Hazelbane v Doepel

Case [2008] FCA 290

FEDERAL COURT OF AUSTRALIA

Hazelbane v Doepel [2008] FCA 290

NATIVE TITLE – application to review decision of Native Title Registrar to accept application for registration of Batchelor No 2 claim under s 190A of Native Title Act 1993 (Cth) – whether applicant group, Batchelor 1 claimants are “persons aggrieved” by the decision so as to have standing to challenge the decision of the Registrar – whether Batchelor 1 documents devised procedural fairness through failure to be given opportunity to provide submissions on whether the Batchelor No 2 claimants should be accepted for registration pursuant to s 190A – consideration of requirements in ss 190B and 190C – whether Registrar erred in having regard to additional information provided by Batchelor No 2 claimants specifically for the purpose of a mediation in order to be satisfied of a sufficient factual basis to meet native title rights and interests desired pursuant to s 190B(5) – whether Registrar fell into error by identifying a wrong issue and asking himself a wrong question in addressing procedural requirements in s 190C(2) and (4) – whether requirements of ss 61 and 62 met

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Native Title Act 1993 (Cth)
Federal Court of Australia Act 1976 (Cth)
Lands Acquisition Act 1978 (NT)

Griffiths v Lands and Mining Tribunal and Minister for Lands Planning and the Environment (2003) 179 FLR 241 discussed
Minister for Lands, Planning & Environment (2004) 14 NTLR 188 discussed
Griffiths v Northern Territory of Australia [2006] FCA 903 discussed
Griffiths v Northern Territory of Australia [2007] FCAFC 178 discussed
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 referred to
Right to Life Association (NSW) Inc. v Secretary, Department of Human Services and Health (1995) 56 FCR 50 referred to
Fejo v Northern Territory (1998) 196 CLR 96 referred to
Strickland v Native Title Registrar (1999) 168 ALR 242 referred to
Western Australia v Native Title Registrar (1999) 95 FCR 93 discussed
Strickland and Nudding (on behalf of the Maduwongga People) v Native Title Registrar [1999] FCA 1089 discussed/followed
Kioa v West (1985) 159 CLR 550 cited
Minister for Agricultural Affairs; ex parte Miah (2001) 206 CLR 57 cited
SZBEL v Minister for Immigration (2006) 81 ALJR 515 cited
Griffith University v Tang (2005) 31 CLR 99 discussed
Martin v Native Title Registrar [2001] FCA 16 referred to
Craig v South Australia (1995) 184 CLR 163 cited
Northern Territory of Australia v Doepel (2003) 133 FCR 112 discussed/followed
Quall v Risk [2001] FCA 378 referred to

GABRIEL HAZELBANE, ADA GOODMAN, MILDRED MCGINNESS, JANE MCGREGOR, ADA CALMA AND EVA MCGREGOR (ON BEHALF OF THE WARAI AND KUNGARAKANY GROUPS v CHRISTOPHER DOEPEL AS NATIVE TITLE REGISTRAR AND THOMAS EDWARD PETHERICK, MAY STEVENS AND CAPTAIN WODIDJ (ON BEHALF OF THE EMU AND BLUE TONGUE LIZARD CLANS OF THE FINNISS RIVER BRINKIN GROUP)

NTD 9 OF 2006

MANSFIELD J
7 MARCH 2008
ADELAIDE (HEARD IN DARWIN)


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 9 OF 2006

BETWEEN:

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AGLC
Hazelbane v Doepel [2008] FCA 290
Case
[2008] FCA 290
Decision Date

CaseChat Overview and Summary

The case of Hazelbane v Doepel involved the Town of Batchelor No 1 applicants contesting the Registrar's decision to register the Town of Batchelor No 2 application, which they claimed created two groups with identical negotiation rights over the same claim area. This registration was seen to potentially impact their procedural rights and the extent to which they could exercise those rights. The dispute arose from the Registrar's decision to accept the Town of Batchelor No 2 application for registration under the Native Title Act 1993 (Cth), without notifying the Town of Batchelor No 1 applicants or the Northern Land Council (NLC), who had previously certified the Town of Batchelor No 1 application.

The central legal issue was whether the Town of Batchelor No 1 applicants had standing to challenge the Registrar's decision, given that their procedural rights were allegedly restricted by the registration of the Town of Batchelor No 2 application. The applicants argued that their interests were adversely affected by the decision, as it granted the Town of Batchelor No 2 applicants equivalent procedural rights, thereby limiting their own rights and the extent to which they could be exercised. The Court had to determine if the applicants qualified as "persons aggrieved" under the Administrative Decisions (Judicial Review) Act 1977 (Cth), meaning that they had a sufficient personal interest in the outcome of the decision to be able to challenge it.

The Court found that the Town of Batchelor No 1 applicants did have standing to challenge the Registrar's decision because their procedural rights were indeed adversely affected. The Court set aside the Registrar's decision to accept the Town of Batchelor No 2 application for registration and granted leave to the Town of Batchelor No 2 applicants to apply for reconsideration if they wished. This outcome recognised the applicants' right to be heard and the importance of procedural fairness in the registration process of native title claims.

Orders

Orders of the court

1. The decision of the Registrar of 3 May 2006 that the Town of Batchelor No 2 application be accepted for registration under s 190A of the Native Title Act 1993 (Cth) be set aside.

2. Leave to apply granted to the Town of Batchelor No 2 applicants in the event that they wish the Town of Batchelor No 2 application be referred back to the Registrar to reconsider whether to accept it for registration.

