Evans v Native Title Registrar

Case [2004] FCA 1070

FEDERAL COURT OF AUSTRALIA

Evans v Native Title Registrar [2004] FCA 1070

NATIVE TITLE – review of application for registration of claim – whether any errors of law or fact in reasons of delegate of Registrar – information failing to make clear character of authorisation relied upon – response to preliminary assessment also failing to clarify source of authority – delegate not in error – no misperception of administrative decision-making role – no failure to apply correct test – no reliance on irrelevant considerations or failure to take into account relevant considerations – no wrong approach to statutory provisions

Native Title Act 1993 (Cth) ss 190A, 190B, 190C, 190D, 251B, 253

Federal Court Rules O 78 r 10(2)

Daniel v Western Australia (2002) 194 ALR 278 considered
Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637 cited
Northern Territory of Australia v Doepel (2003) 203 ALR 385 considered
Risk v National Native Title Tribunal [2000] FCA 1589 cited
Strickland v Native Title Registrar (1999) 168 ALR 242 considered
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 referred to
Ward v Northern Territory [2002] FCA 171 considered
Western Australia v Native Title Registrar [1999] FCA 1594 cited
Western Australia v Strickland (2000) 99 FCR 33 applied
Western Australia v Ward (2002) 213 CLR 1 cited
Wilson v Anderson (2002) 213 CLR 401 cited

RICHARD GUY EVANS, DAWN EVANS, BRETT ANDREW LEWIS, GERALDINE HOGARTH and JOAN TUCKER ON BEHALF OF THE KOARA PEOPLE v NATIVE TITLE REGISTRAR and THE STATE OF WESTERN AUSTRALIA
W200 of 2003

RD NICHOLSON J
19 AUGUST 2004
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W200 OF 2003

BETWEEN:

RICHARD GUY EVANS, DAWN EVANS, BRETT ANDREW LEWIS, GERALDINE HOGARTH AND JOAN TUCKER ON BEHALF OF THE KOARA PEOPLE
APPLICANTS

AND:

NATIVE TITLE REGISTRAR
FIRST RESPONDENT

THE STATE OF WESTERN AUSTRALIA
SECOND RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

19 AUGUST 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

The application to review the decision of the delegate of the Registrar of Native Title dated 29 August 2003 be dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W200 OF 2003

BETWEEN:

RICHARD GUY EVANS, DAWN EVANS, BRETT ANDREW LEWIS, GERALDINE HOGARTH AND JOAN TUCKER ON BEHALF OF THE KOARA PEOPLE
APPLICANTS

AND:

NATIVE TITLE REGISTRAR
FIRST RESPONDENT

THE STATE OF WESTERN AUSTRALIA
SECOND RESPONDENT

JUDGE:

RD NICHOLSON J

DATE:

19 AUGUST 2004

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. This is an application brought by the applicants in reliance on s 190D(2) of the Native Title Act 1993 (Cth) (‘the NTA’). It seeks review of a decision made by a delegate (‘the delegate’) of the first respondent (‘the Registrar’) on 29 August 2003. The decision was that an application by the applicants for determination of native title be not accepted…

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Details
AGLC
Evans v Native Title Registrar [2004] FCA 1070
Case
[2004] FCA 1070
Decision Date

CaseChat Overview and Summary

Evans and others have applied to review a decision made by the Native Title Registrar. The dispute concerns the Registrar’s refusal to authorise a representative body to institute native title proceedings. The applicants argue that the decision-making process was flawed and that certain errors of law were made during the consideration of their application. The case was heard in the Federal Court of Australia.

The legal issues before the court were whether the Registrar had taken into account an irrelevant consideration, whether the decision-making process was adversely affected by the exercise of great care, and whether the Registrar had misinterpreted the applicants’ evidence. The applicants contended that the Registrar had improperly considered the geographical location of the application and had misinterpreted the provisions of s 251B of the Native Title Act 1993 (Cth). They further argued that they should not be required to elect between the two types of processes outlined in the statute.

The court found that there was no evidence that the email or the exercise of great care had any adverse effect on the decision-making process. The court also found that the Registrar had not misinterpreted the applicants’ evidence. The court held that the applicants must elect a description of the process and that the statement by French J in Daniel v Western Australia did not support the applicants’ claim. The court concluded that the application for review should be dismissed as none of the grounds of review established any error of law or fact.

The court ordered that the application to review the decision of the delegate of the Registrar of Native Title dated 29 August 2003 be dismissed. The decision confirmed that the grounds of review raised by the applicants did not establish any error of law or fact in the decision-making process.

