Martin v Native Title Registrar

Case [2001] FCA 16

FEDERAL COURT OF AUSTRALIA

Martin v Native Title Registrar [2001] FCA 16

ABORIGINES – native title – Register of Native Title claims – application of registration test – authorisation requirement – sufficiency of supporting affidavit – registration conditions – authorisation – factual basis for native title rights and interests claimed – association with area claimed – existence, acknowledgment and observance of traditional laws and customs – improper exercise of power – application dismissed.

Native Title Act 1993 (Cth) s 190B, 190C
Administrative Decisions (Judicial Review) Act 1977

Strickland v Native Title Registrar (1999) 168 ALR 242 cited
Western Australia v Strickland (2000) 99 FCR 33 cited

JOAN MARGARET MARTIN v THE NATIVE TITLE REGISTRAR, THE STATE OF WESTERN AUSTRALIA
W 6013 OF 1999

FRENCH J
19 JANUARY 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W6013 OF 1999

BETWEEN:

JOAN MARGARET MARTIN
APPLICANT

AND:

THE NATIVE TITLE REGISTRAR
FIRST RESPONDENT

THE STATE OF WESTERN AUSTRALIA
SECOND RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

19 JANUARY 2001

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        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

WESTERN AUSTRALIA DISTRICT REGISTRY

W6013 OF 1999

BETWEEN:

JOAN MARGARET MARTIN
APPLICANT

AND:

THE NATIVE TITLE REGISTRAR
FIRST RESPONDENT

THE STATE OF WESTERN AUSTRALIA
SECOND RESPONDENT

JUDGE:

FRENCH J

DATE:

19 JANUARY 2001

PLACE:

PERTH

REASONS FOR JUDGMENT

History of Proceedings

  1. On 26 August 1997, Joan Margaret Martin and three others who designated themselves as the “Widi Mob”, lodged with the Native Title Registrar a native title determination application.  Details of that application were placed on the Register of Native Title Claims on the same day, pursuant to the provisions of the Native Title Act 1993 (Cth) as it then stood. By virtue of the Native Title Amendment Act 1998 all native title determination applications commenced on or after 30 September 1998 were to be instituted in the Federal Court.  Native title applications which had been lodged with the Native Title Registrar under the Act as it stood before the amendments and which had not been referred to the Federal Court under s 74 of the Act, became proceedings in the Federal Court by operation of transitional provisions. 

  2. New applications lodged under the amended Act after 30 September 1998 would not be placed on the Register of Native Title Claims and thus attract the benefits of the right to negotiate regime, in relation to certain classes of future act, unless they satisfied the conditions in ss 190B and 190C of the Act (s 190A(6)). That is to say, new claims had to pass a registration test not previously applicable before being placed on the Register of Native Title Claims. Claims lodged prior to 30 September 1998 were also to be subject to the registration test in certain circumstances. One of those circumstances would arise if, after 30 September 1998,…

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AGLC
Martin v Native Title Registrar [2001] FCA 16
Case
[2001] FCA 16
Decision Date

CaseChat Overview and Summary

In Martin v Native Title Registrar, the applicant challenged the decision of the delegate that her application for registration of a native title claim did not satisfy certain conditions of registration under the Native Title Act 1993. The applicant, Mrs Martin, argued that the delegate erred in law by concluding that the affidavit accompanying the application did not comply with specific requirements of the Act, and that the evidence was insufficient for the delegate to be satisfied that the applicant was authorised by the native title claim group, that the members of the claim group had an association with the claimed area, and that there existed traditional laws and customs that gave rise to the claim. The applicant also argued that the decision was unreasonable. The matter was heard in the Federal Court of Australia.

The central legal issues in the case were whether the delegate correctly interpreted the requirements of the Act in relation to the supporting affidavit and the sufficiency of the evidence presented. Specifically, the court needed to determine whether the delegate erred in finding that the affidavit did not comply with the statutory requirements, and whether the delegate correctly assessed the sufficiency of the evidence to meet the statutory conditions for registration.

