FEDERAL COURT OF AUSTRALIA
Gudjala People #2 v Native Title Registrar [2007] FCA 1167
NATIVE TITLE – application for review of a decision by the Native Title Registrar not to register an application – no breach of procedural fairness based on a failure of the Delegate to follow an earlier registration decision – factual basis of the claim – irrelevant considerations – no error of law – consideration of the principles expressed in Yorta Yorta – identification of the claim group – factual basis for claimed Native Title – traditional laws and customs – traditional physical connection
Native Title Act 1993 (Cth) ss 23F, 61, 61A, 62, 63, 82, 190, 190A, 190B, 190C, 190D, 223, 238
Attorney-General (New South Wales) v Quin (1989-1990) 170 CLR 1 followed
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 followed
Northern Territory of Australia v Doepel [2003] FCA 1384 citedGUDJALA PEOPLE #2 (DAVID ALLIE, ROE HERO, WILLIAM SANTO, GAVIN ALLINGHAM, ALLAN HUEN, GLORIA SANTO) v NATIVE TITLE REGISTRAR AND AUTHORISED DELEGATE AND STATE OF QUEENSLAND
QUD 485 OF 2006
DOWSETT J
7 AUGUST 2007
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 485 OF 2006
BETWEEN:
GUDJALA PEOPLE #2 (DAVID ALLIE, ROE HERO, WILLIAM SANTO, GAVIN ALLINGHAM, ALLAN HUEN, GLORIA SANTO)
ApplicantsAND:
NATIVE TITLE REGISTRAR AND AUTHORISED DELEGATE
First RespondentSTATE OF QUEENSLAND
Second Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
7 AUGUST 2007
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.the application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 485 OF 2006
BETWEEN:
GUDJALA PEOPLE #2 (DAVID ALLIE, ROE HERO, WILLIAM SANTO, GAVIN ALLINGHAM, ALLAN HUEN, GLORIA SANTO)
ApplicantsAND:
NATIVE TITLE REGISTRAR AND AUTHORISED DELEGATE
First RespondentSTATE OF QUEENSLAND
Second Respondent
JUDGE:
DOWSETT J
DATE:
7 AUGUST 2007
PLACE:
BRISBANE
REASONS FOR JUDGMENT
THE APPLICATION
On 21 April 2006 the applicant applied to this Court for a Native Title determination (the “Application”). Although the applicant is comprised of a group of persons, I will refer to them collectively as the “applicant”, reflecting the usage adopted in the Native Title Act 1993 (Cth) (the “Act”). Pursuant to s 63 of the Act, the Registrar gave a copy of the Application and supporting material to the Native Title Registrar (the “NT Registrar”). A delegate of the NT Registrar (the “Delegate”) then considered the Application in accordance with s 190A of the Act but decided not to accept it for registration in the Native Title Register (the “Register”). Pursuant to s 190D(1) the NT Registrar notified the applicant accordingly. The applicant now seeks review of that decision pursuant to subs 190D(2) of the Act.
REGISTRATION
An application for a Native Title determination is made pursuant to s 61 of the Act. Sections 61, 61A and 62 prescribe the content and form of a valid application. However compliance with those requirements is not…
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- Case
- [2007] FCA 1167
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the delegate’s decision not to accept the Native Title determination application for registration was lawful and reasonable. Specifically, the court had to determine if the delegate was satisfied with the conditions prescribed by sections 190B and 190C of the Act, which pertain to the identification of the native title claim group, the sufficiency of the factual basis for the claim, the existence of traditional laws and customs, and the traditional physical connection of the claimants to the land or waters in question.
The court reviewed the delegate’s decision and found that the delegate was not satisfied with the identification of the native title claim group as required by section 190B(3) and (5) of the Act. The court held that the application did not sufficiently describe the persons in the native title claim group, nor did it provide a sufficient factual basis to support the assertion that the group had a traditional connection to the land. Additionally, the court found that the delegate had not been satisfied that at least one member of the native title claim group had or previously had a traditional physical connection with the land, as required by section 190B(7)(a). As a result, the court upheld the delegate’s decision and dismissed the application for judicial review.
The court ordered that the application for a Native Title determination be dismissed, thereby affirming the decision of the delegate not to register the claim in the Native Title Register.
Orders
Orders of the court
1. the application be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: DOWSETT J
On 21 April 2006 the applicant applied to this Court for a Native Title determination (the “Application”). Although the applicant is comprised of a group of persons, I will refer to them collectively as the “applicant”, reflecting the usage adopted in the Native Title Act 1993 (Cth) (the “Act”). Pursuant to s 63 of the Act, the Registrar gave a copy of the Application and supporting material to the Native Title Registrar (the “NT Registrar”). A delegate of the NT Registrar (the “Delegate”) then considered the Application in accordance with s 190A of the Act but decided not to accept it for registration in the Native Title Register (the “Register”). Pursuant to s 190D(1) the NT Registrar notified the applicant accordingly. The applicant now seeks review of that decision pursuant to subs 190D(2) of the Act. REGISTRATION An application for a Native Title determination is made pursuant to s 61 of the Act. Sections 61, 61A and 62 prescribe the content and form of a valid application. However compliance with those requirements is not necessarily sufficient to secure registration of the claim. Registration is regulated by Pt 7 of the Act. The effect of registration is that, in advance of any determination as to the existence of Native Title, the applicant is entitled to participate in negotiations concerning proposed development affecting the relevant land. Thus the effect of the Delegate’s decision is that parties proposing development upon the land included in the application will not be compelled to negotiate with the applicant. A claim may be accepted for registration only if the NT Registrar (or a delegate) is satisfied as to the conditions prescribed by ss 190B and 190C of the Act. For present purposes the requirements of subss 190B(3), (5), (6) and (7) are relevant. Those subsections provide as follows:‘(3) The Registrar must be satisfied that:(a)the persons in the native title claim group are named in the application; or(b)the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.…(4)…(5)The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:(a)that the native title claim group have, and the predecessors of those persons had, an association with the area; and(b)that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and(c)that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.…(6)The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.…(7)The Registrar must be satisfied that at least one member of the native title claim group:(a)currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or(b)previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by:(i)the Crown in any capacity; or(ii)a statutory authority of the Crown in any capacity; or(iii)any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.’