Kemp v Native Title Registrar - [2006] FCA 939

FEDERAL COURT OF AUSTRALIA
Kemp v Native Title Registrar [2006] FCA 939
NATIVE TITLE – judicial review of decision of Native Title Registrar to register indigenous land use agreement – area agreement – objection to registration by applicant – whether requirements for registration in s 24CG(3)(b) met – authorisation process where competing claims to hold native title in relation to land or waters in the area – meaning of ‘all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement’ in s 24CG(3)(b)(i) – whether applicant, as a person who may hold native title in the area, required to authorise the agreement – Registrar’s decision to register agreement set aside
Aboriginal Councils and Association Act 1976 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Native Title Act 1993 (Cth) ss 24, 24CG, 24CL, 251A
Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315 cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited
KEITH KEMP v NATIVE TITLE REGISTRAR, MINISTER FOR LANDS FOR THE STATE OF NEW SOUTH WALES, MINISTER FOR THE ENVIRONMENT FOR THE STATE OF NEW SOUTH WALES, DIRECTOR-GENERAL OF THE DEPARTMENT OF THE ENVIRONMENT AND CONSERVATION, PATRICIA DAVIS-HURST AS APPLICANT FOR THE SALTWATER PEOPLE, SALTWATER TRIBAL COUNCIL (ABORIGINAL CORPORATION) AND GREATER TAREE CITY COUNCIL
NSD 35 of 2006
BRANSON J
25 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 35 of 2006

BETWEEN:

KEITH KEMP
APPLICANT

AND:

NATIVE TITLE REGISTRAR
FIRST RESPONDENT

MINISTER FOR LANDS FOR THE STATE OF NEW SOUTH WALES
SECOND RESPONDENT

MINISTER FOR THE ENVIRONMENT FOR THE STATE OF NEW SOUTH WALES
THIRD RESPONDENT

DIRECTOR-GENERAL OF THE DEPARTMENT OF THE ENVIRONMENT AND CONSERVATION
FOURTH RESPONDENT

PATRICIA DAVIS-HURST AS APPLICANT FOR THE SALTWATER PEOPLE
FIFTH RESPONDENT

SALTWATER TRIBAL COUNCIL (ABORIGINAL CORPORATION)
SIXTH RESPONDENT

GREATER TAREE CITY COUNCIL
SEVENTH RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

25 JULY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The decision of the first respondent that the agreement must be registered pursuant to s 24CL(1) of the Native Title Act be set aside.
2.The application for registration be remitted to the first respondent to be determined according to law.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 35 of 2006

BETWEEN:

KEITH KEMP
APPLICANT

AND:

NATIVE TITLE REGISTRAR
FIRST RESPONDENT

MINISTER FOR LANDS FOR THE STATE OF NEW SOUTH WALES
SECOND RESPONDENT

MINISTER FOR THE ENVIRONMENT FOR THE STATE OF NEW SOUTH WALES
THIRD RESPONDENT

DIRECTOR-GENERAL OF THE DEPARTMENT OF THE ENVIRONMENT AND CONSERVATION
FOURTH RESPONDENT

PATRICIA DAVIS-HURST AS APPLICANT FOR THE SALTWATER PEOPLE
FIFTH RESPONDENT

SALTWATER TRIBAL COUNCIL (ABORIGINAL CORPORATION)
SIXTH RESPONDENT

GREATER TAREE CITY COUNCIL
SEVENTH RESPONDENT

JUDGE:

BRANSON J

DATE:

25 JULY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT
INTRODUCTION

Two proceedings were instituted in this Court in 1998 in which Dr Patricia Anne Davis-Hurst, the fifth respondent in this matter, applied on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCA 939
Decision Date: 25 JULY 2006

CaseChat Overview and Summary

In the case of Kemp v Native Title Registrar, the court was asked to review the decision of the Registrar, who had decided to register an indigenous land use agreement despite objections from one of the parties. The case concerned the interpretation and application of statutory provisions governing the registration of indigenous land use agreements under the Native Title Act 1993 (Cth). Specifically, the court had to determine whether the Registrar had correctly applied the statutory requirements when deciding to register the agreement.

