basis for an association with the entire claimed area. The court agreed with the Registrar's reliance on the observations of Dowsett J in Gudjala People # 2 v Native Title Registrar, which emphasised that there must be evidence of an association between the whole group and the whole area of the claim. The court concluded that the Registrar's decision was not flawed and the applicant's challenge to the Registrar's decision was unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is necessary to set out the provisions of s 190B(5) of the Native Title Act. That subsection provides:(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.THE MEMBER’S DECISION The applicant’s attack on the member’s decision is focused upon the member’s interpretation and application of the conditions for registration referred to in s 190B(5)(a) and s 190B(5)(b) of the Native Title Act. As mentioned, the member, like the delegate, was not satisfied that there had been compliance by the applicant with those conditions. In relation to s 190B(5)(a), the member found that the material provided by the applicant did demonstrate a factual basis sufficient to support the assertion that the claim group have, and their predecessors had, an association with the land area of the claim and the portion of the sea claim between Rottnest Island and the mainland. However, the member went on to find that the material provided by the applicant did not demonstrate a factual basis which was sufficient to support the assertion that the claim group have, and their predecessors had, an association with that part of the claim area over the sea area west of Rottnest Island. This was fatal to the acceptance of the claim for registration. This is because the member found that it was necessary for the material to provide a factual basis sufficient to support the assertion that the claim group have, and their predecessors had, an association with the whole of the claim area. In support of that construction of s 190B(5)(a), the member referred to the following observations of Dowsett J in Gudjala People # 2 v Native Title Registrar [2007] FCA 1167 at [52] (Gudjala People # 2):I do not mean that all members [of the claim group] must have such association at all times. However there must be evidence that there is an association between the whole group and the area. Immediately thereafter, the member went on to say:In short the test is not that there is evidence before the Delegate that each member of the claim group has an association over the whole area, but cumulatively, there is material before the delegate that shows an association between the whole group and the whole area of the claim. (Emphasis added) In reaching his decision, the member had regard to the material that was before the delegate, which included affidavits sworn on 24 November 2011 by each of Ms Bella Bropho and Mr Albert Corunna. The member also had regard to materials which had not been before the delegate, namely, the applicant’s submissions dated 12 April 2012, the affidavit of Mr Corunna sworn on 18 April 2012 and Mr Corunna’s email sent on 27 April 2012.

Ratio Decidendi

Legal Principle Established

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Citation:		Corunna v Native Title Registrar [2013] FCA 372
Parties:		ALBERT CORUNNA, RICHARD WILKES, VICTOR WARRELL, BELLA BROPHO, GREGORY GARLETT, KATHLEEN PENNY, CLIVE DAVIS v NATIVE TITLE REGISTRAR and STATE OF WESTERN AUSTRALIA
File number:		WAD 159 of 2012
Judge:		SIOPIS J
Date of judgment:		24 April 2013
Catchwords:		NATIVE TITLE – application for review of a decision under s 190F(1) of the Native Title Act 1993 (Cth) – whether a native title determination application met the conditions for registration under s 190B(5) of the Native Title Act – whether the materials provided by the applicant demonstrated a factual basis sufficient to support the assertion of an association by the claim group with the entire area of the claim.
Legislation:		Native Title Act 1993 (Cth) ss 190B(5), 190B(5)(a), 190B(5)(b), 190B(5)(c), 190B(6)
Cases cited:		Gudjala People # 2 v Native Title Registrar [2007] FCA 1167 Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 Martin v Native Title Registrar [2001] FCA 16
Date of hearing:	23 October 2012
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	47
Counsel for the Applicant:	Mr A Corunna, appeared on behalf of the applicant.
Counsel for the State of Western Australia:	Mr G Ranson
Solicitor for the State of Western Australia:	State Solicitor’s Office

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 159 of 2012

JUDGE:	SIOPIS J
DATE OF ORDER:	24 APRIL 2013
WHERE MADE:	PERTH

JUDGE:	SIOPIS J
DATE:	24 APRIL 2013
PLACE:	PERTH