Kanak v National Native Title Tribunal
[1995] FCA 859
•27 OCTOBER 1995
CATCHWORDS
NATIVE TITLE - Practice and procedure - Native Title Determination application - effect of application not complying with s.62 of Native Title Act 1993 (Cth) - non-complying application may not be rejected until applicant has been notified of the non-compliance and given a reasonable opportunity to rectify the non-compliance - applicant to be given reasonable opportunity to file affidavit and to pay fees or demonstrate exemption from liability to pay fees.
NATIVE TITLE - Person claiming to hold native title - requirement in s.63 that applicant show that a prima facie claim can be made out - absence of biological or adoptive relationship with groups said to be entitled to rights of enjoyment under native title - unable to show a prima facie claim.
Native Title Act 1993 (Cth), ss 61-67, 70.
National Native Title Tribunal Regulations 1993 (Cth), regs 7,8.
Mabo v The State of Queensland [No.2] (1992) 175 CLR 1.
Re Waanyi People's Native Title Application (1994) 129 ALR 100.
Re Waanyi People's Native Title Application (1994) 129 ALR 118.
In the matter of Native Title Act 1993; Re Associated Gold Fields NL and Alkane Exploration NL, National Native Title Tribunal, Olney J., 6 February 1995, unreported.
Northern Territory v Lane, Federal Court of Australia, O'Loughlin J., 24 August 1995, unreported.
DOMINIC WY KANAK v NATIONAL NATIVE TITLE TRIBUNAL & ORS
NG 6003 of 1995
Lockhart, Lee, Sackville JJ.
Sydney
27 October 1995
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) NG 6003 OF 1995
GENERAL DIVISION )
ON APPEAL FROM THE NATIONAL NATIVE TITLE TRIBUNAL
CONSTITUTED BY THE HONOURABLE JUSTICE FRENCH, PRESIDENT
BETWEEN:
DOMINIC WY KANAK
Applicant
AND:
NATIONAL NATIVE TITLE TRIBUNAL
First Respondent
THE PIPELINE AUTHORITY
Second Respondent
ICI AUSTRALIA OPERATIONS PTY LIMITED
Third Respondent
GORODOK PTY LIMITED
Fourth Respondent
CORAM: LOCKHART, LEE, SACKVILLE JJ.
PLACE: SYDNEY
DATE: 27 OCTOBER 1995
MINUTES OF ORDER
THE COURT:
AFFIRMS the decision of the Honourable Justice French, President of the National Native Title Tribunal, given on 23 March 1995.
ORDERS that the application be dismissed.
Makes no order as to costs.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) NG 6003 OF 1995
GENERAL DIVISION )
ON APPEAL FROM THE NATIONAL NATIVE TITLE TRIBUNAL
CONSTITUTED BY THE HONOURABLE JUSTICE FRENCH, PRESIDENT
BETWEEN:
DOMINIC WY KANAK
Applicant
AND:
NATIONAL NATIVE TITLE TRIBUNAL
First Respondent
THE PIPELINE AUTHORITY
Second Respondent
ICI AUSTRALIA OPERATIONS PTY LIMITED
Third Respondent
GORODOK PTY LIMITED
Fourth Respondent
CORAM: LOCKHART, LEE, SACKVILLE JJ.
PLACE: SYDNEY
DATE: 27 OCTOBER 1995
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
On 10 October 1994, in circumstances to be described, the applicant made an application to the Registrar of the National Native Title Tribunal ("the Tribunal"), as a person claiming to hold native land title. The area covered by the application was described by reference to an advertisement,
inserted in the "Koori Mail" of 10 August 1994 by the Pipeline Authority, which is the second respondent to the appeal. The area comprised seventeen small sections of watercourses, parks and recreation reserves along a proposed easement of five to six metres width between Wilton, on the southern outskirts of Sydney, and Tempe, a suburb of Sydney. We shall refer to these areas as the "claimed areas". The Pipeline Authority intends to use the claimed areas to construct portion of a pipeline, which is to extend from Moomba in South Australia to Botany, near Sydney. It has brought a non-claimant application under the Native Title Act 1993 (Cth) ("the NT Act") in relation to the claimed areas. The fourth respondent, which is part of the same group of companies as the third respondent, has contractual arrangements with the Pipeline Authority relating to the pipeline.
The appeal is brought against the decision of the President of the Tribunal, given on 23 March 1995, to direct the Registrar not to accept the application made by the applicant. The appeal is brought under s.169(2) of the NT Act, which provides that, if a person has given an application to the Registrar under s.61 of the Act, the person may appeal to the Court, on a question of fact or law, from a decision of a presidential member not to accept the application.
The applicant represented himself on the appeal. Mr Douglas QC appeared on behalf of the second, third and fourth respondents. The Tribunal, which is the first respondent,
entered a submitting appearance.
The applicant relied on a number of grounds. Before identifying these, it is convenient to set out the relevant provisions of the NT Act and the course of events leading to the decision of the President. However, it should be noted at the outset that, if the applicant is successful on the appeal and if his application is ultimately accepted by the Tribunal, important consequences will follow for the non-claimant application made by the Pipeline Authority in respect of the claimed areas.
THE STATUTORY FRAMEWORK
Objects of the Legislation
The NT Act, with limited exceptions not presently relevant, came into force on 1 January 1994, the date fixed by proclamation for commencement: s.2(2). The main objects of the Act are set out in s.3:
"(a)to provide for the recognition and protection of native title; and
(b)to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and
(c)to establish a mechanism for determining claims to native title; and
(d)to provide for, or permit, the validation of past acts invalidated because of the existence of native title."
The lengthy preamble to the NT Act sets out the considerations taken into account by Parliament in enacting the law. The preamble refers to the progressive dispossession from their lands of the people whose descendants are known as Aboriginal people and Torres Strait Islanders. This dispossession occurred largely without compensation and successive governments had failed to reach a lasting and equitable agreement with Aboriginal people and Torres Strait Islanders concerning the use of their lands. As a consequence, the preamble states, these people "have become, as a group, the most disadvantaged in Australian society". The preamble then records the action taken by the Australian Government to protect the rights, in particular, of its indigenous peoples, by recognising international standards for the protection of universal human rights and fundamental freedoms. The preamble refers to the principal holdings of the High Court in Mabo v The State of Queensland [No.2] (1992) 175 CLR 1. These include rejection of the doctrine that Australia was terra nullius at the time of European settlement, and the holding that the common law
"recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands."
The preamble states that the people of Australia intend
"to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders."
The preamble also acknowledges that a
"special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character."
Applications for a Native Title Determination
Section 10 provides that native title is recognised and protected in accordance with the NT Act. The expression "native title" is defined by s.223(1) to mean:
"the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia."
An application may be made to the Registrar under Part 3 for a determination of native title in relation to an area for which there is no approved determination of native title: s.13(1)(a).
The phrase "a determination of native title" is defined in s.225 to mean a determination of the following:
"(a)whether native title exists in relation to a particular area of land or waters;
(b)if it exists:
(i)who holds it; and
(ii)whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and
(iii)those native title rights and interests that the maker of the determination considers to be of importance; and
(iv)in any case - the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests."
An application may therefore seek a determination that native title either does exist or does not exist in relation to a particular area. The first kind of application is known as a "claimant application" (s.67(2)(a)); the second is known as a non-claimant application (s.67(1)).
Section 61(1) sets out in tabular form the persons who may make applications to the Registrar under the NT Act. In relation to a native title determination application, s.61(1) provides as follows:
APPLICATIONS
Kind of Persons who may make
application Application application
Native title Application under (1) A person or persons
determination subsection 13(1) for claiming to hold the
application a determination of native title either
native title alone or with others; or
(2)A person who holds an interest in relation to the whole of the area in relation to which the determination is sought; or
(3)The Commonwealth Minister; or
(4)The State Minister or the Territory Minister, if the determination is sought in relation to an area wholly
within the jurisdictional limits of the State or Territory concerned.
An "interest" in relation to land and waters (as referred to in paragraph (2) of the third column) means a legal or equitable estate or interest in the land or waters and any other right, charge, power or privilege over land or waters: s.253(1). A person holding such an interest may bring a non-claimant application.
Part 11 of the NT Act provides for the Commonwealth Minister to determine that a body is a representative Aboriginal/Torres Strait Islander body for a specific area: s.202(1). The Minister is not to make the determination unless satisfied, among other things, that the body is broadly representative of the Aboriginal peoples or Torres Strait Islanders in the area: s.202(3). The functions of the representative body include facilitating claims for determination of native title and representing individuals and groups, if requested to do so, in negotiations and proceedings relating to the doing of acts affecting native title: s.202(4).