The court found that the delegate did not err in concluding that the affidavit did not comply with the statutory requirements. The court held that the delegate was entitled to consider the plain meaning of the affidavit and did not need to resort to extrinsic evidence to interpret it. The court also found that the delegate was not required to accept the applicant’s assertions as sufficient evidence to meet the statutory conditions. The court held that the delegate was entitled to require evidence that was probative and sufficient to satisfy the statutory conditions, and that the applicant had not provided such evidence.

The court dismissed the application, finding that the delegate’s decision was not erroneous or unreasonable. The court held that the delegate correctly interpreted the statutory requirements and correctly assessed the sufficiency of the evidence. The court also held that the applicant had not discharged the onus of showing that the delegate’s decision was wrong.

Orders

Orders of the court

1. The application is dismissed.

2. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The delegate treated the amended application as comprising two documents namely the proposed amended application filed in the Federal Court on 5 February 1999 and the re-engrossed application created pursuant to the Court’s order of 24 February and filed in Court on 4 March 1999. It is not clear from the reasons why the two documents had to be read together as the second replicates the first, subject to the changes directed in the Registrar’s order of 24 February. The delegate considered that the application failed to satisfy certain conditions of registration. His conclusions in relation to those conditions are the subject of this challenge to his decision. It is convenient to deal with each condition and the challenge to it in the order in which it is raised in the application for review.The Supporting Affidavit – Evidence of Authorisation The first condition which it was said the application failed, was the condition in s 190C(2) that: “190C(2) The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.”The delegate found that the application did not comply with the requirement of s 62(1)(a)(iv) that it be accompanied by an affidavit sworn by the applicant: “(iv)that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; …”He also found that the affidavit accompanying the application did not comply with the requirement in s 62(1)(a)(v) that it be an affidavit: “(v)stating the basis on which the applicant is authorised as mentioned in subparagraph (iv);…”The terms of the affidavit sworn by Mrs Martin on 4 March 1999 in support of the amended application filed on that date were as follows: “(a)that I believe that the native title rights and interests claimed by the native title group have not been extinguished in relation to any part of the area covered by the application; and (b)that I believe that none of the area covered by the application is also covered by an entry in the National Native Title Register; and (c)that I believe that all of the statements made in the application are true; and(d)that I am authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and (e)I am so authorised by their descendants in accordance with a traditional custom acknowledged by the members of the native title claim group of younger generations respecting elder generations and elder generations having authority to make decisions and deal with matters relating to traditional interests in land and waters on their own behalf and on behalf of younger generations.”The words “I am” in pars (d) and (e) had been substituted by amendment for the words “they are” originally typed in. The latter words also appeared in the affidavit supporting the amended application filed on 5 February 1999. The amendments were initialled by the deponent and the person before whom the affidavit was sworn. The use of the third person plural pronoun in the affidavit no doubt derived from its use in the affidavit supporting the application which initiated the proceedings in 1997 at which time four persons were named as applicants.

