Gardiner v Taungurung Land and Waters Council
[2021] FCA 80
•9 February 2021
FEDERAL COURT OF AUSTRALIA
Gardiner v Taungurung Land and Waters Council [2021] FCA 80
File number(s): VID 384 of 2020 Judgment of: MORTIMER J Date of judgment: 9 February 2021 Catchwords: NATIVE TITLE – application for judicial review of decision of delegate of the Native Title Registrar – decision to accept Indigenous Land Use Agreement for registration – task of Registrar under s 24CK(2) of the Native Title Act 1993 (Cth) – s 203BE(5)(a) of the Native Title Act – meaning of “all reasonable efforts” to identify people who hold or may hold native title – application upheld. Legislation: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Court Rules 2011 (Cth)
Native Title Act 1993 (Cth) ss 24CJ, 24CK, 203BE(5), 223, 251A
Traditional Owner Settlement Act 2010 (Vic)
Cases cited: AQV15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83
BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54
Bright v Northern Land Council [2018] FCA 752
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352
Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; 235 FCR 40
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175
DCU18 v Minister for Home Affairs [2020] FCA 1817
De Rose v State of South Australia (No 2) [2005] FCAFC 110; 145 FCR 290
Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510
Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69
Gardiner v Attorney-General (No 3) [2020] VSC 516
Gardiner v Attorney-General [2020] VSC 224
Kemppi v Adani Mining Pty Ltd (No 2) [2019] FCAFC 117
Mabo v State of Queensland (No 2) [1992] HCA 23; 175 CLR 1
McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172
McGlade v South West Aboriginal Land & Sea Corporation (No 2) [2019] FCAFC 238; 374 ALR 329
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422
Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural Affairs v Bhardwarj [2002] HCA 11; 209 CLR 597
Moses v State of Western Australia [2007] FCAFC 78; 160 FCR 148
Neowarra v State of Western Australia [2003] FCA 1402
Northern Land Council v Quall [2019] FCAFC 77
Northern Land Council v Quall [2020] HCA 33
Northern Territory v Alyawarr, Kaytetye, Warymungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
QGC Pty Ltd v Bygrave (No 3) [2011] FCA 1457; 199 FCR 94
Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26; 266 ALR 537
Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728
Tickner v Chapman [1995] FCA 1726; 57 FCR 451
TTY167 v Republic of Nauru [2018] HCA 61; 362 ALR 246
Widjabul Wia-Bal v Attorney-General of NSW [2020] FCAFC 34; 376 ALR 204
Division: General Division Registry: Victoria National Practice Area: Native Title Number of paragraphs: 321 Date of last submission/s: 30 November 2020 Date of hearing: 10 December 2020 Counsel for the Applicants: Ms A Sheehan with Ms S Armstrong Solicitor for the Applicants: Holding Redlich Counsel for the First Respondent: Ms E Longbottom QC with Mr M Albert Solicitor for the First Respondent: First Nations Legal & Research Services Counsel for the Second Respondent: Mr P Willis SC with Ms L Bennett Solicitor for the Second Respondent: Victorian Government Solicitor’s Office ORDERS
VID 384 of 2020 BETWEEN: MARGARET GARDINER
First Applicant
GARY MURRAY
Second Applicant
VINCENT PETERS (and another named in the Schedule)
Third Applicant
AND: TAUNGURUNG LAND AND WATERS COUNCIL (ABORIGINAL CORPORATION ICN 4191)
First Respondent
STATE OF VICTORIA
Second Respondent
NATIVE TITLE REGISTRAR
Third Respondent
ORDER MADE BY:
MORTIMER J
DATE OF ORDER:
9 FEBRUARY 2021
THE COURT DIRECTS THAT:
1.The parties provide submissions on the question of the appropriate relief in light of the Court’s reasons for judgment, limited to 5 pages each, including submissions as to costs, and whether the question of relief should be determined on the papers or after a further oral hearing.
2.The respondents each file and serve submissions, limited to 5 pages, by 4pm on 23 February 2021.
3.The applicants file and serve submissions, limited to 5 pages, by 4pm on 9 March 2021.
4.The respondents file and serve any submissions in reply, limited to 3 pages, by 4pm on 16 March 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
This is an application for judicial review of a decision by a delegate of the Native Title Registrar dated 30 April 2020, to register the Taungurung Settlement Indigenous Land Use Agreement under s 24CK(1) of the Native Title Act 1993 (Cth). The Taungurung ILUA is an “area ILUA” under the Native Title Act and is a key component of a wider settlement under the Traditional Owner Settlement Act 2010 (Vic). While the parties did not address in detail the precise effect of the ILUA according to its terms, it is apparent that the ILUA provides for the surrender of native title over the area it covers in certain circumstances and the extinguishment of that title; that no native title is being recognised by the agreement; and that no compensation is payable under the Native Title Act. In return the State of Victoria has agreed to provide a range of economic and non-economic benefits to those who fall within the definition of the “traditional owner group” in the ILUA, through a corporation established as part of the settlement. It is not in dispute that the ILUA is intended to preclude any future claims for, and determination of, native title over the ILUA area.
The applicants are each persons who claim to hold native title in parts of the ILUA area. An affidavit in support of the application described the applicants as follows:
(a)the first Applicant, Ms Margaret Gardiner, is a Ngurai Illum Wurrung, indigenous elder as well as Waywurru elder, for present purposes;
(b)the second Applicant, Mr Gary Murray, is also a Dhudhuroa, indigenous elder as well as an elder of the Yorta Yorta People;
(c)the third Applicant, Mr Vincent Peters, is a Ngurai Illum Wurrung, indigenous elder; and
(d)the fourth Applicant, Ms Elizabeth Thorpe, is a Ngurai Illum Wurrung, indigenous elder as well as Waywurru.
The application is supported by two affidavits from David Shaw, the solicitor for the applicants, the second correcting an omission in his first affidavit. Mr Shaw’s affidavits were not affirmed at the time of their filing on 11 June 2020 and 7 July 2020 respectively, but were accepted for filing in accordance with practice note SMIN-1, Special Measures in Response to COVID-19. Mr Shaw’s affidavits were subsequently affirmed on 17 June 2020 and 9 December 2020 and refiled on 9 December 2020.
For the reasons set out below, the judicial review application will be upheld on some grounds, but not all of them. The parties will have an opportunity to be heard on the question of appropriate relief after they have considered the Court’s reasons.
BACKGROUND
The ILUA in dispute is the product of negotiations between the first respondent and the State that occurred for some years prior to its registration on 30 April 2020. It is part of a package of agreements between the Taungurung People and the State of Victoria forming part of a recognition and settlement agreement, entered into under s 4 of the TOS Act. As noted by Richards J in a decision in a related proceeding, Gardiner v Attorney-General [2020] VSC 224 (at [3]):
The settlement package is yet to be fully implemented. If and when that occurs, it will confer significant benefits on the Taungurung and its members. In particular, if the ILUA is registered, it will bind all persons holding native title in relation to any of the land or waters in the agreement area, who are not already parties to the agreement. Its effect will be to settle all native title claims in respect of the agreement area.
The first respondent, The Taungurung Land and Waters Council, is represented by First Nations Legal and Research Services. First Nations Legal is the Native Title Representative Body for Victoria, and receives Commonwealth funding to undertake this role pursuant to s 203FE of the Native Title Act. First Nations Legal is, accordingly, also a body which can certify the authorisation of an ILUA under s 203BE of the Act.
The ILUA was entered into on 26 October 2018. On 30 November 2018, First Nations Legal certified that the requirements in s 203BE(5)(a) and (b) had been met by the process leading to the agreement of the ILUA. The application for registration of the ILUA was made on 17 December 2018.
On 20 March 2019, the National Native Title Tribunal gave notification of the application to register the ILUA, in accordance with s 24CH of the Native Title Act.
On 6 June 2019, the solicitors for the applicants and certain other people, whom I will refer to as the objectors, wrote to First Nations Legal, stating that they intended to object to the registration on the bases that:
(a)the certification of the ILUA was “indistinguishable from the one held in Quall not to be a certification for the purposes of ss 24CG(3) and 203BE of the NT Act”, referring to the decision of the Full Court in Northern Land Council v Quall [2019] FCAFC 77; and
(b)the ILUA had not been authorised as required by s 251A of the Native Title Act, and so could not meet the conditions for proper certification under s 203BE of the Act.
The applicants requested that the application for registration be withdrawn.
On 20 June 2019, the applicants provided a letter of objection to the registration of the ILUA to the Native Title Registrar, noting in detail the objections they had previously provided to First Nations Legal.
First Nations Legal and the State each provided submissions to the Registrar in response to the objectors. These submissions are before the Court and are summarised below in the context of the summary of the delegate’s decision.
On 28 November 2019, the objectors submitted four affidavits, which had been filed in a related proceeding commenced in the Supreme Court of Victoria, to which I refer below.
On 30 April 2020, the Registrar’s delegate registered the ILUA under s 24CK of the Native Title Act. It remained registered at the time of trial and the time of the publication of these reasons for judgment. There was no challenge to the delegation by the Registrar of the exercise of power under s 24CK.
Related proceeding in the Supreme Court of Victoria
Prior to, and then concurrently with, the proceedings in this Court, judicial review proceedings were instituted in the Supreme Court of Victoria in relation to the recognition and settlement agreement. Three of the four plaintiffs in that proceeding are applicants in this proceeding. Consistently with their case in this proceeding, and amongst other claims, the applicants in the Supreme Court dispute that the Taungurung are the correct traditional owners (and native title holders) of the entire area covered by the recognition and settlement agreement. On 18 August 2020, Richards J determined that the Supreme Court proceeding be stayed until after the determination of the proceeding filed in this Court: Gardiner v Attorney-General (No 3) [2020] VSC 516.
Part A Threshold Statement request
As part of the process under the TOS Act, First Nations Legal’s predecessor, Native Title Services Victoria, on behalf of the Taungurung People, had prepared a Part A Threshold Statement under that Act and provided it to the State. That document was subject to a notice to produce in the Supreme Court proceeding, and became subject to an interlocutory judgment after the State refused to produce the document because it had been provided on a confidential basis: Gardiner VSC. Richards J described the document as follows (at [16]-[17]):
The Statement was prepared for and submitted on behalf of the Taungurung to formally initiate negotiations with the State for an agreement under the Settlement Act. It was prepared as required by the ‘Threshold Guidelines for Victorian traditional owner groups seeking a settlement under the Traditional Owner Settlement Act 2010’, published in 2013 by the Native Title Unit of the then Department of Justice. The Guidelines set out a process for traditional owner groups to seek entry into negotiations with the State towards a settlement under the Settlement Act, by lodgement of a threshold statement. They also set out the threshold matters to be addressed, and the process for the State’s consideration of a threshold statement.
The Guidelines contemplate that a threshold statement will be prepared in two parts. The Part A threshold statement is to contain six items:
A1. Statement of intent to negotiate
A2. Traditional owner group statement of association to country
A3. Description and basis of traditional owner group
A4. Description and basis of proposed agreement area
A5. Research process overview, chronology and findings
A6. Traditional owner group decision-making
(Footnotes omitted.)
Richards J made orders dated 1 May 2020 that the Part A Threshold Statement be provided to the Supreme Court, with leave to be given to the solicitors for the plaintiffs in the Supreme Court proceeding to inspect and copy the statement. The orders required that if the document was provided to the plaintiffs, they be required to undertake to maintain the confidentiality of the document and to not use the document or the information in it other than for the purposes of the Supreme Court proceeding. The result is that, at the time of the hearing in this Court, the applicants are aware of the contents of the Part A Threshold Statement, but the document is not before the Court in this proceeding.