The Tribunal and Registrar
The NT Act establishes a National Native Title Tribunal: s.107. The Tribunal consists of a President, any number of Deputy Presidents (who must be judges or former judges) and any number of members: s.110. The Tribunal, among other things, has the functions in relation to applications given to it by Part 3 (ss.61-79) of the NT Act: s.108(1). The Tribunal must pursue the objective of carrying out its functions in a "fair, just, economical, informal and prompt way": s.109(1). The President has responsibility for managing the administrative affairs of the Tribunal: s.128.
The NT Act provides for a Native Title Registrar, whose role includes assisting the President in the management of the administrative affairs of the Tribunal: ss.95(1), 96, 129. The Registrar's powers include those set out in Part 3 in relation to applications: s.97. As French J. observed in Re Waanyi People's Native Title Application (1994) 129 ALR 100 (NNTT/French J.), at 109, the Tribunal is an administrative body and the functions performed by the Registrar and members are administrative in character.
The Application
An application must be in the prescribed form and be "given to the Registrar". It must also contain such information in relation to the matters sought to be determined as is prescribed: s.61(2). Regulation 5 of the National Native Title Regulations 1993 (Cth) prescribe, for the purposes of s.61(2), the information specified in Form 1. In the present case, the document completed by the applicant, and which he provided to the Registrar, followed Form 1.
Section 62 specifies the material to accompany applications by native title claimants.
"62(1) A native title determination application by a person or persons claiming to hold the native title in relation to an area must:
(a)be accompanied by an affidavit sworn by the applicant that the applicant:
(i)believes that native title has not been extinguished in relation to any part of the area; and
(ii)believes that none of the area is covered by an entry in the National Native Title Register; and
(iii)believes that all of the statements made in the application are true; and
(b)contain all information known to the applicant about interests in relation to any of the land or waters concerned that are held by persons other than as native title holders; and
(c)contain a description of the area over which the native title is claimed; and
(d)state the name and address of the person who is to be taken to be the claimant.
Any application under section 61 must be accompanied by any prescribed documents and any prescribed fee."
The regulations prescribe a fee of $300 for the purposes of s.62(2): reg.7. Regulation 8, which was referred to in argument in the present case, provides that the fee for an application is not payable if the person otherwise liable to pay the fee
"(a)is granted legal aid under a legal aid scheme or service:
(i)established under a law of the Commonwealth, or of a State or Territory; or
(ii)approved by the Attorney-General;
in relation to the application to which the fee relates; or
(b)is the holder of a pensioner health benefit card, a health benefit card, a pharmaceutical benefits concession card or a health care card...".
Referral to a Presidential Member
Section 63(1) provides as follows:
"63(1) If the requirements of section 62 are complied with in relation to the application, the Registrar must accept it, unless he or she is of the opinion:
(a)that the application is frivolous or vexatious; or
(b)that prima facie the claim cannot be made out."
If the Registrar is of the opinion specified in s.63(1)(a) or (b), he or she must refer the application to a presidential member: s.63(2). The role of the presidential member is dealt with in s.63(3) and (4), as follows:
"(3) If the presidential member is of the same opinion, the presidential member must:
(a)advise the applicant in writing of the fact and give the applicant a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out, as the case requires; and
(b)if the applicant so satisfies the presidential member - direct the Registrar to accept the application; and
(c)if the applicant does not so satisfy the presidential member - direct the Registrar not to accept the application.
(4)If the presidential member is not of the same opinion as the Registrar, the presidential member must direct the Registrar to accept the application."
Section 64(1) provides that, if the Registrar considers that
the requirements of section 62 are not complied with, he or she must refer the application to a presidential member: s.64(1). Section 64(2) and (3) deal with the role of the presidential member:
"64(2) If the presidential member also considers that the requirements are not complied with, the presidential member must:
(a)advise the applicant in writing of the fact and give the applicant a reasonable opportunity to satisfy the presidential member that the requirements are complied with; and
(b)if the applicant so satisfies the presidential member - direct the Registrar to accept the application; and
(c)if the applicant does not so satisfy the presidential member - direct the Registrar not to accept the application.
(3)If the presidential member considers the requirements are complied with, the presidential member must direct the Registrar to accept the application."
Accepted Applications
Section 66 is headed "Action to be taken in relation to accepted applications". Section 66(1) provides as follows:
"66(1) If an application is accepted under section 63, the Registrar must:
(a)give notice of the application to all persons whose interests may be affected by a determination in relation to the application; and
(b)if the application is a native title determination application by a person or persons claiming to hold the native title - record details of the application in the Register of Native Title Claims."
Section 66(2) states that the Registrar is taken to have given notice to all persons whose interests may be affected by a determination if the Registrar gives notice to the persons specified in the sub-section, including the "registered native title claimant", the Commonwealth Minister and any person holding a registered proprietary interest in the area covered by the application. The term "registered native title claimant" means a person whose name appears in an entry in the Register of Native Title Claims as the person who is to be taken as the claimant in relation to land or waters: s.253. As Olney J. noted in In the Matter of Native Title Act 1993; Re Associated Gold Fields NL and Alkane Exploration NL, National Native Title Tribunal, 6 February 1995, unreported, at 8, s.66(1)(b) implies that the Registrar's obligation to record details of an application arises when the application is accepted under s.63. But this implication appears to be at odds with s.190, which requires the Registrar, as soon as practicable after becoming aware of them, to include in the Register "details of any claims contained in applications given to the Registrar". (See also s.184.) We agree with Olney J., at 8, and O'Loughlin J. in Northern Territory v Lane, Federal Court of Australia, 24 August 1995, unreported, at 10-11, that the Registrar is obliged to record in the Register "details of any claims contained in the application" at the time it is given to the Registrar.
Section 66(3) provides that a notice under s.66(2) must contain the following statements:
"(a)if the application is a non-claimant application - the application will be taken to be unopposed unless the condition in subsection (4) is satisfied within the period of 2 months starting on the day the notice is given; or
(b)in any other case - a person who wants to be a party in relation to the application must notify the Registrar, in writing, within the period of 2 months starting on the day the notice is given."
The condition in s.66(4), foreshadowed in s.66(3)(a), is that a person or persons who claim to hold native title "give a native title determination application, that covers any part of the area covered by the non-claimant application, to the Registrar...". The significance of the contents of the notice required by s.66(3)(a) in respect of a non-claimant application is that, if no claimant application relating to the same area is given to the Registrar within the two month period, the non-claimant application will be taken to be unopposed: s.67. We shall return to s.67 shortly.
Section 66 appears to contain an anomaly in drafting. The obligation to give a notice under s.66(1) arises "if an application is accepted under s.63". Section 63 imposes an obligation on the Registrar to accept "the application", if "the requirements of s.62 are complied with in relation to the application". Section 62 is concerned with a "native title determination application by a person or persons claiming to hold the native title in relation to an area". That is, s.62 appears to be concerned with a claimant application, rather than a non-claimant application. Nonetheless, s.66(3)(a) contemplates that a non-claimant application is to be the subject of a notice complying with the requirements of s.66(2) and s.66(3)(a). Thus it would seem that, despite the limitations of the opening words of s.66(1), the NT Act contemplates that a non-claimant application will be accepted by the Registrar and that, when accepted, a notice must be issued. (See also s.70.)
Non-Claimant Applications
Section 67 applies to a non-claimant application: s.67(1). Section 67(2) states the effect on such an application should an application by a native title claimant be given to the Registrar within the relevant period and should the claimant application be accepted.
"(2) If:
(a)within the period specified in the notice under section 66, a person or persons claiming to hold native title give a native title determination application (the "claimant application") that covers any part of the area covered by the non-claimant application to the Registrar or to a recognised State/Territory body entitled to receive it; and
(b)the claimant application is accepted (whether initially or on appeal and whether or not within the specified period);
then:
(c)if the non-claimant application is by or on behalf of a Minister, the Crown in any capacity or a statutory authority - the non-claimant application is taken to be dismissed; or
(d)in any other case - the non-claimant application is taken, for all purposes after the claimant application is given to the Registrar, not to relate to the area covered by the claimant application."
