Keating v Native Title Registrar

Case [2023] FCA 137

FEDERAL COURT OF AUSTRALIA

Keating v Native Title Registrar [2023] FCA 137  

File number(s): QUD 152 of 2022
Judgment of: COLLIER J
Date of judgment: 1 March 2023
Catchwords:  NATIVE TITLE – application for native title determination – application for review of decision of Native Title Registrar to refuse application for registration under s 190A of the Native Title Act 1993 (Cth) – application for extension of time granted where the applicant has sufficient explanation as to delay –– consideration of requirements for registration of native title – application dismissed
Legislation:

Native Title Act 1993 (Cth)

Federal Court Rules 2011 (Cth)
Cases cited:

Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales [2017] FCA 76

Singh v Minister for Immigration and Border Protection [2017] FCAFC 195

Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652
Division: General Division
Registry: Queensland
National Practice Area: Native Title
Number of paragraphs: 49
Date of hearing: 19 September 2022
Counsel for the Applicant: The applicant appeared in-person
Counsel for the First Respondent: Ms M Barnes
Solicitor for the First Respondent: Crown Law
Table of Corrections
1 March 2023

All references to “second delegate” have been replaced with “Member of the Native Title Tribunal”

ORDERS

QUD 152 of 2022
BETWEEN:

ANN-MARIE KEATING

Applicant
AND:

NATIVE TITLE REGISTRAR

First Respondent

STATE OF QUEENSLAND

Second Respondent

ORDER MADE BY:

COLLIER J

DATE OF ORDER:

1 MARCH 2023

THE COURT ORDERS THAT:

1.The applicant’s application filed 21 April 2022 be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

COLLIER J:

INTRODUCTION

  1. On 21 April 2022 the applicant filed an application for review of a decision of a Member of the Native Title Tribunal to refuse registration of the applicant’s native title determination application made on behalf of the Wallara People, clan of the Kolo-Muluridji (substantive application). The substantive application was filed pursuant to s 190F of the Native Title Act 1993 (Cth) and rule 34.109 of the Federal Court Rules 2011 (Cth).

  2. It is common ground that the substantive application was filed out of time. On 4 August 2022 the applicant filed an interlocutory application under r 1.39 of the Federal Court Rules seeking an extension of time in which to file the substantive application.

  3. The applications came before me for hearing together.

  4. At the hearing, the State took no issue with the reason for the applicant’s delay in filing the substantive application, and conceded that there was no prejudice to be suffered by the State in respect of the late filing. In the circumstances, noting that the applicant was a litigant in person and had provided evidence explaining the delay, I was of the view that it was in the overall interests of justice to grant the applicant an extension of time: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]. The parties proceeded to make submissions on the substantive…

Continue reading Keating v Native Title Registrar

Sign in free to access the full text

Details
AGLC
Keating v Native Title Registrar [2023] FCA 137
Case
[2023] FCA 137
Decision Date

CaseChat Overview and Summary

The applicant, on behalf of the Wallara People, clan of the Koko-Muluridji, filed a Native Title Determination Application in 2021 seeking registration of their claim over a 995 square kilometre area of land and waters in Northern Queensland. The application was refused by the Native Title Registrar and the refusal was upheld following reconsideration by a Member of the Native Title Tribunal. The applicant then applied to the Federal Court for judicial review of the Tribunal’s decision. The court was required to determine whether the Tribunal’s decision was lawful and whether the applicant's claim satisfied the requirements of the Native Title Act 1993 (Cth) for registration of native title.

The court found that the claim area was not described with reasonable certainty, and that there was insufficient evidence of traditional laws and customs that give rise to native title rights and interests and that have been observed by a sufficient number of contemporary claimants. The court noted that the evidence provided by the applicant was at a high level of generality and did not provide information about the transmission of traditional rights and interests, the identification of elders, or any restrictions on the receipt of such knowledge. The court concluded that the application for review must fail and dismissed the application.

The court dismissed the applicant’s application for review and made no further orders. The decision provides guidance on the requirements for registration of native title claims and the standard of evidence required to satisfy the registration test.