The applicants did not however have access to the contents of this document at the time of the delegate’s decision on 30 April 2020. They did have access to a summary version. In 2014, a “summary threshold statement” was prepared, and published by the Victorian Department of Justice, inviting responses from the Victorian traditional owner community. There was no dispute in this proceeding that the applicants have had access to the summary threshold statement and it is before the Court in this proceeding.
During the ILUA notification period, on 7 November 2019, the solicitors for the applicants wrote to the Registrar, providing the applicants’ objections to the registration of the ILUA. Among other things, the letter noted that the Part A Threshold Statement was (at that time) subject to a notice to produce in the Supreme Court proceeding and that the State had resisted production. The applicants’ solicitors submitted that
the Registrar should request FNLRS and the State of Victoria to produce the Part A Threshold Statement and, on its provision, allow the objectors an opportunity to comment on its contents.
The letter submitted that the Part A Threshold Statement was
the fundamental document upon which the proponents of the ILUA must rely to assert 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.
The letter also made the following submissions:
In our view, the production of the Part A Threshold Statement would demonstrate the extent and quality of the research underpinning the ILUA in question and the efforts made to identify the Native Title claimants. As matters stand, apart from assertions made on behalf of the Taungurung Group and the brief research paper enclosed with the submissions made by FNLRS, no research material has been put before the Registrar to enable the Registrar to be satisfied that ‘all reasonable efforts’ have, in fact, been made.
Further, in considering whether ‘all reasonable efforts’ have been made for the purposes of s 203BE(5)(a) and (b) of the NTA, in light of White J’s comments in Bright extracted above to the effect that each case must be determined by its own circumstances, the Registrar, we submit, must bear in mind that the proposed Taungurung ILUA covers in excess of 8% of the land mass of the State of Victoria, i.e. an area of 20,210 square kilometres. The proponents of the Taungurung ILUA rely on the efforts of the respective proponents of the ILUA in the Bright and Kemppi cases to suggest that what amounted to ‘all reasonable efforts’ in those cases should be sufficient in this case. In our submission, this is misleading. The ILUA in issue in Bright concerned an area of land 10 square kilometres. The ILUA in issue in Kemppi concerned an area of land about 27.5 square kilometres. In this case, the proponents must, in light of the sheer size of the agreement area and the considerable implications for so many Victorian traditional owners, be held to a higher standard than was acceptable in the small agreement areas in the Bright and Kemppi cases.
The cases referred to in this extract are Bright v Northern Land Council [2018] FCA 752 and Kemppi v Adani Mining Pty Ltd (No 2) [2019] FCAFC 117.
The delegate noted this submission in her reasons at [94]. She stated:
I note that some objectors have suggested I should require First Nations to produce the Threshold Statement that was provided to the State on a confidential and without prejudice basis during the Settlement Act negotiations, and the information contained in the database maintained by First Nations. Further, there are assertions that the database does not distinguish between Taungurung and Ngurai Illum and that there is no evidence about how the database was compiled and what steps were taken to test the claims made by the people that they had native title over the land. As mentioned earlier, the onus here is on the objectors to satisfy me that the requirements of s 203BE(5)(a) are not met, and not on First Nations or any other party. I also note that First Nations has done extensive research into the composition of the Taungurung group, holds a genealogical register, and has also indicated that membership required more than blood descent for a person to retain rights and interests over a particular area. I understand that those people on the database met these criteria or have been verified through these means.
Finding
I find that the applicants were not provided with the Part A Threshold Statement at any time prior to the decision of Richards J on 1 May 2020, and so did not have access to a copy of the Part A Threshold Statement during the notification and objection process in 2019. I find also that the applicants made clear submissions to the Registrar that the document was central to the Registrar’s task, and to their ability properly to exercise their rights under s 24CI of the Native Title Act to object to the registration of the ILUA.
Application for extension of time
On 11 June 2020, the applicants filed an application for an extension of time under r 31.02 of the Federal Court Rules 2011 (Cth) to lodge an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application was accompanied by a supporting affidavit affirmed by Kylie Maree Rodman on 10 June 2020. It is unnecessary to consider at length the grounds for the application for extension of time, because the extension sought was of only four minutes. Ms Rodman’s affidavit stated that this brief delay in filing the application for judicial review was due to delays caused by her working from home, without access to the usual IT infrastructure of her office, also as a result, I infer, of the COVID-19 pandemic.
On 8 July 2020, I made orders extending the time for filing the originating application under s 11 of the ADJR Act. The application was subsequently filed on 17 July 2020.
The legislative scheme
For an ILUA to be registered, a decision such as that under review in this proceeding is required by ss 24CJ and 24CK of the Native Title Act, which provide:
24CJ Decision about registration
The Registrar must, after the end of the notice period, decide whether or not to register an agreement covered by an application under this Subdivision on the Register of Indigenous Land Use Agreements. However, in a case where section 24CL is to be applied, the Registrar must not do so until all persons covered by paragraph (2)(b) of that section are known.
24CK Registration of area agreements certified by representative bodies
Registration only if conditions satisfied
(1)If the application for registration of the agreement was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)) and the conditions in this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.
First condition
(2) The first condition is that:
(a)no objection under section 24CI against registration of the agreement was made within the notice period; or
(b)one or more objections under section 24CI against registration of the agreement were made within the notice period, but they have all been withdrawn; or
(c)one or more objections under section 24CI against registration of the agreement were made within the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the Registrar that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned.
Second condition
(3)The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement.
Matters to be taken into account
(4)In deciding whether he or she is satisfied as mentioned in paragraph (2)(c), the Registrar must take into account any information given to the Registrar in relation to the matter by:
(a)the persons making the objections mentioned in that paragraph; and
(b)the representative Aboriginal/Torres Strait Islander bodies that certified the application;
and may, but need not, take into account any other matter or thing.
Thus, the Registrar or her delegate has a binary choice under s 24CK. If the statutory conditions are met, she must register the ILUA. If they are not, she must not register the ILUA.
The certification function to which s 24CK(1) refers is, relevantly, the following part of s 203BE:
Certification of applications for registration of indigenous land use agreements
(5)A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:
(a)all reasonable efforts have been made 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; and
(b)all the persons so identified have authorised the making of the agreement.
The meaning of the condition in s 24CK(2)(c), and its application to the facts, is central to the applicants’ arguments on judicial review.
THE DELEGATE’S DECISION
The decision of the delegate of the Registrar set out the chronology prior to the registration decision as follows (at [2]-[9]):
On 20 October 2018, a meeting was held at Camp Jungai in Rubicon, Victoria to authorise the Taungurung Settlement ILUA (authorisation meeting).
On 17 December 2018, an application was made to the Registrar, pursuant to s 24CG(1) of the Act, for the registration of the Taungurung Settlement ILUA as an area agreement ILUA (see ss 24CA to 24CE). The area covers about 20,210 square kilometres and comprises land and waters south of the Murray River from Rochester to Wangaratta to the Great Dividing Range.
On 25 February 2019, I decided that the Registrar was required to give notice of the agreement, pursuant to s 24CH, because the procedural requirements for notification of the agreement had been met. It is not disputed that the application complied with the procedural requirements for notification and that the Registrar was thus obliged to notify the agreement.
The notice period commenced on 20 March 2019, and between 24 April to 20 June 2019, objections against the registration of the agreement were received from persons claiming to hold native title in the agreement area.
On 20 May 2019, the objectors and the parties were advised that the Registrar was considering the impact of the Full Federal Court’s decision in Northern Land Council v Quall [2019] FCAFC 77 (Quall) and that while undertaking such consideration, the delegate would stay the procedural fairness process in relation to each objection received. The parties were advised that the delegate was of the view that she was required to continue to assess the validity of any further objections that were made and that the procedural fairness for any prima facie valid objection would also be stayed. The parties were also requested to advise the delegate of their proposed course of action if they considered the Full Court’s decision would adversely affect the ability of the agreement being registered as an ILUA.
On 20 June 2019, the notice period for the agreement ended.
In the period from 2 August 2019 to 28 February 2020, the procedural fairness steps outlined in Attachment A were taken.
In November 2019, December 2019 and February 2020, the objectors and the parties were advised that, in my view, a fair opportunity had been provided for all relevant persons to comment on the objections and the responses received in relation to them, and that I would proceed to make a decision.
(Footnotes omitted.)
Some of the objections referred to in paragraph [5] of the delegate’s decision were objections raised on behalf of the applicants in this proceeding. The “procedural fairness steps” taken by the delegate were described in Attachment A to the delegate’s decision:
•On 24 April 2019, the Registrar received an objection against registration of the agreement from Mr Freddie Dowling.
•On 25 April 2019, the Registrar received an objection from Dr Judith Crispin.
•On 9 May 2019, the Registrar received an objection from Ms Michelle Carlon.
•On 20 May 2019, the objection by Dr Crispin was provided to First Nations as the native title service provider and the representative of the Taungurung Signatories and the Taungurung Clans Aboriginal Corporation, and the Victorian Government Solicitor’s Office as the representative of the State of Victoria. First Nations and the State of Victoria were also informed, by a separate letter of the objection by Mr Dowling but were advised that he had been given an opportunity to provide additional information to support his objection and that his legal representative, Mr Matthew Pudovskis had requested a copy of the application for registration to progress the objection.
•On 22 May 2019, the Victorian Government Solicitor’s Office confirmed that the parties agreed to only a copy of the certification of the application to be provided to Mr Dowling’s representative. The Victorian Government Solicitor’s Office also queried whether there would be a change to the registration process being undertaken in relation to the application following the decision of the Full Federal Court in Quall handed down on 20 May 2019.
•On 24 May 2019, the objectors and the parties to the agreement were informed that the application for registration may be affected by the Full Court’s decision in Quall and that the procedural fairness process had been stayed in relation to each objection until the Registrar had considered the implications of the decision. The parties were also informed that the delegate would continue to assess the validity of any further objections received and objections that were prima facie valid would also be stayed. The parties were requested to advise their proposed course of action if they considered the Full Court’s decision would adversely affect the ability of the agreement being registered as an ILUA.
•On 11 June 2019, the Registrar received an objection from Mr Darren Atkinson.
•On 17 June 2019, the Registrar received an objection from Mr Alan Dowling.
•On 19 June 2019, objections were received from Ms Nicole Atkinson, Ms Porsha Atkinson and Mr Kevin Atkinson.
•On 20 June 2019, objections were received from Mr Robert Nicholls and Professor Henry Atkinson.
•On 2 August 2019, the objections and supporting material, including letters of support of some of the objections, were provided to First Nations and the Victorian Government Solicitor’s Office.
•On 30 August 2019, in response to the objections, three submissions were received from First Nations responding to the objection of Mr Freddie Dowling, the objectors represented by Holding Redlich and other objectors (collectively the Bangerang and Wollithiga objectors).
On 10 September 2019, the State responded to the objections, also providing three submissions. A copy of the responses by First Nations and the State were provided to the objectors on 3 and 10 September 2019. The objectors were also provided with a copy of First Nations’ certificate pursuant to s 203BE of the Act which accompanies the application for registration.
•On 23 September 2019, Mr Alan Dowling provided a response to the submissions by First Nations, the State’s Comments and Attachment B to the State’s Comments (A Dowling’s Response).
•On 23 September 2019, Mr Kevin Atkinson, Mr Darren Atkinson, Ms Nicole Atkinson, and Ms Porsha Atkinson provided a document titled ‘Response to State of Victoria’s Comments on the Bangerang and Wollithica Objections’ (Atkinson’s response to State’s Comments) and a Parliament of Victoria First Session response by the Minister for Aboriginal Affairs.
•On 24 September 2019, Mr Kevin Atkinson, Mr Darren Atkinson, Ms Nicole Atkinson, and Ms Porsha Atkinson provided a document titled ‘Our Objectors Responses\To the FNLRS Response’ (Atkinson’s response to First Nations).