It follows that if a claimant application relating to the area covered by a non-claimant application is made within the specified period and is ultimately accepted, the non-claimant application (if made by a public authority) is taken to be dismissed. However, where a non-claimant application is not taken to have been dismissed under s.67(2) (because no claimant application is given to the Registrar within the specified period) the application is taken to be unopposed for the purposes of s.70: s.67(4). Section 70 provides that, in the case of an application accepted under s.63 that is unopposed, the Tribunal may make a determination consistent with the terms sought by the applicant.
Unopposed Non-Claimant Applications
Other important consequences flow from the fact that a non-claimant application is taken to be unopposed. Section 24 provides as follows:
"(1)If
(a)section 67 (which deals with non-claimant applications) applies to an application in relation to an area and, under subsection 67(4), the application is taken to be unopposed;
...
the following provisions apply:
(c)any future act by any person in relation to the area that is done before the making of any approved determination of native title in relation to the area is valid;
(d)if the act mentioned in paragraph (c) extinguishes native title to any extent - the native title holders are entitled to compensation for the act in so far as it has that effect;
...".
Section 24(2) provides that the native title holders may recover compensation from the following:
"(a)if the act is attributable to the Commonwealth - the Crown in right of the Commonwealth; or
(b)if the act is attributable to a State or Territory - the Crown in right of the State or Territory."
Thus, when a non-claimant application relating to an area is unopposed, any future act done in relation to that area, before an approved determination of native title is made, is valid. If the doing of the act extinguishes native title to any extent, the native title holders are entitled to claim compensation.
THE COURSE OF EVENTS
The applicant sought to read a number of affidavits relating to events that occurred both before and after the determination of the President on 23 March 1995. Mr Douglas QC, who appeared for the second, third and fourth respondents, objected to the reception of this evidence. The Court allowed the evidence to be read subject to objection and indicated that, if necessary, the question of admissibility would be dealt with later. The following account of the course of events does not rely on the affidavit evidence upon which the applicant sought to rely.
The Non-Claimant Application
On a date not specified in the evidence, the Pipeline Authority lodged a non-claimant application in respect of the claimed areas. The purpose of the application was presumably to allow the Pipeline Authority to take advantage of s.24 of the NT Act, in the event that the application was taken to be unopposed. The application was accepted on 5 July 1994 by the Registrar, who apparently took the view that a non-claimant application is capable of acceptance under the Act. A notice containing details of the application was published, among other places, in the Koori Mail of 10 August 1994. Although the advertisement was not before us, we infer that it stated, as required by s.66(3)(a), that, if a native title determination application was not lodged within two months, the non-claimant application would be taken to be unopposed. The two month period specified by s.66(3)(a) therefore expired on 10 October 1994.
Lodging of the Claimant Application
On 10 October 1994 the applicant attended the Sydney Registry of the Tribunal. He examined open files relating to applications by the Pipeline Authority and took away a blank document application form (Form 1, contained in Schedule 1 to the Regulations). The applicant returned to the Registry shortly after 5 p.m. on the same day and sought to file a completed application form. The form was not accompanied by any affidavit. Nor did the applicant tender the prescribed fee of $300.
The form was completed as follows:
"A1.The applicant(s) applies(y) for a determination of native title. The following information, and the documents referred to in this application, are provided for the purposes of the application.
Applicant(s) Full Name(s):
DOMINIC JOSEPH KANAK
Other names, if any, applicant(s) may be known by
(WY), YUWIBARA
A2.Address(es) of the applicant(s):
42 The Glen Road, Arncliffe NSW 2205.
(161 Milton Street, Mackay, Q. 4740).
A3.Name and address for service, including a telephone number and facsimile number (if any) of the person who is to be the registered native title claimant:
Dominic (Wy) Kanak
42 The Glen Rd, Arncliffe, NSW 2205.
A4.Name and address of the representative of the applicant(s) (if any) including a telephone number and facsimile number (if any):
Aboriginal Legal Service,
Representative
[To be notified] [Body Corporate to hold trust
Native Title: Cane Factor Holdings]
Cleveland St, Sydney
Telephone 699 9277
A5.A description of the other persons with whom the applicant(s) claim(s) to hold title - if the application is made by (a) person(s) claiming to hold native title with others.
All Aborigines/Torres Strait Islanders with native/Sovereignty title interests in the land/waters named.
A6.A description of the area of land or waters covered by the application and a map showing the geographical boundaries of that area - the description must include the indigenous name of the area and sites within the area.
As advertised in Koori Mail Wednesday August 10, and at NN 44/10, open file, Schedule 4 - "Description of Land & Waters" Attachment 1.
Descriptions as per NN 94/10: Site maps, Schedule C ("C1" to "C17").
[As per NN 94/10, open file, held in Sydney NNTT].
A7.A description of all information known to the applicant(s) about interests in relation to any of the land or waters concerned that are held by persons other than as a native title body corporate.
Pipeline Authority [Details NN 94/10]
A8.Details of all searches conducted with public bodies and authorities, and of all official title registers searched, and the results of those searches, together with:
(a)a copy of any documents that record an existing or expired interest granted over any part of the area covered by the application; and
(b)a copy of the documents of title issued as evidence of the existing or expired interest.
See open file NN 94/10 - Attachment 3 of Schedule marked "D" ("D1" to "D17").
A9.Details of the native title rights and interests possessed under traditional laws and customs observed by the applicant(s) and other persons with whom the applicant claims to hold native title, including information about any connection that exists or did exist between:
(a)the applicant and the persons with whom the applicant claims to hold title, or the ancestors of the applicant and such persons; and
(b)the area covered by the application.
Where no indigenous/ATSI/Body Corporate lodges a NT claim I believe Aboriginal Torres Strait Islanders resident in the area affected should be able to be care-takers of native title held in trust through a body corporate.
The body corporate in this case is "Cane Factor Holdings", registered business name in NSW.
A10.Any details or information provided that the applicant(s) request(s) the Registrar to keep confidential from the public under the power given to the Registrar to do so under section 188, and the reasons for that request.
Privacy for personal details.
A11.An outline of the type of evidence which the applicant(s) will produce to the National Native Title Tribunal to support the claim, such as historical, anthropological and genealogical documents and oral evidence from the applicant and other people.
Written consultation records/agreements from ATSI Organisations.
A12.The name(s) of the representative Aboriginal/Torres Strait Islander body or bodies (if any) for the area covered by the claim.
. Tharawal
. Metro LALC
. Other (e.g. La Perouse LALC, Gandontara)"
The applicant was told by an officer of the Tribunal that there was insufficient detail for the application to be received over the counter. The officer also gave the absence of an affidavit, as required by s.62(1)(a) of the NT Act, as a reason for refusing to accept the application . Later on the same day the applicant forwarded the application by facsimile to the Perth Registry of the Tribunal, adding the following to
the front page of the application:
"Would you please provide in writing why this application needs more details when NNTT has file.
Please accept this application in the interim of an application with further details."
The application was accompanied by a letter from the Aboriginal Legal Service Ltd, addressed "TO WHOM IT MAY CONCERN".
This is to certify that Mr Dominic Kanak has attended the Aboriginal Legal Service in relation to legal matters that are placing him under severe financial hardship. These matters involve repayment to the Commonwealth Government of $100 per week out of an income of $471.00 per week. The debt involves an alleged overpayment of Abstudy which we intend to appeal. Mr Kanak's outgoings are as follows:
Commonwealth repayment $100.00
Rent $200 per week
Food $ 70 per week
Fares $ 50 per week
Electricity )
Phone ) $ 30 per week
Childcare fees)
Total $450.00
As indicated, the outgoings are close to Mr Kanak's income and we ask that you show leniency in respect of his outstanding debts which he is willing to pay off over a period of time.
J.S. Jude
Solicitor
2 August 1994"
This letter does not state that the applicant was in receipt of legal aid in relation to the claimant application itself. Thus the letter did not establish that the applicant was exempt from payment of the prescribed fee, pursuant to
reg.8(a).
Correspondence
On 17 October 1994 the Registrar of the Tribunal wrote to the applicant:
"I refer to the document which you submitted to the Sydney Registry on 10 October 1994.
I am unable to regard the document as an application for a determination of native title, as it does not comply sufficiently with the provisions of the Native Title Act 1993 (the Act) or the National Native Title Tribunal Regulations 1993.
[The letter then refers to s.62(1)(a) of the NT Act, the requirements specified in sections A6 and A9 of Form 1 and the terms of s.62(2) and reg.8. The letter continues:]
Within the next month, the Tribunal will hold a public Inquiry in relation to the Pipeline Authority's native title determination applications. As the applications are "unopposed" as defined by the Act, the Tribunal may make a determination in or consistent with the terms sought by the applicant if it is satisfied that:
(a)the applicant has made out a prima facie case such for a determination, and
(b)the determination is just and equitable in all the circumstances.