Orders

Orders of the court

1. The applicant’s application filed 21 April 2022 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Given that the applicant has been granted an extension of time, the balance of the relief sought by the applicant was as follows:…2.On the grounds set out in the accompanying affidavit, have the application determined by the court under s. 35A (7) (b) Federal Court of Australia Act 1976.3.Such further orders as the Court considers appropriate.BACKGROUND On 7 July 2021 the applicant filed a Native Title Determination Application on behalf of the Wallara People, clan of the Koko-Muluridji (Wallara Claim). The claim area identified in the Wallara Claim comprises 995 square kilometres of land and waters in Mareeba Shire Council, Northern Queensland. Notably, the claim area overlaps with three other native title determination applications, namely:·Two native title claims on the Register: QUD398/2015 Djabugay-Bulway-Yirrgay-Nyakali-Guluy People and QUD692/2016 Cairns Regional Claim Group, and·One non-claimant application: QUD413/2015 Arcella Family Investments Pty Ltd. On 25 August 2021 a delegate of the Native Title Registrar refused to accept the Wallara Claim for registration. On 6 October 2021 the applicant applied for reconsideration of that decision. Accordingly, a Member of the Native Title Tribunal (the Member) heard the application de novo. On 14 December 2021 the Member found that the Wallara Claim did not satisfy all of the conditions set out in ss 190B-190C of the Native Title Act and refused registration (Registration Decision). On 21 April 2022 the applicant applied for review in this Court.REGISTRATION DECISION Given that there have been two separate decisions concerning the Wallara Claim, it is convenient to refer to the decision-maker in respect of the present application as the Member. Before the Member the applicant sought reconsideration of the Wallara Claim on the basis that the claim group:·Asserted native title rights and interests to the claim area;·Had a continuous connection to the claim area; and·Had no connection to the claims on the Register. The Member referred to the reconsideration materials and noted that they included a statement asserting a complex history of family conflict between various individuals and groups. The Member also noted that there were extensive non-contested findings of the first delegate, and that conditions of the registration test had been met referable to ss 190B (3), 190B (4), 190B (8), 190B (9), 190C (2) and 190C (5) of the Native Title Act. In relation to other conditions forming part of the registration test, the Member found, in summary, as follows. Section 190B (2) of the Native Title Act provides that the Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2) (a) and (b) of the Native Title Act are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters. The Member noted that the Native Title Tribunal conducted a geospatial assessment of the claim area, which assessment was provided on 20 October 2021. The outcome of that geospatial assessment was that the claim area as described in the Wallara Claim was not described with reasonable certainty for the purposes of s190B (2). The Member continued:24.On the basis of that relevant information (see also my comments at [50] and [60] below), and given there was nothing in the reconsideration materials or the additional information provided on 5 November 2021 to displace the geospatial assessment, I am not satisfied there is sufficient information to be clear what areas are excluded from the claim area.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Sixth, I agree with the submission of the State that the Wallara Claim does not provide adequate evidence of the Wallara people’s traditional laws and customs, how those laws and customs give rise to native title rights and interests, and how the laws and customs have continued to be observed by a sufficient number of contemporary claimants to allow the court to be satisfied of the matters in sections 190B (5), (6) and (7). Such evidence as is provided by the applicant is either in the form of assertions or at a high level of generality, without information about such matters as the way in which traditional rights and interests were transmitted, what those traditional rights and interests were, how knowledge is conveyed to members of the claim group, how members in the claim group can be identified as elders, and any restrictions on receipt of such knowledge. CONCLUSION For the reasons I have outlined above, the applicant’s application for review must fail.

Ratio Decidendi

Legal Principle Established

On 21 April 2022 the applicant applied for review in this Court.REGISTRATION DECISION Given that there have been two separate decisions concerning the Wallara Claim, it is convenient to refer to the decision-maker in respect of the present application as the Member. Before the Member the applicant sought reconsideration of the Wallara Claim on the basis that the claim group:·Asserted native title rights and interests to the claim area;·Had a continuous connection to the claim area; and·Had no connection to the claims on the Register. The Member referred to the reconsideration materials and noted that they included a statement asserting a complex history of family conflict between various individuals and groups. The Member also noted that there were extensive non-contested findings of the first delegate, and that conditions of the registration test had been met referable to ss 190B (3), 190B (4), 190B (8), 190B (9), 190C (2) and 190C (5) of the Native Title Act. In relation to other conditions forming part of the registration test, the Member found, in summary, as follows. Section 190B (2) of the Native Title Act provides that the Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2) (a) and (b) of the Native Title Act are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters. The Member noted that the Native Title Tribunal conducted a geospatial assessment of the claim area, which assessment was provided on 20 October 2021. The outcome of that geospatial assessment was that the claim area as described in the Wallara Claim was not described with reasonable certainty for the purposes of s190B (2). The Member continued:24.On the basis of that relevant information (see also my comments at [50] and [60] below), and given there was nothing in the reconsideration materials or the additional information provided on 5 November 2021 to displace the geospatial assessment, I am not satisfied there is sufficient information to be clear what areas are excluded from the claim area. Section 190B (5) of the Native Title Act provides that the Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular the factual basis must support:(a)that the native title claim group have, and the predecessors of those persons had, an association with the area (s190B (5)(a)); and(b)that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests (s190B (5)(b)); and(c)that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs (s190B (5)(c)). The Member noted that information and evidence relevant to those considerations includes material about the predecessors of the native title claim group, the society at sovereignty, and any link between that society and the claim group today.