•The material received on 23 and 24 September 2019 was not provided to First Nations and the State for further comment as in my view the objectors did not raise new matters that required comment and a fair opportunity had been provided for all relevant persons to comment on these objections.
•On 7 October 2019, Mr Matthew Pudovskis provided a submission on behalf Mr Freddie Dowling, responding to the matters raised by First Nations and the State in their responses.
•On 7 November 2019, Holding Redlich provided a submission on behalf of its clients responding to submissions from the First Nations and the State.
•The objectors and the parties were advised that in my view the objectors represented by Holding Redlich did not raise new matters within the additional material provided that required further comment and that a fair opportunity had been provided for all relevant persons to comment on the objections. There was further correspondence in relation to this, and on 28 November 2019, Holding Redlich provided a letter enclosing four affidavits filed and served in the Supreme Court of Victoria proceeding.
•On 22 November 2019, the State provided comments in response to the submissions made on behalf of Mr Freddie Dowling.
•On 6 December 2019, First Nations provided a response to the submissions made on behalf of Mr Freddie Dowling.
•In response to these submissions, further submissions was provided by Mr Pudovskis on behalf of Mr Dowling on 21 January 2020.
•The parties were asked whether they wished to comment on the recent decision in McGlade No 2 and any other matter. The State and First Nations provided responses on 10 and 18 February 2020 respectively.
•On 28 February 2020, Mr Pudovskis provided submissions on behalf of Mr Dowling in response to the parties’ submissions.
•This material received in support of Mr Freddie Dowling’s objection was not provided to First Nations and the State for further comment as in my view the objectors did not raise new matters within the additional material provided requiring comment and because a fair opportunity had been provided for all relevant persons to comment on the objection.
From [10]-[13] the delegate considered the information to which she must have regard. From [14]-[17] the delegate set out the relevant text of ss 24CJ and 24CK.
The delegate considered (from [18]-[26]) the threshold question of whether the agreement was an ILUA within the meaning of that term in the Native Title Act. At [27], she concluded the agreement met the requirements of ss 24CB to 24CE and was an ILUA within the meaning of s 24CA of the Native Title Act. The applicants do not dispute that this was the correct conclusion.
The delegate then went on to consider the two conditions required by s 24CK, the first condition being that in s 24CK(2), (set out above at [25]). The delegate noted the mandatory nature of the requirement in s 24CK at [28]:
If the conditions of s 24CK(2) and (3) are satisfied, I must register the agreement and if they are not satisfied, I must not register the agreement: see s 24CK(1).
The first condition: s 24CK(2)
This condition is concerned with objections against registration of the agreement. From [31]-[37], the delegate considered whether the objections made were valid, and concluded that each objection was valid. From [38]-[45] the delegate considered the nature of the task required by s 24CK(2)(c) and stated:
I understand that the condition in s 24CK(2)(c) will be met unless the Registrar is satisfied that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification.
[Having set out s 203BE(5)]
Although s 203BE(5) states that ‘[a] representative body must not certify under paragraph 1(b) an application for registration of an indigenous land use agreement unless it is of the opinion that …’, the relevant test is at s 24CK(2)(c).
The delegate then considered a number of authorities of this Court, in particular the decisions in Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; 235 FCR 40 at [61]; Bright at [49] and Kemppi at [79] and [84]. The delegate described these decisions as having the effect that “the objectors have the onus of satisfying the Registrar that one or both of the requirements in s 203BE(5)(a) and (b) were not met”. The delegate noted the objectors’ submission
that the onus is on the Taungurung claim group and the State to demonstrate that ‘all reasonable efforts’ were made to identify persons who hold or may hold native title in the agreement area. There have been other similar assertions.
(Footnotes omitted.)
On the basis of the authorities cited above, the delegate rejected this submission and confirmed her view that “the test at s 24CK(2)(c) directs the Registrar specifically to paragraphs 203BE(5)(a) and (b) and their substantive provisions”.
The delegate then turned to consider whether there was valid certification as required by s 203BE(5). At [48], the delegate set out a detailed summary of the assertions made by objectors challenging the validity of the certification. Many concerned the application of the decision in Quall FCAFC. At [49] the delegate set out a summary of the State and the TLWC’s alternative contentions. The delegate concluded at [50]-[51]:
Following the Full Federal Court’s decision in Quall, the validity of the certification of the agreement has been brought to my attention. However, the subsequent decision of the Full Court in Kemppi FC has confirmed that when an objection to the registration of an agreement as an ILUA is made, the task before the Registrar is to consider afresh whether the requirement of s 203BE(5)(a) and (b) have been satisfied. The task is not to review the certification generally. In particular, the Full Court stated:
The validity or correctness of the certificate that QSNTS [the relevant representative body] gave under s 203BE(5) and (6) was not a statutory condition of the Registrar’s power and duty to register the Adani ILUA if, as occurred here, there was an objection under s 24CI. That is because in such a case, s 24CK(2)(c) required the delegate to consider whether “in relation to the certification”, she was satisfied that the requirements of s 203BE(5)(a) and (b) had not been met. In other words, the Registrar, under s 24CK(2)(c), is not considering the opinion of the representative body, but only whether he or she is satisfied that the requirements of each of pars (a) and (b) in s 203BE(5) have not been met.
Accordingly, I do not consider it my task to determine the validity of the certification.
The delegate then considered each of the elements of s 203BE(5)(a) and (b) and asked whether the objectors had satisfied her that the requirements of those paragraphs were in fact not met. Not all of the objections made are relevant to the grounds of review in this proceeding.
Sub-s 203BE(5)(a)
Relevantly, the delegate summarised the objectors’ submissions (referring to them as the “Holding Redlich objectors”) at [69]. The delegate set out in some detail the objectors’ claims to hold native title in the area, and their claims that the TLWC and First Nations Legal failed to make reasonable efforts to ensure that all persons who hold or may hold native title in the agreement area were identified. The delegate’s summary was:
•First Nations’ database does not distinguish persons identifying themselves as Taungurung or Ngurai Illum. The objectors and their family members attended the authorisation meeting with proxies from 186 people who were descendants of the Taungurung apical ancestors and who were unable to attend in person. Following the motion to accept the proxies being defeated, First Nations took no steps to make enquiries with the 186 people who wished to be involved in the agreement making process. By restricting the agreement making process to approximately 150 people on its database, First Nations prevented others who hold or may hold native title from being identified.
•Ms Thorpe, Mr Peters and Ms Layton, and their families, were not contacted by First Nations and did not see any notice of the authorisation meeting. Mr Peters and Ms Layton’s attempts to engage with First Nations about the Taungurung claim, such as their research of inclusion of apical ancestors, have been disregarded, and after hearing of the meeting from a third party, Ms Layton attempted to contact representatives of the Taungurung claim group who refused to engage with her.
•The notices given of meetings were not published in a way which reached interested parties and did not alert the Ngurai Illum that the proposed agreement applied to them.
At [70] the delegate set out First Nations Legal’s response to these objections:
•The contention that First Nations’ database did not distinguish between people identifying as Taungurung and Ngurai Illum is irrelevant. The particulars of their identity or purported membership of a particular group is not a requirement of the Act.
•Contrasting the number of proxies collected as opposed to the number of people on the database does not indicate whether ‘reasonable efforts’ were made to identify native title holders as the database was not the only basis through which First Nations sought to comply with s 203BE(5)(a). The meeting was publically advertised in relevant newspapers to reach potential native title holders beyond the database.
•The database has been developed through a period of research, from which approximately 150 entrants were identified, with most having a long association with the Taungurung group. Approximately 100 people attended the authorisation meeting, who were required to go through a registration process identifying their lines of descent before they could enter. This was done with the assistance of First Nations research staff and with reference to a genealogical register, and where any dispute or uncertainty arose, other Taungurung people were on hand to assist and verify lines of connection.
•The identity of those who purportedly provided proxies have not been provided and no explanation has been provided how their identity or descent were verified or could be verified, or how they are reasonably considered to hold or may hold native title rights. The objection provides no details beyond descent from an apical ancestor, when traditional owner groups (including the Taungurung) commonly require more than blood descent to retain rights and interests over a particular area. Those persons have also not separately made objections.
•The proxies may provide some probative value as to the efforts made to identify native holders. The objectors made considerable efforts to identify native title holders by:
•Contacting at least 186 people who they considered may hold native title rights, advising them of the meeting, and then obtaining their proxy if they declined to attend;
•Actively promoted the meeting on Facebook, and encouraged attendance in support of their position opposing the recognition and settlement agreement; and
•Arranged for the hire of a coach to drive from Melbourne to the location of the authorisation meeting (with funding provided by First Nations).
•These efforts did not result in the attendance of substantial numbers of native title holders who supported their position but did increase the awareness of potential native title holders, giving them the opportunity to participate. This contradicts the assertions that the authorisation meeting was improperly notified or that it proceeded without the knowledge of a large group of native title holders. First Nations was entitled to take these efforts into account when assessing if ‘all reasonable efforts’ had been made, although the efforts of the objectors are legally insignificant compared with the efforts of TLWC ensuring notice was provided to its approximately 300 members.
•It was unlikely that there was any reasonable expectation the proxies would be accepted, making attendance in person was necessary, as the reliance on the proxies was not advised until 4:48pm the afternoon prior to the authorisation meeting. To First Nations’ knowledge, proxies have never been accepted in any meeting dealing with rights and interests, and in any event ILUAs must be authorised using a decision making process under s 251A. The map in the public notice showed that the proposed agreement area overlaps the area claimed by the Ngurai Illum by about 30 – 40%, making it apparent that the proposed agreement may impact upon those interests asserted by the objectors on behalf of the Ngurai Illum. In addition, it is clear that each of the objectors were subjectively so aware.
•Ms Thorpe, Mr Peters and Ms Layton were all aware of the authorisation meeting, and attended and participated, despite not being on the database or seeing the public notifications. Mr Peters also attended several information sessions held before the authorisation meeting, and with Ms Thorpe, he met with Taungurung representatives, the lawyer with carriage of the matter, and the principal researcher on 12 October 2018 at First Nations’ offices. Ms Thorpe and Ms Layton also actively participated in the decision making process at the authorisation meeting, although they opposed the decision that was made.
•First Nations, the Taungurung, and others made significant efforts over many years, which included research and open full group meetings, the public notification and objection process under the Settlement Act, public and personal notification of the authorisation meeting, and efforts of the objectors to notify 186 people directly and on social media. This contributed to the widespread knowledge of the proposed ILUA, and the ability of people who hold or may hold native title to participate in the authorisation process.
At [71] the delegate set out the State’s response to the objections, which noted that the State had also made an attempt to contact Ms Gardiner and Mr Murray, through letters sent to them as individuals and also to Dhudhuroa Waywurru Aboriginal Corporation (of which Mr Murray is Chairperson).
At [72] the delegate summarised the objectors’ responses to the submissions by the First Nations Legal and the State. The objectors’ response relevantly included contentions that:
(a)the Registrar should require the Part A Threshold Statement and First Nations Legal’s database to be produced to them.
(b)that the ILUA should be distinguished from those considered in Bright and Kemppi FC because the area of land in question is significantly larger, and so the standard for “all reasonable efforts” ought to be higher.
(c)the status of the objectors as representatives of their families and groups was important, and that inferences of opposition to the ILUA could be drawn from the existence of the 186 attempted proxy votes.
(d)the onus was on those seeking registration of the ILUA to demonstrate that all reasonable efforts were made to identify native title holders.