You are entitled to attend the Inquiry as a member of the public. If you wish to attend the Inquiry and give evidence on any matter, the Tribunal has the power to take evidence on oath or affirmation."
The letter states that, under reg.8, the exemption from the prescribed fee is available, to a person who "is granted legal aid under a legal aid scheme or service". The letter omits mention of the requirement in reg.8(a), that the grant of legal aid must be in relation to the application to which the
fee relates.
The applicant sent a further letter to the Registrar on 8 November 1994, as follows:
"Your letter of October 17 1994 has been received and I am presently organizing my affidavit for sub-section 62(1)(a) of the Act.
I am puzzled as to why NNTT needs written descriptions\maps according to Form 1 "A6" when these already exist on the NNTT's files in Sydney.
[see Open File, NN 94/10, Schedule C ("C1" to C17")]
I claim exemption for the $300.00 prescribed fee as I am in financial hardship and on the verge of applying for the Sole Parent Pension again.
A copy of the form to allow exemption from the NNTT's files inspection fee was faxed with the document submitted to Sydney Registry in October and it is on similar grounds that I apply for the prescribed fee exemption.
Presently I am waiting on correspondence confirming the currenticity of my 1994 pension card.
The Aboriginal Legal Service of Redfern is currently assisting me with a grant of legal aid so I also claim exemption under this point.
I must protest against your description of the pipeline authority's Native Title Determination Application as "unopposed". My information from staff at the Sydney Registry was that the files showed that the pipeline authority had withdrawn its application. Because of this I assumed my application was free to go in unencumbered.
In the documents presented to you I tried to explain my grounds in relation to Form 1 "A9"(a) and (b). Briefly, until I provide you with a fuller explanation, I believe that Native Title as defined and implied by the Act is not extinguished if an Indigenous person or body proposes to hold the interests in Native Title for areas of LAND/WATER under Determination.
I believe the areas of LAND/WATER referred to hold special significance for myself and other Indigenous People in the area even though the surrounding Environment has been changed by the influence of Colonization. Maintaining and Revitalizing as much of the Native Flora and Fauna of the areas under and surrounding the Determination as possible is one of the intentions of this Application. Indigenous People visiting/residing in the area have commented on the Spiritual Affinity they feel with special features in the Determination area. In expressing and preserving this Affinity we observe and carry on our Traditional Care-Taker roles for our LANDS in the name of and out of Indigenous Respect for our Ancestors/Elders.
Would you please make sure that my views and rights are considered before the proposed public Inquiry to avoid future legal challenges."
This elicited a further letter from the Tribunal's Case manager. The letter included the following comments:
"It is true that the Pipeline Authority withdrew its original application, reference number NN94/10. In its place, the Pipeline Authority lodged seventeen separate applications over exactly the same area as NN94/10, but simply broke it up into seventeen distinct geographical areas.
These applications (NN94/17-33) are "unopposed" as defined in s.67(4) of the Native Title Act 1993. That is, no claimant native title determination application covering any part of the areas covered by the non-claimant applications was given to the Registrar within the relevant two month notification period."
On 12 November 1994 the applicant forwarded by facsimile to the Perth Registry an affidavit in support of his application. The affidavit was in printed form and its operative part followed precisely the language of s.62(1)(a) of the NT Act.
The Inquiry
On 22 November 1994 a member of the Tribunal, Mr S. Flood, conducted an inquiry, pursuant to s.139(a) of the Act, into the "unopposed" non-claimant application by the Pipeline Authority. The applicant attended the inquiry and expressed
the view that the question of whether the non-claimant application was truly unopposed, having regard to his own application, should be referred to the Court on the Tribunal's own initiative as a question of law under s.145 of the NT Act. The member declined to do so, taking the view that the Registrar's certificate that the non-claimant application was unopposed was conclusive. The member made the following interim findings at the conclusion of the inquiry:
"(1)Pursuant to section 67(4) of the Act, the application is unopposed.
(2)As of this date there has not been any approved determination of native title in relation to the subject land and water....
(3)A finding that native title does not exist is not sought by the applicant.
(4)The applicant relies on section 24(1)(c) to validly obtain easements and construct its pipeline over the subject land and waters." [Emphasis in original.]
The Tribunal also noted that the applicant (the Pipeline Authority) had expressed the opinion that the acquisition of the necessary easements and construction of the pipeline was not inconsistent with native title and would not prejudice any future native title claims.
A Change of Approach
It is clear that at this stage the Tribunal regarded the applicant's application of 10 October 1994 as defective and considered that the defects in the application had not been cured by the subsequent filing of the affidavit. Since, in
the Tribunal's view, no valid claimant application had been lodged in respect of the area covered by the Pipeline Authority's non-claimant application on or before 10 October 1994, it followed that the non-claimant application was unopposed for the purposes of s.67(4) of the NT Act.
Subsequently, the Registrar decided to treat the application as having been lodged on 12 November 1994, the date the applicant filed the affidavit required by s.62(1)(a) of the NT Act. On 21 December 1994, the Tribunal's Case Manager advised the applicant that, subject to the lodging of the original of the affidavit, the Tribunal would consider the application and that details of the application had been recorded on the "Schedule of Received Applications". The letter also stated that, as the applicant had still not paid the required fee and had not established that he was exempt, the Case Manager proposed to recommend to the Registrar that the application be referred to a Presidential member under s.64, on the basis that the application did not comply with s.62 of the NT Act.
Referral to the Presidential Member
On 17 January 1995 the Registrar referred the application to the President. In the written referral, the Registrar stated that she was taking this step on the ground that the application had not been accompanied by the prescribed fee, as required by s.62(2) of the NT Act. The Registrar also referred the application on the ground that the applicant had not claimed a traditional cultural or spiritual association with the land as contemplated by Mabo v Queensland [No.2]. The Registrar gave the following reasons for reaching this conclusion:
"1.The applicant does not claim to hold native title to the land or waters. Although the application purports to be made on behalf of the applicant and others, and proceeds to describe the others as "All Aborigines/Torres Strait Islanders with Native/Sovereignty title interests in the land/waters named", the applicant does not claim a traditional cultural or spiritual association with the land as contemplated in Mabo No. 2. The applicant does not purport to be a member of the group who are stated to be the native title holders.
2.The applicant has not given any information about the native title rights and interests which are claimed. His intent is amplified in para.A9 of the application which reads as follows: "Where no indigenous/ATSI/Body Corporate lodges a NT claim I believe Aboriginal Torres Strait Islanders resident in the area affected should be able to be caretakers of native title held in trust through a body corporate" Mr Kanak then goes on to identify a business name registered in NSW as the appropriate body corporate in this instance.
This approach is consistent with the absence of a claim for native title as discussed in 1. above. However, the Act does not contemplate application being made by a person who does not claim to hold native title personally. The essential feature of native title as recognised in the Mabo judgment is the personal connection with the area held through adherence to traditional laws and customs, modified though they may be by some adaptation to western society and culture. Although it is possible that this connection may be assumed by arrogation, or assimilation, I do not consider that a person, albeit aboriginal, with no evidence of traditional connection to the land, is a competent applicant for a determination of native title where the native title interests claimed rest on mere residence and self-assumed custodianship of rights.
The supporting evidence which the applicant proposes to produce is wholly inadequate to
comply with the regulations. Paragraph A11 is answered by the following: "Written consultation records/agreements from ATSI organisations". If evidence of recognition by native title holders of the applicant's custodianship was to be produced (assuming the application could be cast in this way) then it should have been detailed or described here. There has been no attempt, either at the time of the application or subsequently, to put any material which could support the applicant's application."
The Invitation
On 1 February 1995, the President forwarded to the applicant "Reasons for Opinion on Referral of Application for Determination of Native Title". After dealing with the history of the matter, the President expressed his conclusion as follows:
"On the face of it the letter [from the Aboriginal Legal Service Ltd] does not give any indication that Mr Kanak has been granted legal aid in relation to the application. Nor is there any indication that he is the holder of a pensioner health benefit card, a health benefit card, a pharmaceutical benefits concession card or a health care card. In the circumstances, I consider that the requirements of s.62(2) of the Act have not been complied with.