Background

Background to the litigation

The Town of Batchelor No 1 applicants claim to be aggrieved by reason of the decision of the Registrar, because in essence there are now two groups of people with the same negotiation rights in respect of the same claim area by reason of the registration of both the Town of Batchelor No 1 application and the Town of Batchelor No 2 application. Whether that is sufficient for them to qualify as persons aggrieved by the decision of the Registrar to accept for registration the Town of Batchelor No 2 application is a matter I shall address below.BACKGROUND However, I note that the issue is not merely a theoretical one. Two notices of proposal under s 43 of the Lands Acquisition Act to compulsorily acquire such native title rights and interests as exist in relation to parts of the Town of Batchelor have been issued by the relevant minister, the Minister for Lands, Planning and Environment of the Northern Territory. The first was given on 8 May 2001, and the second on 22 June 2001 in respect of various allotments within the Town of Batchelor. The Town of Batchelor No 1 applicants objected to those proposals pursuant to their procedural rights under the Lands Acquisition Act, but those objections were not received because they were made out of time. The Minister then on 24 June 2002 signed the notice of acquisition and purported to acquire the native title rights and interests in respect of those pieces of land. Consequently, the Town of Batchelor No 1 applicants brought proceedings in the Supreme Court of the Northern Territory on 5 July 2002 in relation to the Minister’s refusal to extend time within which to have lodged their objections, and asserting that the purported acquisition notices were invalid and beyond power: Hazelbane v Minister for Lands (Matters 100, 101, 102 and 103 of 2002 in the Supreme Court of the Northern Territory). Following the institution of those proceedings, the Minister gave an undertaking to the Supreme Court not to proceed to grant interests in or to deal with or transfer the land the subject of those notices without giving notice to the Town of Batchelor No 1 applicants. Those proceedings were then adjourned to a date to be fixed pending resolution of issues raised in related proceedings in which the same issue occurred. That same issue occurred in relation to proposals to acquire native title rights and interests, or certain of them, in the Town of Timber Creek. On 31 July 2003, a judge of the Supreme Court of the Northern Territory decided that such notices were invalid as being beyond power in the circumstances: Griffiths v Lands and Mining Tribunal and Minister for Lands Planning and the Environment (2003) 179 FLR 241. That decision was reversed by the Full Court of the Supreme Court of the Northern Territory: Minister for Lands, Planning & Environment (2004) 14 NTLR 188. The High Court subsequently granted leave to appeal from that decision. On 15 November 2007, judgment on the appeal was reserved. It addresses questions as to whether s 43 of the Lands Acquisition Act permits the compulsory acquisition of native title rights and interests in land for the purpose of extinguishing native title in order to alienate land for the private benefit of another citizen; whether s 24MD of the NT Act permits the acquisition of native title rights and interests in land for the purpose of vesting the affected land in the Northern Territory freed and discharged of the native title rights and interests; and whether s 46 of the Lands Acquisition Act is repugnant to s 238 of the NT Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

The Registrar, in deciding to accept the Town of Batchelor No 2 application for registration pursuant to s 190A of the NT Act, did not notify the Town of Batchelor No 1 applicants or their solicitors of the Town of Batchelor No 2 application, and did not seek submissions from them on whether that application should be accepted for registration. Nor did the Registrar notify the Northern Land Council (NLC), which is the responsible native title representative body for the area, of that application or seek submissions from it on whether that application should be accepted for registration. The NLC had, pursuant to s 203BE of the NT Act, certified the Town of Batchelor No 1 application as the representative body for the area in which that claim was made. It thereby confirmed that it held the opinion that all the persons in that native title clan group had authorised the Town of Batchelor No 1 applicants to make that application and to deal with matters arising in relation to it, and that all reasonable efforts had been made to ensure that that application described or otherwise identified all the other persons in the native title claim group: see s 203BE(2). The Northern Land Council did not certify the Town of Batchelor No 2 application.CONSIDERATIONStanding The Town of Batchelor No 1 applicants must satisfy the Court that they are persons aggrieved by the decision of the Registrar, before they have the standing to challenge the validity of his decision under the ADJR Act. They contend that their interests are adversely affected by the Registrar’s decision, so that success in this application for review will result in a benefit to them, or relieve them of a detriment, to an extent greater than ordinary members of the public: see Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 75-76; Right to Life Association (NSW) Inc. v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 60-65. That must be because the procedural rights which they obtain by registration of the Town of Batchelor No 1 application, as discussed above (see Fejo v Northern Territory (1998) 196 CLR 96 at 121-125; Strickland v Native Title Registrar (1999) 168 ALR 242 at 244-246), or the enjoyment of those rights and the extent to which they can be exercised, are restricted by the decision of the Registrar which gives the Town of Batchelor No 2 applicants equivalent procedural rights. In Western Australia v Native Title Registrar (1999) 95 FCR 93, Carr J decided that the State of Western Australia was a “person aggrieved” for the purposes of making an application for review under s 5 of the ADJR Act in respect of a decision of the Registrar to admit for registration a particular native title claim. His Honour found that the adverse effect of registration upon the State so qualified it, because as owner of the land the subject of that particular native title claim, the State was restricted in its capacity to deal with its proprietary interest, and was obliged to submit to the statutory requirements of negotiation in respect of future acts under the NT Act. Obviously, the impact upon an owner of land of an application for the determination of native title being admitted for registration under s 190A of the NT Act is different from the impact upon a person or persons in the position of the Batchelor No 1 applicants. They are competing native title claimants whose claim has been registered, and not land owners.