After setting out the submissions regarding further objections by individuals not involved in this proceeding, the delegate considered whether, in light of the objections, the requirement that “all reasonable efforts” be made to identify people who hold or may hold native title had been satisfied. Relying on the reasons of White J in Bright, the delegate found that whether the criterion was satisfied was a question of fact, to be determined by reference to the circumstances. Citing QGC Pty Ltd v Bygrave (No 3) [2011] FCA 1457; 199 FCR 94 the delegate stated (at [82]):
the expression ‘persons who hold or may hold native title’ in s 24CG(3)(b)(i) is directed ‘to all of the different sets of native title rights and interests that may be held in the area covered by the agreement’ and may refer to those rights and interests that have been recognised formally and those that have no formal recognition. This can include persons who ‘by any means makes a claim to hold native title’. His Honour considered that the expression ‘in s 24CG(3)(b)(i) is to be construed expansively and inclusively’ however it must be ‘reasonable to conclude that person, group, or community holds native title, in any part of the area covered by the agreement [emphasis added]’.
Having considered other authorities on the interpretation of s 203BE(5)(a), the delegate concluded at [85]:
In light of the above, I understand the requirement is that ‘all reasonable efforts have been made’, which directs s 203BE(5)(a) to the efforts made and whether they can be considered reasonable in the circumstances. I am not required to consider whether all potential native title holders have been identified or whether I agree with the views formed by the representative body about ‘all persons who hold or may hold native title’ in relation to the land and waters covered by the agreement area. Rather, it is whether the material shows that those views were shaped as a consequence of reasonable efforts. To satisfy me that all reasonable efforts have not been made would require the objectors to show that the efforts to ensure all persons who hold or may hold native title in the area have been identified were wanting such that the efforts and subsequent views cannot be said to be reasonably based.
At [86]-[99] of her reasons, the delegate applied this understanding of the test to the circumstances before her. This included her response regarding the objectors’ request that the Part A Threshold Statement be made available to them, as discussed above. The delegate noted that First Nations Legal had undertaken “substantial anthropological, archival, historical and genealogical research” into “consideration of the composition of the landowning group and the apical ancestors of the group” (at [86]). She found that this process included:
(a)a detailed notification and consultation process under the TOS Act, including contacting various aboriginal and traditional owner entities by letter;
(b)notification of the authorisation meeting in five newspapers; and
(c)requiring that the people who attended the authorisation meeting undergo a registration process before attending, identifying their lines of descent.
The delegate then found (at [96]-[99]:
It is also asserted that some of the objectors were not given an opportunity to decide whether to be included in the Taungurung claim and to engage in any research undertaken by First Nations. I consider that opportunities were provided during the Settlement Act process where the objectors or the bodies that represent their interests were invited to participate, and have their submissions considered and investigated. The objectors were also given an opportunity to engage by attending meetings of the Taungurung, including the authorisation meeting.
On the basis of the efforts outlined above, First Nations formed the view that ‘all persons who hold or may hold native title’ in relation to the agreement area include members of the Taungurung People.
In the circumstances here, the claims to hold native title over the area were the subject of reasonable and comprehensive enquiries by First Nations which resulted in that body identifying the Taungurung People. The persons who therefore needed to be identified for the purpose of authorising the agreement were the Taungurung People. The objectors have therefore not satisfied me that all reasonable efforts were not made by First Nations in the circumstances here.
It follows that the objectors have not satisfied me that the requirements of paragraph 203BE(5)(a) were not satisfied.
Sub-s 203BE(5)(b)
The delegate then asked herself if the objectors had shown that the requirements of s 203BE(5)(b) were not satisfied.
Section 203BE(5)(b) requires that the persons identified under s 203BE(5)(a) authorised the making of the agreement. At [102], the delegate extracted the relevant statements from First Nations Legal’s certificate:
All the persons so identified have authorised the making of the agreement: 203BE(5)(b)
17.During negotiations with the State of Victoria, First Nations sent updates to the people listed on the Database for the Taungurung native title claim group, and presented at meetings of the native title group, in relation to the progress of those negotiations (particularly during 2017 and 2018, leading up to finalisation of negotiations).
18.First Nations also arranged five information sessions during the month prior to the authorisation meeting to provide an opportunity for the people who hold, or may hold, native title in the proposed Taungurung ILUA area to learn about the proposed settlement package (including the terms of the Taungurung ILUA) and to ask questions. Details of the information sessions were contained in the same notice in which the authorisation meeting was notified on 24 September 2018, and again in the reminder notices of 3 October 2018, and 11 October 2018.
19.In addition First Nations produced a forty-eight page plain-English guide to the proposed settlement. A copy of this document was sent to every person on the Database along with the reminder notification sent 3 October 2018, and further copies were available at the information sessions and the authorisation meeting.
20.First Nations also produced a further six page plain-English short-form guide to the settlement. A copy of this document was sent to every person on the Database along with the reminder notification sent 11 October 2018, and further copies were available at the remaining information session and the authorisation meeting.
21.First Nations staff arranged, attended and presented at the authorisation meeting held on 20 October 2018 in Rubicon for entry into the Taungurung ILUA and other agreements.
22.First Nations offered reasonable travel assistance for people to attend the meeting.
23.Those in attendance at the authorisation meeting resolved to employ an agreed and adopted decision making process to authorise entry into the Taungurung ILUA and other agreements.
24.The Taungurung ILUA and other agreements were authorised in accordance with the agreed and adopted decision making process, including a direction to the Taungurung Signatories to execute the Taungurung ILUA.
The delegate then summarised the objectors’ contentions, including, from [104], the contentions of the applicants:
In the objection of 20 June 2019, the following assertions are made:
•There was a defect in the authorisation of the agreement by TLWC, which is currently the subject of proceedings before the Supreme Court of Victoria.
•It was incorrectly decided at meetings on 14 July 2012 and 10 August 2013 that the Ngurai Illum should be treated as a subgroup of the Taungurung and their ancestors, including Tooterie, be added as Taungurung ancestors. Tooterie previously was not considered a Taungurung ancestor.
•The proposed recognition and settlement agreement, together with the proposed ILUA, provided that the Taungurung People consist of persons descended from 12 apical ancestors, including Tooterie, associated with Taungurung country.
•The draft minutes from the 20 October 2018 authorisation meeting record the following:
•Verification of attendees entitled to participate in the authorisation meeting as descendants of the 12 apical ancestors checked against a genealogy (item 6);
•Adoption of an agreed decision making process (resolution 2);
•Removal of Tooterie as an apical ancestor (resolution 10);
•Authorisation of the making of the ILUA and the recognition and settlement agreement, and of an application to have the ILUA registered under the Act (resolution 13);
•Authorisation of TCAC to be the traditional owner group entity, on behalf of persons who hold or may hold native title in the area, for the purposes of managing benefits under the ILUA and Settlement Act, and to formally enter into the agreements (resolution 15).
•The minutes record that no action was taken to limit authorisation to the descendants of the remaining 11 apical ancestors or to reduce the agreement area by Tooterie’s country.
•Accordingly, there was not a single group, as required under the Settlement Act, in relation to who may authorise the ILUA under s 251A of the Act. Therefore, there was not, within the meaning in s 251A, a single authorising decision as purported to occur at the authorisation meeting, binding both the Taungurung and Ngurai Illum.
•Alternatively, those in the reconstituted Taungurung group descended from 11 apical ancestors could not comprise all the persons who hold or may hold native title in the area who may authorise the making of an ILUA under s 251A. If Tooterie descendants are not persons who hold or may hold native title in the area, then authorisation of the ILUA was purportedly given by persons other than those who hold or may hold native title.
•A number of the objectors have been aware of the Taungurung agreement making process for some time. They have attempted to engage with the Taungurung to voice their objections, however, First Nations has not facilitated that process and the Taungurung has rejected the objections. Since at least 2011, a number of the objectors have attempted to raise their objections to the boundaries of the agreement area and/or inclusion of their ancestors as Taungurung ancestors, including by attending Taungurung full group meetings or through the Settlement Act process, but such concerns have been met with hostility and/or disregarded.
•Since October 2017, Holding Redlich has corresponded with the Department of Justice and Regulation, First Nations, the Hon Martin Pakula MP (then Victorian Attorney-General), the Victorian Government Solicitor’s Office and the Hon Jill Hennessy MP (Victorian Attorney-General) to express the objectors’ concerns about the agreement making process. The overwhelming response has been that they are ‘too late’ to raise concerns. Further, the objectors have also been denied access to documents and information that would enable them to better understand the process that has occurred to date.
•At the authorisation meeting, the majority of people who identify as Ngurai Illum (whether as an independent group or as a Taungurung clan) supported the motion to remove Ngurai Illum land and ancestors from the Taungurung claim, however, the motion was defeated on the basis of votes from the broader Taungurung claim group.
•The objectors who attended the authorisation meeting and were not directed to leave, requested that the Chair, accept proxies from 186 traditional owners. The proxy forms were divided into groups based on relevant apical ancestors. Following a letter from Holding Redlich to First Nations dated 19 October 2018, Taungurung were on notice that proxies would be brought by the objectors. All proxies authorised the holder to vote against the authorisation, but a motion to accept the proxies was defeated. No action was taken to notify the persons giving proxies of the recognition and settlement agreement and Taungurung ILUA before or after it had been authorised by the persons present.
•The notice invited all persons who hold or may hold native title in the land and waters shown in the map and Mr Murray attended the authorisation meeting on the basis that the map showed an area of land including Dhudhuroa country. Mr Murray was excluded from the meeting on the basis that, as a Dhudhuroa person, he did not have standing to vote in a Taungurung meeting, and he was therefore prevented, as a person who holds or may hold native title in the area, from participating in the authorisation process.
(Footnotes omitted.)
The delegate then summarised First Nations Legal’s response at [105]:
•The objectors’ comments about authorisation under s 251A where there are two groups is understood to be based on the decision in Kemp v Native Title Registrar [2006] FCA 939, where it was held that there must be separate processes for each group, and that each group must make a separate authorisation decision.
•From research undertaken since 1997 in relation to the traditional ownership of the agreement area and in support of Taungurung’s negotiations under the Settlement Act, the Ngurai Illum is understood as a clan or subgroup within Taungurung, and not an independent or separate traditional owner group. Attachment B is a brief research paper supporting this. First Nations requested, including prior to the authorisation meeting, that the objectors provide any evidence or reasoning in support of their view but they have not done so.
•Tooterie was an Aboriginal woman associated with the agreement area, who was born into the Ngurai Illum. She married into the Wurundjeri-Woi Wurrung and all her known descendants identify as Wurundjeri-Woi Wurrung. One of the objectors, Ms Xiberras, attended the authorisation meeting and challenged the inclusion of Tooterie as a Taungurung ancestor. In her view, Tooterie was more correctly identified as a Wurundjeri-Woi Wurrung ancestor. Given no known person was expressing a Taungurung identity solely on descent from Tooterie, and her inclusion may cause offence to Ms Xiberras and other Wurundjeri-Woi Wurrung people, the resolution to remove Tooterie was strongly supported. This action did not bring into existence some second native title group at the authorisation meeting. Tooterie was not removed based on her Ngurai Illum characteristics, and there are several other Ngurai Illum ancestors who remain as Taungurung apical ancestors.
•No resolution was made to exclude Tooterie’s descendants from continued participation in the meeting as no such resolution was put to the floor and considered by the meeting. The meeting also had no cause to consider whether by including Tooterie’s descendants, authorisation was given by non-native title holders, as the only two participants asserting descent solely through Tooterie (being Ms Xiberras and her brother) voluntarily left on the basis of no further interest or business in the meeting following removal of Tooterie.
•The minutes of the meeting on 14 July 2012 show that the Taungurung did not ‘decide’ to include Ngurai Illum at that meeting, and were not of the view that Ngurai Illum were a Taungurung clan prior to the meeting. Instead, in response to objections raised by Ms Gardiner, the Taungurung established a working group to examine the issue and to seek mediation with Ms Gardiner. After several attempts to arrange a mediation, those purporting to represent Ngurai Illum stopped returning calls and mediation could not proceed. On advice of the working group, having considered Taungurung oral tradition that Ngurai Illum was a Taungurung clan, the fact they spoke the same language, and those purporting a separate Ngurai Illum identity were not engaging, the full group resolved to ‘confirm’ Ngurai Illum as a Taungurung clan and to continue attempts to meet with those asserting a separate identity.