The application has also been referred to me on the basis of the Registrar's opinion that prima facie the claim cannot be made out. For the reasons which were set out in the Registrar's submission, I agree with those views. Section 61 of the Act provides that a native title determination application may be made by a person or persons claiming to hold native title either alone or with others. On the face of the application there is no basis exposed upon which Mr Kanak can properly claim to be a holder of native title rights and interests.
The covering letter invited the applicant "to make written submissions to satisfy me that the application complies with
the requirements of s.62 and that a prima facie case can be made out".
It is to be noted that the last sentence of the reasons invites the applicant to show that the requirements of s.62 "have been complied with". Neither the reasons nor the covering letter make it clear whether the applicant was being invited to demonstrate that the requirement of s.62 had been satisfied on 10 October 1994 or at some other date. Nor do they suggest that it remained open to the applicant to comply with s.62(2) by paying the prescribed fee.
The Response
The applicant made two submissions in response to the President's invitation. In the first, which was undated, the applicant made a number of points, including the following:
lAn application had been given to the Registrar on 10 October 1994 and therefore it was incorrect to regard the Pipeline Authority's non-claimant application as unopposed.
lThe applicant had provided evidence to the Tribunal that he was in receipt of a social security benefit and therefore claimed a waiver of the prescribed fees. He was not able to gain the support of the Aboriginal Legal Services "because of ethical reasons".
lThe applicant declined to elaborate on reasons for his claim that he had previously supplied to the Tribunal in confidence. However, he claimed to have "a traditional cultural and spiritual association with the land".
lThe applicant claimed the "full body of native title rights and interests [comprising] food/medicine gathering; fishing and further rights to be discussed with the traditional owners".
lThe applicant objected to the description by the Registrar that he had undertaken "self-assumed custodianship of rights". He stated that "we carry out these duties of caretaker/custodianship as a matter of Kuljarul obligation and not through an act of individual selfishness".
lThe applicant believed that he had more than adequately made out a prima facie case.
In the second submission, sent on 9 March 1995, the applicant stated that he had met with the traditional owner of the "Darug link land" through which the pipeline was to run. An enclosed document referred to an organisation known as Darug Link, that was first formed in 1988 by Aboriginal people descended from the Darug tribe, who were said to be "the traditional owners of the Sydney area". The aims of Darug Link included tracing the family history of Darug people, collecting information about Darug culture and informing the wider community about the Darug and their history. The applicant claimed that Darug Link had lodged an expression of interest in native title issues with a parliamentary Committee. The applicant also extended an invitation to the President "under the direction of the traditional owners" to attend the Darug Link family reunion.
In this submission, the applicant requested that his application be amended:
"The "others" and other relevant references mentioned in the application can now be qualified by the Darug Link Group, as native title claimants; and I can now purport to be a member of that group."
The applicant explained the last sentence of this extract, in the course of oral argument before the Court, as a reference to his membership of the Darug Link Association, which he had recently joined by paying the membership fee. The applicant confirmed in argument the inference that we would have drawn in any event, namely, that he did not become aware of the connection between the Darug people and the claimed area until after he had given the application of 10 October 1994 to the Registrar.
Direction to the Registrar
On 23 March 1995, the President gave his "Reasons for Decision on Acceptance of Application for Determination of Native Title". The President's conclusion was as follows:
"I accept that Mr Kanak's submissions are sincerely put. However, there is no evidence that he is in receipt of a qualifying benefit for the purposes of waiver of the filing fee. The position remains, that he has not complied with the requirements of s.62(2) of the Act. More substantially however, nothing in his submissions, in my opinion, supports a conclusion that a prima facie claim can be made out. There is no basis disclosed on the material submitted to indicate that he is a native title holder, or indeed, any basis upon which the Darug people, to whom he refers, fall into the category of native title holders in relation to the land under claim. I do not consider that the proposed amendment should be accepted or that it would cure the position if it were. If there are Darug people who would assert native title in relation to the land the subject of this claim it is, of course, open to them to lodge their own application. I am not satisfied that the requirements of s.62 have been complied with or that a prima facie can be made out and I therefore direct the Registrar to not accept the application."
THE LEGAL ISSUES
Respondents' Submissions
Mr Douglas sought to uphold the decision of the President on three grounds.
First, the applicant had not paid the prescribed filing fee of $300 and had not shown that he was entitled, as at 10 October 1994, to a qualifying benefit that would exempt him from liability to pay the fee under reg.8. The wording of s.62(2), which requires the application to be accompanied by the prescribed fee, was mandatory. Thus, unless the applicant came within the exemptions provided by reg.8, the document lodged on 10 October 1994 could not be regarded as a native title determination application given in respect of the claimed area, for the purposes of s.67(2)(a) of the NT Act. It followed that the Pipeline Authority's non-claimant application was to be taken as unopposed, for the purposes of s.67(4) of the NT Act.
Secondly, although the President had not based his decision on the applicant's failure to file an affidavit at the same time as the application was sent to the Perth Registry on 10 October 1994, his Honour had treated as correct the Registrar's actions in treating a valid application as having been made only from 12 November 1994, the date of filing the affidavit. Mr Douglas argued that the application made on 10 October 1994 was deficient, in that it was not accompanied by an affidavit, as required by s.62(1)(a). Mr Douglas submitted that the requirement in s.62(1)(a) that the application be accompanied by an affidavit was mandatory. Mr Douglas' primary position was that the application and affidavit had to be filed at the same time and, if this was not done, the application was irrevocably defective. Alternatively, Mr Douglas submitted that the approach taken by the President was correct and that the application was to be treated as received on 12 November 1994, the day the affidavit was filed. In the latter case the non-claimant application would have been unopposed for the purposes of s.67(4), because no claimant application had been given to the Registrar by 10 October 1994.
Thirdly, Mr Douglas submitted that the President had correctly concluded that the applicant had not shown that a prima facie claim could be made out, and therefore had correctly directed the Registrar under s.63(3)(c) not to accept the application. The applicant had not shown that he could satisfy the necessary test of the maintenance of a traditional connection with the land, as required by Mabo v Queensland [No.2]. Moreover, there had been no evidence adduced in relation to the Darug Link Group to show that its members had the necessary ongoing physical connection with the land.
Giving and Accepting an Application
Part 3 of the NT Act clearly distinguishes between an applicant giving a native title determination application to the Registrar and the acceptance of that application by the Registrar. As Olney J. said in Associated Gold Fields, at 8:
"It is patent that the Act contemplates that the giving of an application to the Registrar and the acceptance of the application are two separate acts, and will not necessarily be contemporaneous. Indeed the fact that the Registrar is required to form a view as to whether the application complies with s 62 and whether or not it is frivolous or vexatious and whether prima facie a claim can be made out is clearly indicative of the fact that the Registrar will inevitably become aware of a claim to native title being made in an application given to the Registrar before the application is accepted."
Sections 62, 63 and 64 expressly contemplate three situations occurring in relation to a claimant application:
lThe first is that the application is lodged, the requirements of s.62 are complied with and the Registrar does not form the opinion that the application is frivolous or vexatious or that prima facie the claim cannot be made out. In these circumstances, s.63(1) requires the Registrar to accept the application.
lThe second is that an application is lodged and the requirements of s.62(1) are complied with, but the Registrar forms the view that the application is frivolous or vexatious or prima facie cannot be made out. In these circumstances, s.63(2) requires the Registrar to refer the application to a presidential member. The presidential member must then take the steps specified in s.63(3) and s.63(4).
lThe third is that an application is lodged, but the Registrar considers that the requirements of s.62 are not complied with. In these circumstances, the Registrar must refer the matter to a presidential member, who must act in accordance with s.64(2) and s.64(3).
Part 3 does not expressly deal with the situation where the Registrar forms the view both that the requirements of s.62 are not complied with and (for example) that prima facie the claim cannot be made out. However, there is no reason to doubt that in this situation (as ultimately occurred in the present case) the Registrar can and indeed should refer the application to a presidential member under both s.63(2) and s.64(1).
In the first situation that we have identified a delay will occur between the claimant application being given to the Registrar and its acceptance. This is because the Registrar must make a judgment as to whether the requirements of s.62 are complied with and whether he or she should form either of the opinions referred to in s.63(1)(a) or (b). Of course, in a clear case the delay could be very short, since it will be readily apparent that the formal requirements are met and that the application cannot be regarded as frivolous or vexatious or prima facie not able to be made out. In Re Waanyi People's Application, at 112, the President understood that the words "prima facie" in relation to the Registrar's function under s.63 bore the ordinary meaning of "arising at first sight" or "based or founded on first impression". Assuming that this is correct, the Act nonetheless draws a distinction between giving the application to the Registrar (s.61(2)) and the Registrar deciding to accept it (s.63(1)). The distinction between the applicant giving the application and its acceptance is even clearer when the application is referred to the presidential member who must decide whether to direct the Registrar to accept it (s.63(3)(c), s.63(4), s.64(2)(c), s.64(3)). Of necessity in this situation, there must be a delay, perhaps quite lengthy, between the giving of the application and a direction to the Registrar that it be accepted.