Orders

Orders of the court

The application to review the decision of the delegate of the Registrar of Native Title dated 29 August 2003 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There is no evidence that the email had the effect claimed. Nor is there any evidence that the great care exercised by the delegate adversely affected the exercise of his discretion. Nothing adverse to the decision-making process arises from the reference by the delegate to the need to approach the decision with caution or from the reason that he gave for that approach.REVIEW GROUND 3(a): ERROR OF LAW IN WRONG INTERPRETATION OF APPLICANTS’ EVIDENCE This ground, which is said to raise an error of law, asserts a misconstruction of the evidence of the applicants when the Registrar held that they had conflated the provisions of s 251B(a) and s 251B(b). The applicants assert that such interpretation was not open on the documents. It is said that insofar as the delegate held, adversely to the applicants, that they must elect a description of the process, he was in error. Reference is made to Daniel v Western Australia (2002) 194 ALR 278 at [14] where French J referred to the difficulties of clearly identifying traditional processes of decision-making in the authorisation process. It is submitted that both types of process may in fact be playing a part and there is no reason why the applicants could not state that both processes are applicable. It is submitted that if the Registrar takes the view that a required process does not fit in with a fair description of a ‘traditional’ process then the alternative limb can be considered. In Daniel at [14] French J said:‘[14] … In so far as s 251B relies upon decision-making under traditional law and custom, it seems to allow for recognition of a process applicable by way of analogy to decision-making relating to the institution of native title proceedings under the Act. For that is hardly a matter likely to have been contemplated explicitly by traditional law and custom. It may be that it is sufficient for the purposes of par (a) of s 251B to identify traditional decision-making applicable to the exercise of responsibility for, or authority over the land and waters in question. Nevertheless it should not be surprising if there is some difficulty in applying traditional decision-making processes, albeit by closest analogy, to the conferring of the kind of authority contemplated by s 251B.’That statement is not one which provides any support for conflating the two processes provided for by the legislature in s 251B of the NTA. It is necessary, if the Registrar is to be satisfied under s 190A(6), that the information placed by claimants before him demonstrate compliance with either of the processes for which the legislature has allowed. That information may, in cases where the facts require, show that traditional processes have led to the adoption of a certain method by which authorisation has been given. However, that was not the effect of the information here. It is for the Registrar to decide whether or not he is satisfied on the issue of authorisation on the information brought to him. If he is not satisfied, he may either conclude accordingly or seek further information. Here the delegate chose the latter course. The explanation provided, however, did not deal with the specifics of the matter.

Decision

Reasons for decision

There is nothing therefore in the Tucker affidavit which can assist in making out either of these two grounds of review, which otherwise have been found not to be tenable.CONCLUSION For the above reasons I do not consider any of the grounds of review have established any error of law or fact. Accordingly the application for review should be dismissed.

Ratio Decidendi

Legal Principle Established

This ground of review does not give rise to any error of fact or law in the approach taken by the delegate to his administrative duties.REVIEW GROUND 2: ERROR OF LAW IN TAKING INTO ACCOUNT IRRELEVANT CONSIDERATION This ground asserts that the Registrar improperly exercised his power to consider the acceptance of the application for registration under s 190A of the NTA in that he took into account the irrelevant consideration that the area of the application was in the Goldfields region with considerable mining and that he therefore needed to ‘exercise extra care’ in consideration of the matter. It is claimed this aspect of the reasons seems to have been generated by an email between Tribunal staff members dated 6 November 2002 that appears on the Registrar’s file. There is no evidence that the email had the effect claimed. Nor is there any evidence that the great care exercised by the delegate adversely affected the exercise of his discretion. Nothing adverse to the decision-making process arises from the reference by the delegate to the need to approach the decision with caution or from the reason that he gave for that approach.REVIEW GROUND 3(a): ERROR OF LAW IN WRONG INTERPRETATION OF APPLICANTS’ EVIDENCE This ground, which is said to raise an error of law, asserts a misconstruction of the evidence of the applicants when the Registrar held that they had conflated the provisions of s 251B(a) and s 251B(b). The applicants assert that such interpretation was not open on the documents. It is said that insofar as the delegate held, adversely to the applicants, that they must elect a description of the process, he was in error. Reference is made to Daniel v Western Australia (2002) 194 ALR 278 at [14] where French J referred to the difficulties of clearly identifying traditional processes of decision-making in the authorisation process. It is submitted that both types of process may in fact be playing a part and there is no reason why the applicants could not state that both processes are applicable. It is submitted that if the Registrar takes the view that a required process does not fit in with a fair description of a ‘traditional’ process then the alternative limb can be considered. In Daniel at [14] French J said:‘[14] … In so far as s 251B relies upon decision-making under traditional law and custom, it seems to allow for recognition of a process applicable by way of analogy to decision-making relating to the institution of native title proceedings under the Act. For that is hardly a matter likely to have been contemplated explicitly by traditional law and custom. It may be that it is sufficient for the purposes of par (a) of s 251B to identify traditional decision-making applicable to the exercise of responsibility for, or authority over the land and waters in question. Nevertheless it should not be surprising if there is some difficulty in applying traditional decision-making processes, albeit by closest analogy, to the conferring of the kind of authority contemplated by s 251B.’That statement is not one which provides any support for conflating the two processes provided for by the legislature in s 251B of the NTA.