•Tooterie was added as a Taungurung apical ancestor at a subsequent meeting on 10 August 2013. Given native title rights are common or group rights held by a collective traditional owner group or society, the Taungurung claim to Ngurai Illum lands was not reliant on the inclusion of Tooterie or any individual apical ancestor, and did not mean that the agreement area was expanded nor did it provide any benefit to the existing Taungurung members. The sole effect was to make the group more expansive and inclusive, giving those descendants a pathway to enjoy native title rights on Taungurung country. This remained the position until Ms Xiberras, on behalf of her Wurundjeri-Woi Wurrung people, requested at the authorisation meeting that Tooterie be removed.
•First Nations refute the assertions it had not facilitated engagement between the objectors and the Taungurung, or that the Taungurung have met these concerns with hostility.
•Each objector asserting a Ngurai Illum identity participated in the authorisation process.
•Section 251A, and the Act in general, do not provide any right to proxies.
•Mr Murray was not permitted entry because he is not a descendant of an ancestor associated with the ILUA area, is not accepted by the wider Taungurung group as a native title holder, and research indicates he is not someone who may reasonably be considered to hold native title within the ILUA area. Mr Murray claims his traditional owner group, identified as Dhudhuroa, has native title interests in the east of the agreement area. However, he has never provided the basis for this claim, and the objection remains silent beyond his own assertion.
(Footnotes omitted.)
At [106] the delegate set out the State’s response to the objectors:
•The existence of the Supreme Court of Victoria proceeding does not assist the Registrar to be satisfied that the requirements of s 203BE(5)(a) and (b) have not been met.
•The Taungurung people see themselves as comprised of a number of clans with similar dialects and as part of a broader Kulin alliance. Some members identify with a particular area or clan and others identify with the group’s country as a whole.
•As a result of oral history, a common language and a lack of engagement on the issue from those who may assert a separate identity for the Ngurai Illum, it was resolved at a Taungurung group meeting on 14 July 2012 that the Ngurai-Illum is a Taungurung clan.
•Country associated with the Ngurai Illum therefore formed part of the proposed agreement area. Tooterie was not identified as an apical ancestor at that point and she was not a reason for the inclusion of the Ngurai Illum as a Taungurung clan.
•During the Settlement Act process, the State received anthropological and historical information from NTSV on behalf of the Taungurung, which concluded that the Ngurai Illum and the Taungurung had common language, laws and customs. The State considered this information and accepted that it was reasonable to include country associated with the Ngurai Illum in the proposed ILUA area.
•The inclusion of Ngurai Illum country was not reliant on the identification of Tooterie as a Taungurung apical ancestor.
•Before receiving the Threshold Statement, the State had material from the Taungurung which did not include Tooterie as an identified apical ancestor. The Taungurung resolved to add Tooterie at a full group meeting on 10 August 2013. When the Threshold Statement was received, one of the people regarded by the Taungurung as an ancestor was Tooterie. The State accepted that the Threshold Statement provided sufficient evidence to support a group description that included Tooterie, and that known descendants of Tooterie identified as Wurundjeri.
•In 2014, as part of the Settlement Act process, the State published the Summary Threshold Statement and invited submissions. Some of the submissions raised concerns about the inclusion of Tooterie as a Taungurung ancestor. The Taungurung, represented by NTSV, provided the State with a response addressing in detail submissions which had raised, among other matters, concerns about the inclusion of Tooterie. After considering the submissions and any responses to them, the State formed the view that who was regarded as a Taungurung ancestor was largely a matter for the Taungurung. The State was content that the inclusion or exclusion of Tooterie was a matter of ongoing consideration by the Taungurung and could be subject to change in the future. The State remained of the view, after becoming aware of the removal of Tooterie as an apical ancestor at the authorisation meeting, that this was a matter for the Taungurung as part of defining and redefining group membership over time.
•The exclusion of Tooterie did not change who was a member of the Taungurung group as no person in the group claimed descent only from Tooterie.
•In relation to the proxies provided, Kemppi FC provides that s 203BE(5)(b) will be satisfied if all those who hold or may hold native title are given a reasonable opportunity to attend the authorisation meeting.
(Footnotes omitted.)
At [107], the delegate set out the objectors’ response to what was put by both First Nations Legal and the State:
•The objectors and their families did not take part in the research undertaken in support of the Taungurung claim and therefore the research has not been subjected to outside scrutiny.
•First Nations failed to properly represent the interests of people from the Ngurai Illum, Waywurru and Dhudhuroa nations and were not receptive to attempts made by the objectors to put forward a contrary position.
•Even if representatives of the Ngurai Illum stopped returning calls, First Nations were obligated to assist all Aboriginal Victorians to ensure that the interests of Ngurai Illum, Waywurru and Dhudhuroa descendants were effectively represented.
•The Victorian Aboriginal Corporation for Languages produced a map of Victorian Aboriginal languages displaying Ngurai Illum as a separate language group to Taungurung.
•There is no evidence that First Nations facilitated engagement between the objectors and the Taungurung or that the Taungurung did not meet the objectors’ concerns with hostility.
•The Ngurai Illum had no opportunity to opt in or out of the Taungurung claim other than by attending the authorisation meeting where, although more Ngurai Illum sought to vote against authorisation, they were outnumbered by other Taungurung members.
•Mr Murray asserts that the Taungurung claim group has not established any connection between the Taungurung apical ancestors and the Ovens Valley area in the region of Bright and the surrounding areas. The Dhudhuroa claim to the contested area around Bright is based on evidence that a Dhudhuroa ancestor Jilbino lived in that area.
•Mr Murray does not alone have the obligation to establish the basis for the Dhudhuroa claim over the disputed area. First Nations has not offered to assist Mr Murray to engage an anthropologist to review his own research. Any failure to provide the basis of his claim cannot justify the Taungurung claim into the disputed area without any external scrutiny.
•First Nations has not produced evidence to show that the Taungurung apical ancestors had any connection with the land in question, disputed that the Dhudhuroa apical ancestor Jilbino had a connection with the land in question, or attempted to trace the descendants of Jilbino for the purposes of discharging their ‘all reasonable efforts’ obligations.
•Given the facts are disputed and the outcome has such a profound impact on the objectors, their families and future generations, all parties should be required to submit evidence to enable the Registrar to make findings of fact before exercising her statutory powers.
From [110]-[113] the delegate considered the proper construction of the phrase “all the persons” in s 203BE(5)(b). Relying on the Full Court’s finding in McGlade v South West Aboriginal Land & Sea Corporation (No 2) [2019] FCAFC 238; 374 ALR 329, the delegate concluded that “all the persons” is a reference to the persons identified in s 203BE(5)(a). The delegate found these persons to be the Taungurung People. Therefore, the delegate reasoned, the persons who must have authorised the making of the ILUA are those identified as Taungurung People.
From [114]-[119] the delegate assessed the applicable decision making process under s 251A. She stated that s 251A “provides for an ILUA to be authorised using a traditional decision making process, or an agreed to and adopted process”. At [115]-[116] the delegate noted that the certificate states, and draft minutes of the authorisation meeting record, that the ILUA was authorised in accordance was an agreed and adopted decision making process. The delegate continued:
I note there is information before me that indicates that there has been research undertaken in relation to the identification of the decision making processes. In my view, there is no information which disputes that an agreed and adopted process should not have been used and that there instead exists a traditional decision making process under s 251A.
(Footnotes omitted.)
The delegate then noted the objectors’ contention that
there should have been two decision making processes under s 251A used in relation to the authorisation of the making of the ILUA as there were two distinct groups present, namely the Ngurai Illum and the Taungurung.
The delegate rejected this contention and instead accepted the submissions of First Nations Legal and the State that Ngurai Illum Wurrung is a subgroup or clan of the Taungurung, a position she found was supported by “a brief research paper”. This was a paper entitled “NTSV Ngurai-illam-wurung/Taungurung Research Position Paper”, and states it was prepared by three people: one identified as a “senior anthropologist” and two identified as “research historians”. The paper describes its purpose in the following terms:
This position paper is in response to issues raised by the Department of Justice (DOJ) in relation to the status of the Ngurai-illam-wurrung as portrayed in the Threshold Statement of the Taungurung people (supported by the NTSV) under the Traditional Owner Settlement Act (TOSA).
Relying in part on this research paper, the delegate concluded that the process agreed to and adopted by those who identified as Taungurung People was sufficient.
From [120]-[142], the delegate considered whether the Taungurung People had in fact authorised the making of the ILUA in accordance with the agreed to and adopted process. Having reviewed the authorities which deal with s 251A and s 251B, the delegate found:
(a)that a reasonable opportunity must be given to participate in the adoption of the particular process and the making of decisions pursuant to that process (at [121]-[123]);
(b)that where a reasonable opportunity was given to participate, it could be inferred that those who did not participate chose not to be involved in the making of the decision (at [125]-[126]); and
(c)that it is therefore not necessary for all native title claimants or holders to participate in the authorisation process. Citing McGlade (No 2), she found that the authorisation process “should not be scrutinised in an overly technical or pedantic way” (at [127]-[128]).
The delegate at [129] identified the objectors’ contentions that
some of the objectors appear to assert that a reasonable opportunity was not given as they were not identified and therefore not invited or consulted, and therefore their people have not given free, prior and informed consent to the Taungurung ILUA. In addition, Mr Murray says he was excluded from the authorisation meeting and therefore not given an opportunity to participate. There are also assertions that the 186 proxies provided were not taken into consideration.
However the delegate found that, given the steps taken by First Nations Legal, the objectors had not satisfied her “that a reasonable opportunity was not afforded ‘to participate in the adoption of a particular process and the making of decisions pursuant to that process’”: at [134].
Finally, the delegate turned to the conduct of the meeting and the process of authorisation of the agreement. At [136]-[137] the delegate found:
I consider the decision of Ward v Northern Territory [2002] FCA 171 (Ward) to be relevant to my consideration in relation to the conduct at the authorisation meeting. In Ward, O’Loughlin J identified deficiencies in the information provided in that matter regarding the authorisation process and listed a number of questions which in substance were required to be addressed. The questions identified by O’Loughlin J, which do not need to be answered in any formal way, are:
Who convened it and why was it convened? To whom was notice given and why was it given? What was the agenda for the meeting? Who attended the meeting? What was the authority of those who attended? Who chaired the meeting or otherwise controlled the proceedings of the meeting? By what right did that person have control of the meeting? Was there a list of attendees compiled, and if so by whom and when? Was the list verified by a second person? What resolutions were passed or decisions made? Were they unanimous, and if not, what was the voting for and against a particular resolution? Were there any apologies recorded?
O’Loughlin J considered that it was only necessary for the substance of these questions to be addressed. In my view, the substance of those questions has been addressed in the material provided.
(Footnotes omitted.)
The delegate proceeded to answer, in broad terms, the questions posed by O’Loughlin J in Ward extracted above, based largely on information provided in the notice of the authorisation meeting, which is also before the Court. At [140] the delegate stated:
In my view, the conduct of the meeting was such that those present resolved to use the agreed and adopted decision making process, and, while the specific details of the process has not been provided, it is indicative that the actual process was participative and inclusive, allowing those present an opportunity to participate. For instance, the persons who were present were able to consider the proposed resolutions that were put to the floor, and participate by deciding whether or not to pass the resolutions. I also consider that the members of the Taungurung people voted in support of the resolutions to authorise the ILUA.
Accordingly, the delegate concluded that the first condition of s 24CK was met.