The distinction between the application and the decision to accept it is embodied in s.67(2) itself. A non-claimant application made by a public authority is taken to be dismissed if a claimant application is made over the claimed land within the specified period and that application is accepted, whether initially or on appeal and whether or not within the specified period. Thus s.67(2) contemplates that the initial event which makes the non-claimant application (if made by a public authority) liable to dismissal, is the giving of a claimant application to the Registrar. If the claimant application is ultimately accepted, regardless of when that occurs, the non-claimant application is taken to be dismissed.
Scheme of the Act
Mr Douglas' argument is essentially that a document which is given to the Registrar is incapable of constituting a claimant application if the document does not comply with the requirements of s.62(1) and s.62(2). But this submission does not do justice to the statutory process to be followed where the Registrar considers that the requirements of s.62 have not been complied with. In particular, the submission does not do justice to the distinction drawn by the legislation between giving an application to the Registrar and determining that it should or should not be accepted.
If the Registrar forms the opinion that the requirements of s.62 have not been met, he or she must refer the "application" to a presidential member: s.64(1). In using this word in relation to an application which is, ex hypothesi, considered not to be in conformity with the requirements of s.62, s.64(1) suggests that an application does not lose its status as such by reason of non-compliance with s.62. More importantly, when the application is referred under s.64(1), the first question to be addressed by the presidential member is whether the requirements of s.62 "are not complied with". The introductory words to s.64(2) do not say that the presidential member is to consider whether the requirements of s.62 were or have been complied with. Still less do they say that the presidential member is to consider whether the requirements were met on the date the application was given to the Registrar. The language strongly suggests that the question is to be answered by considering the circumstances at the time the presidential member makes the necessary judgment.
The same language is employed in s.64(2)(a). The presidential member, having formed the opinion referred to in the opening words of s.64(2), must advise the applicant in writing of that fact and give the applicant a reasonable opportunity to satisfy the presidential member that "the requirements are complied with". The use of the present tense strongly suggests that the presidential member is not to be confined to considering whether the application complied with the requirements in s.62 at the time it was lodged. Rather, he or she is to consider whether the requirements are complied with at the time the application is under consideration following its referral by the Registrar.
This view is consistent with the approach adopted by s.63(3) of the NT Act. Where an application is referred to the presidential member under that sub-section, on the ground that the application is frivolous or vexatious or that prima facie the claim cannot be made out, the member must give the applicant a reasonable opportunity to satisfy him or her that the application is not frivolous or vexatious or that a prima facie claim can be made out: s.63(3)(a). Clearly that opportunity is not limited to addressing or relying on material that was referred to in the application. In Re Waanyi People's Application, at 116, the President summarised the position as follows:
"6.The applicants are not obliged to lodge evidence in support of the application to make out a prima facie case.
7.The registrar may, but is not obliged to, make inquiries or receive information to determine whether it can be said at the outset that a claim could not be made out. These inquiries may include land tenure and land tenure history searches and receiving advice on the plausibility of a claim from an anthropological perspective.
8.The presidential member to whom an application is referred by the registrar will apply the same test as the registrar applies under s.63(1)(a) in deciding whether or not he or she is of the same opinion as the registrar. The presidential member may, however, find that prima facie a claim cannot be made out on grounds other than or additional to those relied upon by the registrar.
9.An applicant who is invited, under s.63(3), to show the presidential member that a prima facie claim can be made out must show that evidence exists or can be obtained which is capable of establishing each of the elements of native title. It does not require production of the evidence itself.
...
13.The issues to be addressed by the presidential member in deciding whether a prima facie claim can be made out are not limited to those upon which the registrar formed the opinion that prima facie a claim could not be made out.
14.The issues to be addressed by the applicants for the purpose of showing that a prima facie claim can be made out will be:
(a)the existence or availability of evidence capable of justifying a finding (extinguishment apart) that native title exists;
(b)the effect of the known land tenure history on the continuance of native title."
In that case, additional evidence was in fact adduced on behalf of the applicants at an oral hearing: Re Waanyi People's Native Title Application (1995) 129 ALR 118, at 125.
The scheme of Part 3, in our view, is that the requirements in s.62 must be complied with by an applicant, but a non-complying applicant is to be given an opportunity to rectify the position. If, for example, the application does not contain all information known to the applicant about interests over the claimed land (s.62(1)(b)), the applicant is to be given an opportunity to remedy the deficiency before the presidential member can direct that it not be accepted. The "sanction" for non-compliance with the formalities specified in s.62 is not that the application loses the status it otherwise would have had as an application for the purposes of the Act. It is only if the applicant fails to satisfy the presidential member that the requirements of s.62 "are complied with" that the application will be subject to a direction that it not be accepted.
In our view, this construction accords with the objectives of the NT Act, as recorded in the preamble to the Act. The preamble recognises the disadvantaged status of Aboriginal people as a group and the need for a special procedure for the just and proper ascertainment of native title. The legislation is clearly remedial in character and thus should be construed beneficially, so as to give the most complete remedy which is consistent with the actual language employed: Bull v Attorney-General (NSW) (1913) 17 CLR 370, at 384, per Isaacs J.; Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622, at 638. It is therefore appropriate to adopt a construction that avoids harsh consequences flowing from a failure to observe procedural requirements specified in the Act. It is not consistent with the objectives of the legislation to hold that an application form given to the Registrar has no effect as an application, merely because of non-compliance with some of the requirements of s.62. This is not to say that compliance with those requirements is unimportant. On the contrary it is essential. However, before an application suffers the fate of not being accepted, the applicant is to be afforded a reasonable opportunity of remedying the deficiency and satisfying the presidential member accordingly.
This does not mean that an applicant has an open-ended opportunity to take the steps necessary to ensure that the requirements of s.62 are complied with. What s.64(2)(a) requires is that the presidential member provide a reasonable opportunity to satisfy him or her that the statutory requirements are complied with. If a reasonable opportunity is provided and the applicant continues not to comply with the requirements, it is open to the presidential member not to be satisfied that the requirements are satisfied and to make a direction accordingly.
It follows that the fact that a claimant application does not comply with the requirements of s.62 does not prevent the application being "given to the Registrar" for the purposes of the NT Act (s.61(2)). In particular, non-compliance with those requirements does not prevent the application constituting a native title determination application for the purposes of s.67(2)(a). Of course it is only if the claimant application is ultimately accepted, as required by s.67(2)(b), that the non-claimant application in respect of the same land (if made by a public authority) is taken to be dismissed.
It also follows that neither the Registrar nor the Tribunal has power to reject an application "given to the Registrar" simply because it does not comply with s.62 or, for that matter, because it appears to be frivolous or vexatious. There may be a threshold question as to whether a particular document satisfies the description of an "application". However, where a document in the form prescribed is completed and given to the Registrar, apparently in good faith, the consequences of non-compliance with the requirements in s.62 are to be determined in accordance with the procedures laid down in the NT Act itself. Those procedures do not include summary rejection at the counter.
Counter Rejection
We now turn to the procedural circumstances of the present case. As events have transpired, the "counter rejection" of the claimant application on 10 October 1994 has assumed no significance in the case. Mr Douglas did not dispute that, but for the failure to comply with the requirements of s.62, the applicant had given the application to the Registrar on 10 October 1994, by means of the facsimile transmission to the Perth Registry. Nor did the Tribunal take a different view. However, as we have already said, it was not open to the staff of the Tribunal to reject the application over the counter simply on the ground that it did not comply with s.62. Nor was it open to the staff of the Tribunal to reject the application over the counter on the ground that it was frivolous or vexatious. If an applicant lodges an application in the prescribed form, the procedure to be followed if it is thought not to comply with s.62 or is frivolous or vexatious is that set down in ss.63 and 64 of the NT Act.