Decision

Reasons for decision

FRENCH J
The amended application for review of the delegate’s decision purports to rely on both the review provisions of the Native Title Act 1993 and the Administrative Decisions(Judicial Review) Act 1977. The grounds of the application are as follows: “(1)The Delegate erred in law in concluding that the Affidavit accompanying the Application did not comply with s 62(1)(a)(iv) and (v) of the Native Title Act 1993 (Cth).Particulars(a)The Respondent misdirected himself in law as to the legal principles of construction of documents which required him to construe the document so as to avoid a capricious result, being the conclusion that the applicant was not stating that she was authorised or the basis upon which she was authorised as required by the Native Title Act 1993 (Cth).(b)The Respondent misdirected himself at law as to the principles of construction of documents which enabled him to take account of extrinsic materials in relation to their construction in order to resolve an ambiguity as to whether it was the applicant who was authorised as required by the Native Title Act 1993 (Cth), and he consequently failed to take account of such materials which were available. (2)The Delegate misdirected himself at law in concluding that the evidence was insufficient for him to be satisfied that the Applicant was authorised to make the application by the native title claim group, in accordance with s 190C(4)(b) of the Native Title Act 1993 (Cth).Particulars(a)The Delegate misdirected himself as to the meaning of the word “satisfied”, as used in S190C(4) and what evidence was capable of constituting sufficient evidence for him to be satisfied for the purposes of that provision. (b)The Delegate misdirected himself as to the burden of proof which applied to the Applicant by requiring that the Applicant exclude all competing inferences, including a competing inference not supported by any evidence, being that she was not authorised in accordance with the Native Title Act 1993 (Cth).(3)The Delegate misdirected himself at law in concluding that the evidence was insufficient for him to be satisfied that the members of the native title claim group have an association with the area claimed, in accordance with s 190B(5)(a) of the Native Title Act 1993 (Cth).Particulars(a)The Delegate misdirected himself as to the meaning of the word “satisfied”, as used in S 190B(5) and what evidence was capable of constituting sufficient evidence for him to be satisfied for the purposes of s 190B(5)(a).(b)The Delegate misdirected himself as to what evidence was capable of being probative of the facts about which he was required to be satisfied by dismissing as of no probative value evidence which he classified as “assertion”.(c)The Delegate misdirected himself as to the meaning of the words “association with the area”, used in s 190B(5)(a), by requiring that they necessarily mean an association with “all of the area of the land and waters” claimed, “the entirety of the land and waters claimed” or an association which “broadly covered” the area of the claim. (d)The Delegate misdirected himself as to the meaning of the word “association” in s 190B(5)(a) by limiting the meaning of the concept of association to physical presence. (e)The Delegate misdirected himself as to the burden of proof which applied to the Applicant by requiring that the Applicant exclude all competing inferences, including a competing inference that the native title claim group did not have an association with the claim area because they did not present evidence of physical attendance in parts of the claim area identified by the Delegate. (f)The Delegate misdirected himself as to the evidence which was required to satisfy the burden of proof imposed upon the Applicant by s 190B(5)(a) by requiring that the applicant present evidence of physical presence of members of the native title claim group in each of the parts of the claim area which the Delegate identified.(4)The Delegate misdirected himself in concluding that the evidence was insufficient for him to be satisfied that there do 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, as required by s 190B(5)(b) and (c) and (6).Particulars(a)The Delegate misdirected himself as to the meaning of the word “satisfied”, as used in s 190B(5) and what evidence was capable of constituting sufficient evidence for him to be satisfied for the purposes of s 190B(5)(b).(b)The Delegate misdirected himself as to what evidence was capable of being probative of the facts about which he was required to be satisfied by dismissing as of no probative value evidence which he classified as “assertion”.(c)The Delegate misdirected himself as to the facts as to which he was to be satisfied for the purposes of s 190B(5)(b), including a misdirection that he was required to be satisfied that the native title claim group was the ‘Widi people’ or the ‘entire Widi group’ and not a sub-group of the ‘Widi group’.(d)The Delegate misdirected himself as to the burden of proof which applied to the Applicant by requiring that the Applicant exclude all competing inferences, including – (i)irrelevant competing inferences that the native title claim group was not the ‘Widi people’, the ‘entire Widi group’ or a ‘community of people’; and (ii)a speculative inference, insufficiently based in evidence, that the traditions and customs of the claim group may not relate to the claim area but to an area outside the claim area.(5)The decision was an improper exercise of the power conferred on the Respondent by the Native Title Act 1993 (Cth) in that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power.Particulars(a)No reasonable person could have concluded from the affidavit accompanying the claimant application any thing other than that the applicant is authorised to make the claimant application and deal with matters arising in relation to it. (b)No reasonable person could have concluded other than that the affidavit accompanying the claimant application stated the basis upon which the applicant is so authorised. (c)No reasonable person could have concluded other than that the native title claim group have an association with the area of the claim.(d)No reasonable person could have concluded other than 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 in relation to the area of the claim.”The Delegate’s Decision

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

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