Hicks v Aboriginal & Torres Strait Islander Commission

FEDERAL COURT OF AUSTRALIA

Hicks v Aboriginal and Torres Strait Islander Commission [2000] FCA 1449

ABORIGINES – native title – application for funding for native title claim – application refused by representative body – application to Aboriginal and Torres Strait Islander Commission for direct funding – application declined pending judicial review of representative body decision – decision-making principles adopted by ATSIC – Program Statements, Policies and Guidelines – whether exceptional circumstances to warrant direct funding – whether error of law in ATSIC decision refusing direct funding – proper exercise of discretion – application dismissed.

Native Title Act 1993 (Cth)
Administrative Decisions (Judicial Review) Act 1977
Aboriginal and Torres Strait Islander Commission Act 1989

Hicks v Aboriginal Legal Service of Western Australia (Inc) (2000) 98 FCR 435 referred to
Ward v Western Australia (2000) 170 ALR 159 referred to
Mabo v Queensland (No 2) (1992) 175 CLR 1 referred to

WILFRED HICKS AND OTHERS ON BEHALF OF THE WONG-GOO-TT-OO NATIVE TITLE CLAIMANT GROUP v ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
W99 of 2000

FRENCH J
13 OCTOBER 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 99 OF 2000

BETWEEN:	WILFRED HICKS AND OTHERS ON BEHALF OF THE WONG-GOO-TT-OO NATIVE TITLE CLAIMANT GROUP APPLICANT
AND:	ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	13 October 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The time limited for making this application is extended to 16 June 200.

2.The application is dismissed.

3.        The Applicants are to pay the Respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 99 OF 2000

BETWEEN:	WILFRED HICKS AND OTHERS ON BEHALF OF THE WONG-GOO-TT-OO NATIVE TITLE CLAIMANT GROUP APPLICANT
AND:	ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION RESPONDENT

JUDGE:	FRENCH J
DATE:	13 October 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the Aboriginal and Torres Strait Islander Commission (ATSIC) to refuse direct funding to a group of people which has applied for a native title determination in the West Pilbara region.  The application overlaps substantially with another by the Ngaluma and Yinjibandi People who were represented by the Aboriginal Legal Service of Western Australia (ALS) which was, until 1 July 2000, the representative body for the Pilbara area under the Native Title Act 1993 (Cth). The ALS having, on 16 September 1999, refused funding to the applicants they challenged that decision in this Court before Carr J on grounds including reasonable apprehension of bias having regard to the commitment of the ALS to the Ngaluma Yinjibandi claim. Prior to the resolution of those proceedings, the applicants also applied for direct funding from ATSIC under the Aboriginal and Torres Strait Islander Commission Act 1989.  That application was refused on 20 April 2000 pending the resolution of the proceedings before Carr J.  That refusal…