The Affidavit
We do not think that the failure of the applicant to file an affidavit on 10 October 1994, in compliance with s.62(1), constituted a ground for the President to direct the Registrar not to accept the application. As we have said, the President did not rely on this ground, but Mr Douglas did. The President was entitled to direct the Registrar not to accept the application on the ground of non-compliance with s.62(1)(a). However, he was only entitled to do this after he had given the applicant a reasonable opportunity to show that the requirements had been complied with and he was not satisfied that they had been. For the reasons we have given, the "reasonable opportunity" included an opportunity for the applicant to rectify any deficiency relating to the absence of an affidavit, by filing an affidavit in the appropriate form. In fact, the applicant filed an affidavit on 12 November 1994, well before he received the reasons of 1 February 1995 from the President, inviting him to make written submissions. Thus, in our opinion, the failure to file the affidavit on 10 October 1994 did not provide a ground for the President to direct the Registrar not to accept the application.
Nor do we think that Mr Douglas' alternative submission is correct. The fact that the application lodged on 10 October 1994 was unaccompanied by an affidavit did not prevent the application being "given to the Registrar" for the purposes of s.61(2) of the NT Act. In the absence of some other ground of invalidity, the application was given to the Registrar for the purposes of the NT Act on 10 October 1994. It was not given to the Registrar on 12 November 1994, the date the applicant filed the supporting affidavit. The latter was merely the date the failure to comply with the requirements of s.62(1)(a) was rectified.
Non-Payment of the Fee
The failure of the applicant to pay the prescribed fee raises a different issue. By the time the President gave the direction to the Registrar not to accept the application, the applicant had not paid the prescribed fee. Nor had the applicant demonstrated to the President that he was not liable to pay the prescribed fee by reason of either reg.8(a) or (b) of the National Native Title Tribunal Regulations. The applicant maintained in his submission that he was in receipt of a social security benefit and therefore entitled to an exemption. However, he did not support that claim by specific evidence.
Section 64(2) of the NT Act obliges a presidential member who considers that the requirements of s.62 have not been met to advise the applicant in writing of that fact and to give the applicant a reasonable opportunity to satisfy the member that the requirements are complied with. In our view, considering the matter on 1 February 1995, the date of the President's reasons on the referral of the application, the applicant could have shown compliance with the requirements of s.64(2) in either of two ways:
lthe applicant could simply have paid the prescribed fee of $300, as required by s.61(2); or
lthe applicant could have adduced evidence to demonstrate that, as at 10 October 1994, he had been granted legal aid in relation to the application under the NT Act or that, on that date, he held one of the cards identified in reg.8(b).
The second alternative construes reg.8 as intended to confer an exemption from liability to pay the prescribed fee only where the applicant satisfies one of the specified criteria on the date the application is given to the Registrar. We think this is the correct construction, since the regulation is framed on the assumption that a person giving an application is "liable to pay the fee". That liability must arise on the date the application is given to the Registrar. Moreover, it would create considerable difficulties if, for example, the fact that a person became entitled to a health benefit card at some stage after lodgement of the application created an exemption from the liability to pay the prescribed fee. Entitlements of this kind often continue only for short periods. It would be curious if entitlement to a card for a period of, say, a few weeks, well after the application was given to the Registrar, exempted an applicant from liability to pay the fee.
The President's reasons of 1 February 1995 noted that the applicant had not paid the prescribed fee. They referred to the fact that the letter from the Aboriginal Legal Service Ltd gave no indication that the applicant had been granted legal aid. The reasons also pointed to the absence of any evidence that the applicant "is the holder" of any of the cards identified in reg.8(b). The reasons concluded with an invitation to the applicant to make submissions to satisfy the President that the requirements of s.62 "have been complied with". The invitation did not advise the applicant that he could comply with the requirements of s.62(2) by paying the prescribed fee during such reasonable period as the President was prepared to permit.
In our view, the statutory obligation created by s.64(2)(a) will be met only where an applicant is advised, with reasonable clarity, what he or she must do in order to satisfy the presidential member that the requirements of s.62 are complied with. As we have said, the NT Act is remedial legislation and should receive a beneficial construction. Not all applicants will be legally represented or have the means to obtain advice. Some may simply prefer to pursue claims without external assistance, even where that assistance is available to them. Having regard to the objectives of the legislation, a "reasonable opportunity" implies that the applicant is entitled to know what steps he or she must take before the presidential member would be prepared to direct the Registrar to accept the application.
The reasons of the presidential member did not advise the applicant that he could comply with the requirement in s.62(2) to pay the prescribed fee, by making the payment within such reasonable period as the President determined was appropriate. The reasons communicated to the applicant, on a fair reading, did not notify him that this alternative was open. On the contrary, the references to reg.8 suggested that the applicant could satisfy the President that the requirements of s.62(2) were complied with only by demonstrating that he was exempt from liability to pay the fee. Moreover, the applicant was invited to make submissions to satisfy the President that s.62 was complied with. He was not told that he could satisfy s.62(2) by taking a particular course of action. In our opinion the applicant was entitled to know that, if he could not satisfy the terms of reg.8, he could comply with s.62(2) by paying the fee. The fact that he was not given this information means that he was not given the "reasonable opportunity" contemplated by s.64(2)(a).
If it were necessary to decide the matter, we would take the view that the failure to conform with the obligation imposed by s.64(2)(a) would justify setting aside the direction to the Registrar not to accept the application. As we have said, the presidential member's power to give such a direction under s.64(2)(c) only arises after the applicant has been accorded a reasonable opportunity to satisfy that presidential member that the requirements of s.62 are complied with. However, in this case, another ground was available to justify the direction to the Registrar not to accept the application. To this we now turn.
Prima facie claim
The second ground upon which the President directed the Registrar not to accept the application was that he had not been satisfied that a prima facie claim could be made out on behalf of the applicant. Accordingly, his Honour gave a direction under s.63(3)(c) of the NT Act not to accept the application. No issue arises as to whether the applicant was given a reasonable opportunity, as required by s.63(3)(a), to satisfy the presidential member that a prima facie claim could be made out. Clearly the applicant was given such an opportunity, and availed himself of it.
"Native title" is defined in s.223(1) to mean, relevantly, the communal, group or individual rights and interests of aboriginal peoples in relation to land or waters where, inter alia, "the rights and interests are recognised by the common law of Australia". An application for determination of native title, under s.13(1), may be made by "a person or persons claiming to hold the native title either alone or with others": s.61(1), column 3, para.(1). It follows that an application under para.(1) can be made only by a person or persons who claim to hold "the native title". The term "claim", as used in the phrase "prima facie claim" in s.63(3), is not defined. However, it is clearly intended to refer to an application made under s.13(1) for a determination of native title. Since such an application can only be made by a person or persons claiming to hold native title, the applicant must make out a prima facie claim that he holds native title, as defined in s.223(1). Thus, the applicant must satisfy the presidential member that a prima facie claim can be made out that the applicant is a person entitled to rights and interests in relation to the land and waters claimed, that are recognised by the common law of Australia. The common law for these purposes is authoritatively laid down by the High Court in Mabo v Queensland [No.2].
In Mabo v Queensland [No.2] Brennan J., with whom Mason C.J. and McHugh J. agreed, identified (at 25) the chief question in the case, albeit somewhat "oversimplified", as whether the annexation of the Murray Islands and their incorporation into Queensland in 1879 had the effect of vesting in the Crown absolute ownership of, legal possession of and exclusive power to confer title to all land in the Murray Islands. It was common ground between the parties, and accepted by Brennan J. (at 30), that the Imperial Crown acquired sovereignty over the Murray Islands on 1 August 1879, and that the laws of Queensland, including the common law, became the law of the Murray Islands on that day. It was also accepted that, under the common law, the Crown acquired an ultimate or radical title to the Murray Islands.
Brennan J. considered (at 48-49) that the
"notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown's purposes. ...But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognised by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the unoccupied land.... The English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant."
Brennan J. referred (at 49-50) to the variable nature of native title to land capable of recognition by the common law. In Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399, at 403, Viscount Haldane, speaking for the Privy Council, had identified a "very usual form of native title [as] that of the use of usufructuary right" which may burden the radical title of the Sovereign. In Amodu Tijani at 403-404, Viscount Haldane had also recognised that the native title may not be that of an individual, but of a community, which has "the possessory title to the common enjoyment of a usufruct".
Brennan J. concluded (at 51) that the common law recognised "traditional proprietary community title". The fact that individual members of the community might enjoy usufructuary rights that were not proprietary in character was no impediment to the recognition of a proprietary communal title. His Honour (at 52) said this:
"That being so, there is no impediment to the recognition of individual non-proprietary rights that are derived from the community's laws and customs and are dependent on the community title. A fortiori, there can be no impediment to the recognition of individual proprietary rights.