The second condition: s 24CK(3)
The second condition was dealt with briefly by the delegate, who found (at [144]-[148]):
The second condition for registration of an area agreement is contained in s 24CK(3), which provides:
The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement.
The requirements of this provision are to be considered at the time the Registrar proposes to register the agreement.
The geospatial end of notification overlap analysis does not identify any registered native title bodies corporate in relation to any area subject to the agreement. My own searches of the Tribunal’s databases confirm this.
I am satisfied that there are no registered native title bodies corporate in relation to the agreement area.
I find that the second condition of s 24CK is met.
This conclusion is not disputed by the applicants and is not subject to any ground of review.
APPLICATION FOR JUDICIAL REVIEW
The grounds of review
The application for judicial review contains seven grounds:
2.The decision and the reasons for decision involved the following error or errors of law:
2.1the Applicants were denied procedural fairness in being denied access to the Threshold Statement (reasons [94]).
2.2The Delegate erred in law in imposing the onus upon the Objectors. The Delegate correctly cited authority that her task was “to consider whether all reasonable efforts had been made to ensure that those who hold or may hold native title over [the agreement area] have been identified” (reasons [83]) but did not consider all the evidence relevant to that question and that the Delegate was bound to consider in making her decision. Instead, the Delegate placed an onus upon the Applicants to satisfy her “that all reasonable efforts have not been made would require the objectors to show that the efforts to ensure all persons who hold or may hold native title in the area have been identified were wanting such that the efforts and subsequent views cannot be said to be reasonably based” (reasons [85]). In so doing, she misconstrued what the notion of “onus” means in the law relating to administrative decisions and imposed on the Applicants a stringent requirement of disproof which was impermissible.
2.3The Delegate asked herself the wrong questions, by accepting as determinative, the reliance of First Nations for its notification and certification functions upon its Database of more than 150 people (reasons [88], and [94], and notice being sent to only to those people (reasons [130] and [131]) in circumstances where, in accordance with the relevant provisions of the Act, the correct question on which the Delegate had to be satisfied was whether “all reasonable efforts” were made to notify to all persons who hold or may hold Native Title. There was a live and central factual issue that was required to be determined by the Delegate as to whether there were a group or groups of indigenous people not on the Database but who reasonably claimed to hold native tile rights and interests over parts for the area the subject of the ILUA that had been ignored or overlooked in the authorisation process. The Delegate failed to engage this issue or determine it.
2.4The Delegate erred in accepting the submissions of First Nations as to research into the composition of the landowning group and the apical ancestors of the group (reasons [86] and [87]) as determinative of whether a broader definition that of “all persons who hold or may hold Native Title” was the correct enquiry. That enquiry was required to be conducted on the basis of evidence which was not put before the Delegate and on which the Applicants were given no opportunity (as procedural fairness required) to address in their submissions.
2.5The Delegate erred in categorising the Applicants’ Affidavit evidence as “assertions” when that evidence was “sworn evidence” and was not challenged (reasons [69]). That Affidavit evidence was directly relevant to the identity of the 180 people who had provided proxies (Gardiner Affidavit [23], [32]), Peters Affidavit [42], Thorpe Affidavit [26]) the validity of some of the identified Ancestors and their acknowledged areas of country (Gardiner Affidavit [20] , Peters Affidavit [36], [37], [52], [54], [55], Thorpe [5], [12], [19] ) the deficiencies of the notice process for the Authorisation meeting (Peters Affidavit [31], [41], [46] Gardiner Affidavit [29], Thorpe Affidavit [14], [24], [39]. By reason of the approach to those affidavits taken by the Delegate she failed to take the information contained in them into account in any realistic sense, as she was bound to do.
2.6 The Delegate erred in accepting submissions from First Nations as to the conduct of the authorisation meeting without any or any reliable evidence noting that “specific details of the process has not been provided” (reasons [140]) and not taking into account as relevant considerations the Affidavit evidence of the Applicants with respect to that process.
2.7 The Delegate’s decision was also both unreasonable and irrational.
(Footnotes omitted.)
The applicants’ submissions in summary
A recurring theme of the applicants’ submissions is that First Nations Legal has failed to consider and represent them as persons who may hold separate native title from the Taungurung over parts of the area covered by the ILUA, and that this failure was not appropriately addressed by the delegate in the registration process.
In their written submissions from [7]-[11], the applicants set out the role of First Nations Legal as a representative body under the Act, by reference to the decisions in Kemppi and Quall FCAFC. They then summarise their contentions (as I understand they contend they put to the Registrar) as to their claimed native title in the area central to the dispute at [12]:
a)Taungurung country is on the Upper Goulburn, upstream from Seymour, including the towns of Alexandra, Yea, Mansfield, Seymour and Broadford;
b)Ngurai Illum Wurrung country is known as the Middle Goulburn, that is the country to the north and west of Seymour extending west to the Campaspe River and Murchison, and north to about Mooroopna;
c)Waywurru country is around Wangaratta on the Ovens River and Dhudhuroa land is an area on the Ovens River, upstream from Myrtleford.
As I have explained, with the exception of Mr Murray, each of the applicants identifies as Ngurai Illum Wurrung or Waywurru, or both. These are not the only traditional descent connections each of them claim, but they are the relevant ones for the purposes of this proceeding. A significant proportion of the applicants’ submissions summarise and emphasise the contents of some affidavits prepared and filed in the Supreme Court proceedings, but which were also sent to the Registrar as part of the applicants’ material upon which their objections were based. These affidavits are expressly relevant to ground 5 of the application, but I have formed the view they are of considerable importance to several grounds of review, and were of considerable importance to the delegate’s task. The affidavits are all affirmed or sworn on 22 November 2019 and the deponents are Mr Murray, Ms Thorpe, Mr Peters and Ms Xibberas.
A difficulty with the structure of the applicants’ submissions is that it was at times unclear which ground of review a particular submission was directed to. It has been something of a challenge to adequately summarise the way the applicants put their arguments on each ground. It does appear there were minimal written submissions on some of the grounds of review.
Ground 1: denial of procedural fairness
The applicants accept they had a copy of the summary of the Part A Threshold Statement. However they contend that was insufficient. They contend the materiality of the Part A Threshold Statement can be seen from the fact that the First Nations Legal submissions with respect to “all reasonable efforts” relied upon the TOS Act processes, and also that the State submissions to the delegate relied upon its processes under the TOS Act. Integral to those processes, the applicants contend, was the Part A Threshold Statement.
The applicants contend the respondents should concede that the differences between the Part A Threshold Statement and the public summary document are significant. They rely on the reasons for judgment of Richards J in Gardiner VSC at [32]-[37] , where her Honour found at [37]:
It is apparent from the Attorney-General’s reasons and Mr Cowie’s affidavit that resolution of the plaintiffs’ Charter claim will be assisted by information contained in the Statement. In particular, the research findings required to be included in item A5 of the Statement appear to have informed the Attorney-General’s decision to enter into the RSA with the Taungurung, notwithstanding the asserted interests of the Ngurai Illum Wurrung and the Waywurru in parts of the RSA area.
The Supreme Court proceeding is an application for judicial review of the Victorian Attorney-General’s decision to enter into the recognition and settlement agreement, under s 4 of the TOS Act. At [4], Richards J describes the proceeding thus:
[The applicants] do so based on a statement of reasons provided by former Attorney-General Martin Pakula, dated 28 February 2019. They seek declarations that the decision to enter into the RSA was unlawful and incompatible with their cultural rights protected by s 19(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). They also seek orders quashing the decision and compelling the Attorney-General to make a further decision according to law.
In that proceeding, the Attorney-General relies on an affidavit of Dean Cowie made on 30 July 2019, to which the applicants’ affidavits described at [69] above are in part responsive. Neither the Attorney’s reasons, nor Mr Cowie’s affidavit, are before the Court in this proceeding, nor were they before the Registrar’s delegate.
The applicants contend that the failure to provide the Part A Threshold Statement to them before the delegate’s decision meant they could not provide further evidence to the Registrar answering what was in the Part A Threshold Statement.
All these conclusions would have been readily open to the delegate had she actively engaged with the material. Such conclusions would have readily supported a conclusion that the objectors had discharged their onus under s 24CK(2). She would not have been bound to reach these conclusions, there were factual matters for the delegate to weigh. The point is that she did not engage in that process at all.
From [48], Mr Peters describes his experience of the Taungurung ILUA authorisation meeting. There was no responsive evidence available to the delegate from First Nations Legal, or from TLWC. The only the source material available to the delegate were the authorisation meeting minutes. While not irrelevant by any means to the first criterion, what happened at the authorisation meeting was, of course, critical, to the delegate’s task of considering whether she was persuaded by the objectors that the second criterion in s 203BE(5) had not been met – namely, that all those who had been identified through the efforts of First Nations Legal had authorised the making of the ILUA.
I discuss some aspects of Mr Peters’ evidence about what happened at the authorisation meeting below, in the section about Tooterie. However, other aspects of this account which the delegate should have engaged with in order to perform her task included (and these are no more than examples):
(1)At [48]:
I also spoke to Chris Marshall [who was chairing the meeting]. I asked Mr Marshall why the Taungurung had never responded to my inquiries. He said he did not know but commented that they (the Taungurung) were concerned at the lateness of my enquiries and information and they did not want to hold up their proceedings.
(2)Aggressive behaviour by another Taungurung group member towards Mr Murray, and then also towards Mr Peters, impeding (on his account) his ability to address the meeting (at [53]):
Because of her interjection, my message was drowned out and with the growing interjections of others I ran out of time to speak.
(3)Generally antagonistic and hostile behaviour from other Taungurung group members (at [54]):
Again we were asked by interjecting persons in the meeting whose names I do not know why we had not raised these matters previously and again they wouldn’t listen to me or people from our family who were trying to answer their question. We were accused of sabotaging the meeting.
These sorts of accounts should have given the delegate, if she had engaged with them, cause to carefully consider whether the conduct of the authorisation meeting was such that it nevertheless was appropriate to find, as she did at [140], that:
In my view, the conduct of the meeting was such that those present resolved to use the agreed and adopted decision making process, and, while the specific details of the process has not been provided, it is indicative that the actual process was participative and inclusive, allowing those present an opportunity to participate. For instance, the persons who were present were able to consider the proposed resolutions that were put to the floor, and participate by deciding whether or not to pass the resolutions. I also consider that the members of the Taungurung people voted in support of the resolutions to authorise the ILUA.
Thus, it is not correct the delegate had no “specific details”. She had very specific accounts by four people who attended. None of those accounts would have supported the findings she made. She otherwise only had the minutes. Had she engaged with the affidavits, it would have been well open to her to be persuaded that the meeting was conducted in a way which sought to silence and shout down any opposition to the ILUA.
Further aspects of Mr Peters’ evidence were directly contradictory of the view taken by the delegate about the Taungurung group definition in the ILUA, yet her reasons disclose no consideration of this evidence. At [94] of her reasons, the delegate found that:
I also note that First Nations has done extensive research into the composition of the Taungurung group, holds a genealogical register, and has also indicated that membership requires more than blood descent for a person to retain rights and interests over a particular area. I understand that those people on the database meet these criteria or have been verified through these means.
(Footnotes omitted.)
This passage contained a footnote to the definition of the Taungurung group in cl 1.1 of the ILUA. However, Mr Peters’ evidence of how he had been “accepted” indicated that first, the database was plainly incomplete, and second that the “more than blood descent” criteria were not being regularly applied in practice.