The legal issues that the court was required to decide were primarily concerned with the interpretation of the statutory provisions and the process by which the Registrar had made her decision. The court had to consider whether the Registrar had correctly interpreted the requirement that all persons who hold or may hold native title in relation to the area must be identified and must have authorised the making of the agreement. This involved examining the statements provided by Dr Davis-Hurst and assessing whether the Registrar had properly considered these statements in light of the statutory requirements.

The court concluded that the Registrar had erred in her interpretation of the statutory provisions. The court held that the statutory language required a literal reading, and that the Registrar's decision to register the agreement was based on an incorrect interpretation of these provisions. The court found that the Registrar had not properly considered whether all relevant native title holders had authorised the making of the agreement. As a result, the decision of the Registrar to register the agreement was set aside, and the matter was remitted to the Registrar for redetermination according to law.

The court ordered that the decision of the Registrar to register the agreement be set aside and that the application for registration be remitted to the Registrar to be determined according to law. The court also indicated that it would hear the parties on the appropriate order or orders, if any, to be made as to costs.

Orders

Orders of the court

1. The decision of the first respondent that the agreement must be registered pursuant to s 24CL(1) of the Native Title Act be set aside.

2. The application for registration be remitted to the first respondent to be determined according to law.

Background

Background to the litigation

For the reasons set out below I have concluded that the decision of the Registrar should be set aside.STATUTORY FRAMEWORK AND RELEVANT FACTS Indigenous land use agreements are creatures of statute; the types of agreements, what they may be about, who may be parties to them and the formalities required for their registration are all governed by subdivisions of Part 2 Division 3 of the Act. Part 2 Division 3 of the Act as a whole is concerned mainly with ‘future acts’ as defined by s 233 of the Act. A future act will be valid if the parties to an indigenous land use agreement consent to the act being done (s 24AA(3)). The Agreement with which this proceeding is concerned is an agreement of the type for which Subdivision C of Division 3 of Part 2 of the Act provides; that is, it is an area agreement. An area agreement cannot be made if there are registered native title bodies corporate in relation to all of the area of land covered by the agreement (s 24CC). Section 24CD of the Act governs who must be parties to an area agreement. All persons in the ‘native title group’ must be parties to the agreement (s 24CD(1)). As Dr Davis-Hurst is a registered native title claimant in relation to all of the area, the native title group for the Agreement consists of all registered native title claimants in relation to land or waters in the area and all registered native title bodies corporate in relation to land or waters in the area (s 24CD(2)). Mr Kemp is not a registered native title claimant in relation to any part of the area. Section 24CD thus makes it clear that Mr Kemp is not a necessary party to the Agreement. The critical issue to be determined in this proceeding is whether, nonetheless, the Agreement may not be registered unless he authorised its making. Section 24CG(3)(b) of the Act required the application for registration of the Agreement to include a statement to the effect that the following requirements had been met:‘(i)all reasonable efforts have been made … to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;(ii)all of the persons so identified have authorised the making of the agreement’. (emphasis added)A further statement was required which briefly set out the grounds on which the Registrar should be satisfied that the requirements were met. The meaning of the words emphasised in s 24CG(3)(b)(i) above is critical to the outcome of this proceeding (see [49] below). Two statements by Dr Davis-Hurst accompanied the application for registration of the agreement. The first statement was to the effect that the requirements of s 24CG(3)(b)(i) and (ii) had been met. The second statement gave details of extensive efforts made by Dr Davis-Hurst to publicise the claims for determination of native title and to gain authorisation for the description of the claimant group. The second statement records that Dr Davis-Hurst discussed with the Purfleet Taree Aboriginal Land Council who should be part of the claimant group and ‘they agreed it should be the traditional owners who camped in the Saltwater area and that these were both Worimi and Biripai people.’ It also gave details of efforts to ensure that those who fell within the description of the claimant group authorised the making of the agreement.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BRANSON J