Once it is accepted that indigenous inhabitants in occupation of a territory when sovereignty is acquired by the Crown are capable of enjoying - whether in community, as a group or as individuals - proprietary interests in land, the rights and interests in the land which they had theretofore enjoyed under the customs of their community are seen to be a burden on the radical title which the Crown acquires."
Brennan J. later considered the nature and incidents of native title. A number of propositions emerge from the analysis (at 59):
lNative title has its origins in, and is given its content by, the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory.
lThe nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.
lUnless the pre-existing laws of the territory over which the Crown acquires sovereignty provide for the alienation of land as to strangers, the rights and interests constituting native title can be possessed only by the indigenous inhabitants and their descendants.
Importantly for present purposes, Brennan J. (at 59-60) explained the connection with the land for native title to be recognised:
"Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared.... Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so)."
His Honour also addressed the nature of the remedies available to protect native title. In that context his Honour made the following observations (at 61-62):
"so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs as currently acknowledged and observed....
[W]here an indigenous people (including a clan or group), as a community, are in possession or are entitled to possession of land under a proprietary native title, their possession may be protected or their entitlement to possession may be enforced by a representative action brought on behalf of the people or by a sub-group or individual who sues to protect or enforce rights or interests which are dependent on the communal native title. Those rights and interests are, so to speak, carved out of the communal native title....A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community's lands."
Brennan J., when summarising the common law of Australia with reference to land titles (at 70), included the following propositions:
"6.Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connexion with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains. Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people.
Native title to an area of land which a clan or group is entitled to enjoy under the laws and customs of an indigenous people is extinguished if the clan or group, by ceasing to acknowledge those laws, and (so far as practicable) observe those customs, loses its connexion with the land or on the death of the last members of the group or clan."
Deane and Gaudron JJ., in their joint judgment, held (at 86-87) that the radical title in land vested in the Crown was, at common law, burdened to the extent necessary to recognise and protect pre-existing native title. Their Honours said (at 88) that the
"content of such a common law native title will, of course, vary according to the extent of the pre-existing interest of the relevant individual, group or community. It may be an entitlement of an individual, through his or her family, band or tribe, to a limited special use of land in a context where notions of property in land and distinctions
between ownership, possession and use are all but unknown. In contrast, it may be a community title which is practically 'equivalent to full ownership'".
Their Honours summarised the position as follows (at 109-110):
"Ordinarily, common law native title is a communal native title and the rights under it are communal rights enjoyed by a tribe or other group....The traditional law or custom is not, however, frozen as at the moment of establishment of a Colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land.
The rights of an Aboriginal tribe or clan entitled to the benefit of a common law native title are personal only.... They can be voluntarily extinguished by surrender to the Crown. They can also be lost by the abandonment of the connexion with the land or by the extinction of the relevant tribe or group. It is unnecessary, for the purposes of this case, to consider the question whether they will be lost by the abandonment of traditional customs and ways. Our present view is that, at least where the relevant tribe or group continues to occupy or use the land, they will not.
The personal rights conferred by common law native title do not constitute an estate or interest in the land itself...".
It follows from these passages that the content of native title recognised by Mabo [No.2] is determined by the laws and customs of the indigenous inhabitants. But it is essential that there be an identifiable community, which has retained the requisite connection or association with the land claimed since the time the Crown acquired the radical title to the land. In order for native title to survive, there must have been an appropriate relationship between a particular clan or other group and the land. The precise nature of that relationship has not yet been authoritatively determined. However, the judgments refer to enjoyment of the land by the clan or group and appear to contemplate some continuing physical connection or association: see Coe v The Commonwealth, (1993) 68 ALJR 110, at 119, per Mason CJ. Whatever the nature of the association, however, native title can be enjoyed only by members of an identifiable community who are entitled to enjoy the land under the traditionally based laws and customs, as currently acknowledged and observed, of that community. Individuals may have native title rights that are protected, but these rights are dependent upon the existence of communal native title and are "carved out" of that title. The only persons entitled to claim native title are those who can show biological descent from the indigenous people entitled to enjoy the land under the laws and customs of their own clan or group. (An adoptive relationship perhaps may be enough; but that is not a question which must be decided in this case.)
The Applicant's Claim
We have referred to the materials and submissions made by the applicant to the President. The applicant elaborated upon these in his oral submissions to the Court. He did so in a careful and helpful manner. Like the President, we accept the sincerity of his beliefs.
It is clear that the applicant does not claim, whether by biological descent or by adoption, to be a member of a clan or group which has had, or may have had, a connection or association with the claimed areas sufficient to found a native title claim. At the time the application was lodged, the applicant did not know of the Darug people, who were said by him to have a sufficient connection with the claimed area for this purpose. The applicant's relationship with the Darug People is limited to his financial membership of the Darug Link Association Inc., which occurred after the date the application was lodged. He does not claim biological descent to, or an adoptive relationship with, the Darug people who, according to his submissions, were entitled to enjoy the claimed areas under their own laws and customs.
The application was originally made by the applicant on behalf of "all Aborigines/Torres Strait Islanders with Native/ Sovereignty Title Interests in the Land/Waters named". The application was lodged because of the applicant's belief that any Aboriginal people resident in (or presumably near) the area affected should take steps to acquire the land as caretakers for those Aboriginal groups or people holding traditional native title, even if those groups or people cannot be identified. The applicant proposed that this caretaker role be achieved through a trust mechanism, using a body corporate or entity he had formed for the purpose. When the applicant become aware of the existence of the Darug Link Group, he applied to amend his claim so that, in effect, the land would be held in trust for the Darug People.
We accept that the applicant considers himself obliged to act as a custodian of lands to which other Aboriginal people have a physical, cultural or spiritual association. The words in s.61(1) - "[a] person...claiming to hold the native title" - however broadly construed, do not extend to such an applicant. Nor do the words in s.61(1) - "[a] person who holds an interest in relation to the whole of the area in relation to which the determination is sought" - apply to the applicant. Section 253 states that the word "interest" in relation to land or waters, means:
"(a)a legal or equitable estate or interest in the land or waters; or
(b)any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(i)the land or waters; or
(ii)an estate or interest in the land or waters; or
(c)a restriction on the use of the land or waters, whether or not annexed to other land or waters;"
The applicant did not claim to be the holder of an interest so defined.
The applicant's application and subsequent submissions demonstrated quite clearly that he had no relevant connection with the people who may be entitled to enjoyment of the claimed area under traditional laws and customs. It follows that the applicant was unable to satisfy the President that a prima facie claim could be made out that he holds native title in relation to the claimed areas, either alone or with others.
As the President noted, subject to the effect of s.124 of the NT Act, there is no impediment to the Darug People or indeed any other group able to establish the requisite connection with the claimed areas, from making an application for determination of native title under the NT Act.
We have not found it necessary to address the construction of the phrase "prima facie", as used in s.63(3)(a). Nor have we found it necessary to consider the nature of the appeal under s.169(2) of the NT Act. Whatever view is taken of these matters, the applicant cannot establish any error of fact or law in the determination made by the President under s.63(3) of the NT Act. To the extent that it is relevant, there is nothing in the additional material sought to be adduced by the applicant which alters this conclusion. On the contrary, it reinforces the view that the applicant is unable to show that a prima facie claim can be made out that he holds native title. Therefore, it is unnecessary to make a ruling on the admissibility of the evidence sought to be adduced by the applicant.
We should add that, after the hearing of the appeal had concluded, the applicant filed a notice of motion seeking to adduce further evidence in relation to the appeal. None of the material referred to by the applicant bears on the issues dealt with in this judgment. Accordingly, we do not propose to receive any further evidence in relation to the appeal.
CONCLUSION
The Court affirms the decision of the President and otherwise dismisses the appeal.
As the applicant has succeeded before us on some substantial issues, he should not have to bear any of the costs of the second, third and fourth respondents. Accordingly, there should be no order for the costs of any party.
I certify that this and the preceding
59 pages are a true copy of the Reasons
for Judgment of the Court.
Dated:
Associate:
Heard:28 September, 1995
Place: Sydney
Decision:27 October, 1995
Appearances: The applicant appeared on his own behalf.
The first respondent entered a submitting appearance.
Mr F.M. Douglas QC appeared for the second, third and fourth respondents. He was instructed by Deacons Graham & James, Solicitors, in relation to the second respondent, and by Mallesons Stephen Jacques, solicitors, in relation to the third and fourth respondents.
0
0