Gardiner v Taungurung Land and Waters Council

In the Federal Court, Gardiner sought judicial review of a decision by a delegate of the Registrar of the Federal Court to register an Indigenous Land Use Agreement (ILUA) as an area agreement under the Native Title Act 1993 (Cth). The ILUA was the product of negotiations between the Taungurung Land and Waters Council (the first respondent) and the State of Victoria. The second respondent, First Nations Legal and Research Services, is the Native Title Representative Body for Victoria and had certified the application for registration of the ILUA. The applicants argued that the delegate’s decision to register the ILUA was invalid because the statutory conditions in s 24CK(2) of the Act were not satisfied. The applicants also argued that the decision was otherwise invalid for reasons including lack of procedural fairness. The applicants sought the Court to set aside the decision of the delegate and make a declaration that the decision was invalid. The Court held that the decision of the delegate was invalid because the statutory conditions in s 24CK(2) were not satisfied. The Court held that the decision of the delegate did not accord with s 24CK(2)(c) because, while all reasonable efforts had been made to identify all persons who held or may hold native title in relation to land or waters in the area covered by the agreement, it was not the case that none of the persons objecting to the registration of the ILUA had satisfied the Registrar that the requirements of s 203BE(5)(a) and (b) had not been satisfied in relation to the certification of the application by First Nations Legal. The Court further held that the decision was invalid for reasons of procedural fairness. The Court held that the delegate had failed to provide the objectors with a fair opportunity to comment on the Full Court’s decision in Northern Land Council v Quall [2019] FCAFC 77, which was a material consideration in the decision to register the ILUA. The Court held that the delegate had also failed to provide the objectors with a fair opportunity to comment on the decision of the Court in McGlade No 2 [2020] FCA 102, which was a material consideration in the decision. The Court held that the application for judicial review would be upheld on the basis of the errors identified above. The Court held that the parties should be given an opportunity to address the question of relief in the event that the decision was set aside.