At [59(iii)], in response to Mr Cowie’s affidavit (which the delegate did not have and does not appear to have asked for), Mr Peters deposed:
For the purposes of paragraph (c), at no point prior to March 2018 was I aware that anyone associated with the Taungurung group recognised or accepted me, or members of my family, as a member of the Taungurung. To the extent that I have “been accepted” since March 2018, that acceptance only occurred following my meeting with the FNLRS anthropologists referred to above. Before that, all of my attempts to contact the Taungurung Group were rebuffed. Based on my correspondence with Ms Button, who also claims to be descended from Charles Tattambo, she does not accept who I am, that I am a Ngurai Illum Wurrung person or a descendent of Charles and Mary Tattambo. I also note that, to my knowledge, my connection with Charles Tattambo and Mary, has not been the subject of any consideration by “a panel of the Taungurung people appointed by the full group”.
Again, the delegate was not obliged to accept Mr Peters’ evidence. But she was required to engage with it. It was capable of demonstrating substantive failings in the process undertaken by First Nations Legal, in conjunction with those Taungurung identifying people who were directing the responses of the Taungurung group.
A further and separate issue raised by Mr Peters in his affidavit about the efforts made by First Nations Legal related to the way his ancestor Lizzie Davis came to be listed as an apical ancestor for the Taungurung. The issue has similarities with what I will describe as the “Tooterie issue”, which I discuss below. Mr Peters deposed (at [62], responsively to Mr Cowie’s affidavit):
I do not recognise any of the names of the people attending those [authorisation] meetings as descendants of Lizzie Davis (nee Hylett). I note, however, that Ms Button attended these meetings. I note, in particular, that the Taungurung Group meeting on 10 August 2013 resolved to include Lizzie Davis (nee Hylett) as an apical ancestor. In effect, what became an irreversible decision to include Lizzie Davis (nee Hylett) as an apical ancestor was made by 16 people – none of whom I understand to be descended of Lizzie Davis (nee Hylett).
On its face this evidence raises a serious question about the effectiveness of the process by which the apical ancestor list in the ILUA was constructed. That list is critical because it appeared to be common ground that rights and interests in land were acquired primarily by descent. Added to this were components of self-identification and “recognition”, about which I say more below. However there appeared to be no debate from First Nations Legal, the TLWC or the State that the primary pathway to identifying those who “may hold” native title was descent from ancestors who were said to be those who, at sovereignty (or effective sovereignty) held rights and interests in the ILUA area pursuant to traditional law and custom. That is unsurprising in a native title context.
Therefore, key to the decisions whether First Nations Legal had made reasonable efforts to identify all those who held native title in the ILUA area was the nomination of apical ancestors, and the assessment by First Nations Legal of the reasonableness of the basis for that nomination, bearing in mind (as I have repeatedly emphasised) that what was in question here was the holding of native title in the ILUA area – not cultural, historical or language associations.
The delegate has not engaged with this issue at all, despite it also being a matter of submission on behalf of the applicants, and despite the very same issue being raised about Tooterie, and the way in which her name came to be added as an apical ancestor and then removed at the last minute at the authorisation meeting.
At [64], Mr Peters emphatically rejected the allegation that the objectors such as himself were responsible for the lack of consultation, or the “lateness” of matters being raised in 2018:
Any lack of engagement was entirely a result of the neglect on the part of FNLRS and the Taungurung Group to identify descendants of Charles Tattambo and engage them in the process. For his part, Mr Cowie has neglected his obligation to ensure that a fair process had taken place.
And then at [65], he deposed:
I refer to paragraph 29 of Mr Cowie’s affidavit in which he refers to the State receiving anthropological and historical information that “concluded the Ngurai Illum and the Taungurung had common language, laws and customs”. In response I make the following points:
(i)Apart from my discussions with anthropologists engaged by FNLRS in 2018 I am not aware of any discussions between anthropologists retained by FNLRS and the descendants of Charles and Mary Tattambo.
(ii)I have had limited opportunity to read the material assembled by FNLRS, however, my reading of that limited released material shows that there are inconsistencies between that material and the material I have read in undertaking my own research.
(iii)Neither I, nor other members of my family, have the resources to engage anthropologists who could review the material assembled by FNLRS.
In relation to both these paragraphs, again the delegate was not required to accept them – either at face value, or in combination with other evidence and information. However these paragraphs, like the rest of the affidavit, did present a quite different account of the “efforts” made by First Nations Legal, and made rational and reasonableness points about them. They could not be dismissed without consideration, especially given the very unusual and particular circumstances of this ILUA, relating as it does to a group which has never made a claim for native title, and about which little research about the “at sovereignty” position, for the purposes of native title, had been undertaken.
To this should be added the fact that the response from Mr Cowie, as reproduced by Mr Peters, discloses the very conflation which I have identified in ground 3 as problematic in the delegate’s approach. Whether or not the Ngurai Illum Wurrung and the Taungurung “had common language, laws and customs”, they may still have held separate and distinct native titles in land and waters covered by the ILUA. One example of that is how the Noongar ILUAs considered in the two McGlade decisions had been agreed, as I have explained. All depends on the content of the traditional law and custom, and what normative rules it established about landholding, and the acquisition and passing on of rights and interests in land and waters. Certainly the existence of a “common language” (even if it was the case, which the objectors contested, on the basis of what can only be described as respectable anthropological and ethnographic opinion) may not be determinative of shared rights and interest in land. None of these matters, arising from the affidavits, were considered by the delegate.
It is not necessary to go through the other three affidavits in detail. Suffice to say their content is of the same nature, and at the same level of detail, although I note that the Ms Xibberas’ affidavit is somewhat shorter. Broadly, the four affidavits are consistent with each other, which only adds to their objective capacity to be persuasive and to assist the objectors in discharging the onus they bore under s 24CK(2).
The efforts of a representative body to identify all persons who may hold native title are unlikely properly to be described as “reasonable” efforts if they are inaccurate, incomplete, based on unsound research or if they represent an immovable position adopted by a representative body in the face of information which is credible and objectively worthy of further investigation, where detailed research and investigation has not otherwise occurred. The legislative scheme about ILUAs would fail miserably if that were the case. While the Court certainly makes no finding that those descriptions apply to the work of First Nations Legal in relation to the Taungurung ILUA, the point is that the objectors had presented detailed and credible sworn evidence of matters which went to both limbs of s 203BE, and with which the delegate did not actively engage, in a context where the only responsive material was at the level of generalised submissions (save for the one research paper given to the delegate).
The first respondent relied on what was said by the Full Court in McGlade (No 2) at [152]-[157]. I do not consider that assists the respondents on ground 5. The affidavits were clearly “information” put before the delegate by the objectors, and, for the reasons expressed above, that information is clearly “in relation to the matter” before the delegate. Those passages in McGlade (No 2) are making a different point: namely, that an allegation about objectors being “misled” was not a matter relevant to the Registrar’s task, and so outside the terms of s 24CK(4).
Ground 5 is upheld.
Ground 6: failure to properly consider conduct of authorisation meeting
This ground is expressed as follows:
The Delegate erred in accepting submissions from First Nations as to the conduct of the authorisation meeting without any or any reliable evidence noting that “specific details of the process has not been provided” (reasons [140]) and not taking into account as relevant considerations the Affidavit evidence of the Applicants with respect to that process.
This was another ground where it was somewhat difficult to follow how the submissions were developed to address this ground specifically, as opposed to repeating arguments relevant to other grounds, in particular arguments dealing with the delegate’s approach to the objectors’ affidavit material. As I have found above, the affidavit material did contain a lot of direct evidence, from persons present, about the conduct of the authorisation meeting, which was not answered by other first-hand accounts outside the Minutes.
However, in written submissions (at [72]), this ground was specifically directed at the treatment of Mr Murray. The applicants contended:
The Registrar in effect accepted the erroneous advice given to the authorisation meeting that only people who could establish a descendent connection was a person who holds, or may hold native title. Whilst First Nations may not agree with Mr Murray’s evidence that the Dhudhuroa country extends into the ILUA Area, that claim was sufficient to establish that he may hold native title and denying him the right to address the authorisation meeting on that issue is contrary to the test in Bygrave No 3.
I have extracted [140] of the delegate’s reasons above at [279]. This paragraph appears to be the focus of this ground. I have explained what I consider legally erroneous about [140] in relation to the objectors’ affidavits. These errors led the delegate’s task in evaluating the persuasiveness of the objectors’ information presented to her to miscarry.
However I do not consider the delegate’s reasons reveal any distinct error arising from an acceptance by her of the submissions put on behalf of First Nations Legal, and acceptance of what is recorded in the minutes of the meeting.
The contentions about the delegate’s approach to Mr Murray’s exclusion are, as the TLWC submitted (at [44]-[45]), outside the scope of the grounds of review, and certainly outside ground 6 as expressed. I do not consider them further. That is not to say, of course, that the errors I have upheld under grounds 3 and 5, are irrelevant to Mr Murray’s objection; indeed the contrary is the case. The delegate failed to engage with Mr Murray’s account (including why his exclusion from the authorisation meeting was an example of First Nations Legal failing to make reasonable efforts to identify all those persons who may hold native title in the ILUA area) just as much as she failed to engage with the accounts of the other objectors as given in their affidavits.
Ground 7: legal unreasonableness and irrationality
It is unnecessary to consider this ground in detail, since I have upheld grounds 3 and 5. Those errors are specific, but they do not amount to a legally unreasonable exercise of power by the delegate. Such characterisations are rare: see generally my reasons in DCU18 v Minister for Home Affairs [2020] FCA 1817 at [68]-[71] and the decisions cited therein.
The delegate’s reasons are detailed, and considered. That the Court has found legal error in some key aspects does not lead to a conclusion that there was anything deserving of the characterisation of irrational or legally unreasonable about exercise of power by her.
Tooterie
It is appropriate to say something about the information before the delegate about Tooterie. In my opinion, this topic provides a further and persuasive demonstration of the conflation of issues, omissions and misunderstandings which occurred in the delegate’s reasoning and which have led me to uphold both ground 3 and ground 5 of the originating application.
To recap, the chronology about what happened with the nomination of Tooterie as an apical ancestor was firstly her inclusion as a Taungurung apical ancestor at a meeting of the Taungurung traditional owner group on 10 August 2013. The minutes of that meeting stated that Tooterie was “accepted as a Taungurung ancestor (by virtue of her identity as Ngurai-Illum)”. As the objectors submitted to the delegate, this inclusion occurred by a resolution of a very small number of people who attended that meeting (approximately 14), and the attendees did not include any of the people whose views were subsequently recognised by the Taungurung as important (and in a sense decisive) on the decision to remove Tooterie as an apical ancestor at the October 2018 authorisation meeting.
Tooterie was removed as an apical ancestor for the ILUA by resolution at the authorisation meeting on 20 October 2018, at the request of Ms Xibberas. The land associated with her and her descendants, however, remained part of the ILUA area. Ms Xibberas deposed:
It had been my wish that tooterie’s country should also be returned, however, my judgment of the meeting was that I would get support to remove Tooterie but not my country.
What was said on behalf of the objectors about Tooterie was the following (taken from Holding Redlich’s Annexure B to its initial objection letter to the delegate):
Ms Gardiner, Mr Peters, Ms Thorpe, Ms Xiberras and Ms Layton are each descendants of persons who have been claimed as Taungurung ‘Apical Ancestors’, including:
(a) Lydia Beaton;
(b) Tooterie;
(c) Louisa Shepard; and
(d) Elizabeth Hylett/Murchison.
(collectively, the Contested Ancestors).
After referring to the resolution at the authorisation meeting to remove Tooterie and at [28] referring to the minutes recording that no action was taken to limit authorisation to the descendants of the remaining 11 apical ancestors and to stop and reconvene the authorisation meeting accordingly, and to the non-removal from the ILUA area of country said to be Tooterie’s country, the objectors contended:
As a consequence of the above paragraphs, there:
(a)was not a (single) group (in terms of the TOS Act definition of traditional owner group) in relation to the RSA area who may authorise within the meaning in s 251A of the NT Act the making of the Taungurung ILUA.