Ultimately I am not persuaded that any of the factors identified in the passage from Project Blue Sky cited in [48] above requires the words of s 24CG(3)(b)(i) to be read in a way that does not correspond to their literal meaning. I decline to so read them.CONCLUSION For the above reasons, I conclude that the Registrar erred in concluding that the requirements of s 24CG(3)(b) had been met in the present case. I further conclude that it would not be appropriate to refrain from setting aside her decision on the basis that the error was not material because it was unnecessary for Mr Kemp to authorise the making of the agreement. The decision of the Registrar that the Agreement must be registered pursuant to s 24CL(1) of the Act will be set aside and the application for registration remitted to the Registrar to be determined according to law. I will hear the parties on the appropriate order or orders, if any, to be made as to costs.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

It is convenient to set out the terms of s 24CL in full:‘Registration of area agreements not certified by representative Aboriginal/Torres Strait Islander bodiesRegistration only if conditions satisfied(1)If the application for registration of the agreement contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement), and the conditions in subsections (2) and (3) of this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.First condition(2)The first condition is that the following persons are parties to the agreement:(a)any person who is, at the end of the notice period, a registered native title claimant or a registered native title body corporate in relation to any of the land or waters in the area covered by the agreement; and(b)any person who, after the end of the notice period, becomes a registered native title claimant in relation to any of the land or waters in the area covered by the agreement, where the application containing the claim was made before the end of the notice period and:(i)the claim is accepted by the Registrar for registration under subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy conditions equivalent to those set out in sections 190B and 190C under a law of a State or Territory; or(ii)the claim is accepted by the Registrar for registration as a result of an application under subsection 190D(2), where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or(iii)the claim is found to satisfy conditions equivalent to those set out in sections 190B and 190C under a provision of a law of a State or Territory to similar effect as section 190D, and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii) of this paragraph.Second condition(3)The second condition is that the Registrar considers that the requirements in paragraph 24CG(3)(b) (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement) have been met.Matters to be taken into account(4)In deciding whether the requirements have been met, the Registrar must take into account:(a) the statements in the application; and(b)any information the Registrar is given on the matter by any representative Aboriginal/Torres Strait Islander body or by any other body or person;and may, but need not, take into account any other matter or thing.’REASONS FOR DECISION OF THE REGISTRAR OF THE REGISTRAR The Registrar accurately noted that the Agreement recognises the Saltwater People as holders of native title rights and interests in the area, regulates the exercise by the Saltwater People and the Saltwater Tribal Council of native title rights and interests in the area, provides a role for the Saltwater Tribal Council in the future management of the area and provides for the withdrawal of the native title determination applications made to this Court.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 35 of 2006

BETWEEN:	KEITH KEMP APPLICANT
AND:	NATIVE TITLE REGISTRAR FIRST RESPONDENT MINISTER FOR LANDS FOR THE STATE OF NEW SOUTH WALES SECOND RESPONDENT MINISTER FOR THE ENVIRONMENT FOR THE STATE OF NEW SOUTH WALES THIRD RESPONDENT DIRECTOR-GENERAL OF THE DEPARTMENT OF THE ENVIRONMENT AND CONSERVATION FOURTH RESPONDENT PATRICIA DAVIS-HURST AS APPLICANT FOR THE SALTWATER PEOPLE FIFTH RESPONDENT SALTWATER TRIBAL COUNCIL (ABORIGINAL CORPORATION) SIXTH RESPONDENT GREATER TAREE CITY COUNCIL SEVENTH RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	25 JULY 2006
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 35 of 2006

JUDGE:	BRANSON J
DATE:	25 JULY 2006
PLACE:	SYDNEY