(b)could not, within the meaning in s 251A of the NT Act, be a single authorising decision, as purported to occur at the 20 October 2018 meeting, binding both the Taungurung and Ngurai Illum Wurrung.
(c)Alternatively:
(i)those remaining in the re-constituted Taungurung group descended from the 11 apical ancestors could not comprise all of the persons who hold or may hold native title in relation to the RSA area and who may authorise, within the meaning in s 251A of the NT Act, the making of an indigenous land use agreement; or
(ii)if the Tooterie descendants are not, or are not considered to be, persons who hold or may hold native title in relation to the RSA area, authorisation of the Taungurung ILUA was purportedly given by persons other than those who hold or may hold native title through those persons at the 20 October 2018 meeting.
First Nations Legal’s response was:
Finally, while the Objection does not provide evidence in support of the Two Groups Argument, it does seem to imply that the removal of Tooterie as an apical ancestor had the effect of creating two or more traditional owner groups. This is not the case, for the following reasons:
a.It is undisputed that Tooterie was an Aboriginal woman associated with the ILUA area in the nineteenth century, and born into the Ngurai i Ilium.
b.Upon reaching maturity Tooterie married into the Wurundjeri-Woi Wurrung.
c.In the classical Kulin model the inter-generational transfer of rights was patriarchal. Upon marriage Tooterie would have become a member of the Wurundjeri-Woi Wurrung. She may have retained Ngurai Ilium / Taungurung rights, but would not have passed them onto her children (who would have inherited their father's rights).
d.However, in modern Kulin society, the transfer o r rights is generally accepted from ancestors of either sex.
e.As such, in the Victorian context there would be nothing out of the ordinary in Tooterie descendants seeking to exercise native title rights within a Taungurung identity, if they chose to do so, and were accepted by the wider Taungurung group.
f.However, in this particular case, all known descendants of Tooterie choose to identify as Wurundjeri-Woi Wurrung.
g.Accordingly, one of the Objecting Parties, Ms Annette Xiberras, attended the authorisation meeting and expressed her displeasure at the inclusion of Tooterie as a Taungurung ancestor, as in her view she was more correctly to be identified as a Wurundjeri-Woi Wurrung ancestor. Ms Xiberras expressed this position passionately, and asked the meeting to “give me back my grandmother.”
h.On the basis that no known person was expressing a Taungurung identity solely on the basis of descent from Tooterie, and that her inclusion may cause offence to Ms Xiberras and other Wurundjeri-Woi Wurrung people, the resolution to remove Tooterie was strongly supported.
i.However, this action did not, by alchemy, bring into existence some second native title group at the authorisation meeting. This is clear, because:
i.Tooterie was not removed on the basis of her Ngurai i Illum characteristics, but rather those that saw her claimed as Wurundjeri-Woi Wurrung.
ii.The Wurundjeri-Woi Wurrung group do not hold native title in the ILUA area, and were not bound by any decision at the authorisation meeting.
iii.Tooterie’s removal could not trigger the sudden emergence of a separate Ngurai Ilium group, because:
A.she was now solely identified as Wurundjeri-Woi Wurrung, at the request of her descendants; and
B.several other Ngurai Illum ancestors remain as Taungurung apical ancestors. This much is admitted by the Objecting Parties who count Charles and Mary Tatambo, Elizabeth Hylett and Louisa Shepherd as Ngurai Ilium ancestors, all of whom remain Taungurung apical ancestors.
37.On the basis of the above Tooterie’s removal is not relevant to any assessment as to whether two or more groups were bound by the decision at the authorisation meeting, and there is no evidence before the Registrar (just as there was none before FNLRS) which supports a conclusion that there were two distinct Traditional Owner groups present.
(Footnotes omitted.)
The State contended to the delegate (at [46]-[49]):
A full group meeting of the Taungurung that took place on 14 July 2012 resolved that the Ngurai-Illum are one of the Taungurung clans, in light of oral history, a common language and a lack of engagement on the issue from those who may assert a separate identity for the Ngurai-Illum. (FNLRS discusses this at paragraphs 40-41 of its comments.)
Consistent with this, country associated with the Ngurai-Illum ultimately formed part of the area of the proposed ILUA. The formal identification of Tooterie as an apical ancestor had not yet occurred and was not noted as a reason for the inclusion of the Ngurai-Illum as a clan of the Taungurung.
In the course of the TOS Act processes, the State received anthropological and historical information from NTSV on behalf of the Taungurung, which concluded that the Ngurai-Illum and the Taungurung had common language, laws and customs. The State considered this information and accepted that it was reasonable to include country associated with the Ngurai-Illum in the proposed ILUA area.
Country associated with the Ngurai-Illum was included in the proposed ILUA area for the reasons explained above. It was not reliant on the identification of Tooterie as an apical ancestor of the Taungurung.
I have already explained some of the difficulties with these passages earlier in my reasons. The later passages compound the difficulty. “Common language, laws and customs” at that level of generality is not a basis on which native title over specific land and waters can be recognised. Especially so where, as the evidence before the Court reveals, the overarching system of law and custom is said to be that of the Kulin Nation, yet, the native title was not contended by First Nations Legal or the State to reside in all the members of the Kulin Nation. Common language as I have explained, may or may not say anything about holding of native title in particular country.
The delegate’s assessment of the objections about the way Tooterie was included and removed, but not her country, appear at [139]:
Following the resolution to remove an apical ancestor, Tooterie, from the Taungurung claim group description, two of Tooterie’s descendants who were not descendants of any of the other ancestors left the meeting and did not participate any further, including in the resolution to authorise the making of the ILUA. Accordingly, concerns that Tooterie’s descendants did not hold native title in the area and should not have participated in the decision making process, or alternatively that they were excluded from the process, are addressed from the information before me indicating that Tooterie’s descendants voluntarily left the meeting once the ancestor was removed as a Taungurung apical ancestor.
This was the only finding made by the delegate. It may or may not have been open on the material for the delegate to reject the objectors’ contention about First Nations Legal’s failing to ensure that only those identified as likely to hold native title voted at the authorisation meeting by referring to the departure of Mrs Xibberas and another person after the resolution to remove Tooterie. I say no more because this issue was not raised in argument.
In terms of confirming my view that the delegate erred in ways which mean grounds 3 and 5 should be upheld, what is not the subject of findings by the delegate about the Tooterie issue is more revealing than what is. Implicitly, the delegate appears to have accepted the arguments put by First Nations Legal and the State that the claim group could unilaterally add or remove apical ancestors as they saw fit – not because of an absence of material that the ancestor had rights and interests under traditional law and custom in the relevant land and waters at sovereignty, but in order to get rid of an objection to the composition of the ILUA group by the descendants of that ancestor. It is only because the delegate did not engage with the affidavit material, and with the absence of detailed information from First Nations Legal and the State (as opposed to assertions) that this erroneous approach could be taken. The delegate failed to appreciate, as I have explained, that if there were flaws in the reliability and completeness of the information upon which First Nations Legal acted, and if there was a failure on its part to really grapple with the native title consequences (not the TOS Act consequences) of what was being said by the objectors from at least 2018, were all matters capable of informing the formation of her state of satisfaction whether, on an independent review, First Nations Legal had not made reasonable efforts to identify all those persons who held native title. Implicitly, this task includes being satisfied First Nations Legal had not made reasonable efforts to first, exclude those who did not have native title over parts of the ILUA area, and second to ensure that those identified held native title over all of the ILUA area. This was how the Ngurai Illum Wurrung issue, and Tooterie’s place in it, should have been approached.
Finally on Tooterie, Ms Xibberas’ point made in her affidavit, and the point emphasised in the objections by Holding Redlich, was that while Tooterie was removed as an ancestor there was no alteration to the land and waters covered by the ILUA was an argument of some force with which the delegate did not engage. The whole point of identifying apical ancestors in a native title claim or determination is because it is their rights and interests in the land and waters at the time of sovereignty, or effective sovereignty, which establishes the holding of native title at sovereignty in those lands and waters. Thereafter, what must be established is how those rights and interests were passed on after sovereignty, and which people in contemporary times hold them, over which areas, and whether they hold them because of a sufficiently continuous connection with the specific land and waters through the observance of the traditional law and custom which is said to give them those rights. If a person is said not to hold rights and interests in particular land and waters at sovereignty, then it may be appropriate to remove them as an apical ancestor.
But that was not said to be the situation with Tooterie. The position at sovereignty with her rights and interests remained disputed – because of the contentions that she was a Ngurai Illum Wurrung woman, and that her rights in Ngurai Illum Wurrung land within the area came through that group and not through the Taungurung, remained the subject of debate, and the delegate was not given any evidence of the work done through a native title prism by First Nations Legal on this question. While her marriage out of the Ngurai Illum Wurrung was accepted as the basis for her acquiring other native title rights (in Wurundjeri land), as First Nations Legal correctly acknowledged, a post sovereignty adaptation of the pathways under traditional law for the acquisition of rights mean rights could pass cognatically and not only patrilineally. The affidavit material did not suggest, as First Nations Legal’s contentions did, that her descendants such as Ms Xibberas, were accepting that Tooterie had no country within the ILUA area. Indeed, it is plain they were contending the opposite. If there was a rational basis for further investigation of this matter, which the material suggested there was and which had not occurred with the post-2018 involvement of the objectors, then there was an objective basis on which the delegate could have been satisfied First Nations Legal had not made reasonable efforts to identify all those person who hold native title in the ILUA area, because it had simply allowed the Taungurung to get rid of a roadblock by removing Tooterie as an apical ancestor, without addressing the fundamental native title issue about where she had rights and interests in country as a Ngurai Illum Wurrung woman, and who under traditional law took those rights through her. As I have noted elsewhere, the delegate was not obliged to accept the objectors’ position, but she was required to engage with it, which she did not.
I have already described above the similar process about Lizzie Davis (nee Hylett), Mr Peters’ ancestor. I further note that from the outset of the ILUA objection process similar points were made about Mrs Gardiner’s ancestor Lydia Beaton, who Mrs Gardiner maintained (including at Taungurung “full group” meetings) was a Waywurru woman and not a Taungurung woman. There are thus three apical ancestors where there was substantive, clear and detailed material put before the delegate about the failures, omissions and inaccuracies in First Nations Legal’s identification and research processes. None of this material was really grappled with by the delegate, including through the affidavits but also in her analysis. Instead the broad assertions of First Nations Legal and the State were taken at face value, and the consequences of the absence of underlying information from those two parties was not evaluated. In the unusual factual circumstances of this situation in Victoria, with no native title application, no native title-focussed anthropological research (rather than research which may address issues relevant under the broader TOS Act process), that level of engagement constituted a failure to perform the task required of a fresh and independent review of the efforts made by First Nations Legal.
CONCLUSION AND ORDERS
Grounds 3 and 5 should be upheld. Those grounds reveal sufficiently material and significant errors of law by the delegate that the registration decision cannot be said to be a lawful discharge of her function. Although this proceeding invokes this Court’s jurisdiction under the ADJR Act, I am also satisfied that the errors are properly characterised as jurisdictional.
That conclusion renders it necessary for the Court to hear the parties on the point raised by senior counsel for the TLWC – whether the fact the ILUA has been registered (and, implicitly, that no stay or injunction in relation to the registration has been granted), means the applicants cannot obtain any substantive relief.
Directions will be made for submissions on that question, and on the question of appropriate relief in light of the Court’s conclusions. I have directed the respondents to file their submissions first, as the first respondent has raised an objection to the grant of any relief in favour of the applicants. Until those submissions are filed and considered, no substantive orders will be made in the proceeding.
I certify that the preceding three hundred and twenty-one (321) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate:
Dated: 9 February 2021
ANNEXURE A
SCHEDULE OF PARTIES
Applicants
Fourth Applicant:
ELIZABETH THORPE
6
9
5