Quall v Native Title Registrar

Case [2003] FCA 145


FEDERAL COURT OF AUSTRALIA

Quall v Native Title Registrar [2003] FCA 145

NATIVE TITLE – review of decision of delegate of Native Title Registrar – decision not to accept an application for registration under ss 190A, 190B, 190C Native Title Act 1993 (Cth) – delegate found native title claim group in application not complete native title claim group – nature of information delegate entitled to consider – nature of review of delegate’s decision under s 190D considered.

Native Title Act 1993 (Cth), ss 61-64, ss 190A-190C, s 251B
Native Title Amendment Act 1998 (Cth)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Administrative Decisions (Judicial Review) Act 1976 (Cth)

Risk v National Native Title Tribunal and Quall [2000] FCA 1589 – followed
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 – cited
Risk v Native Title Registrar [2001] FCA 1120 - followed
Borkovic v Minister for Immigration & Ethnic Affairs (1981) 39 ALR 186 – cited
Hamblin v Duffy (1981) 34 ALR 333 – cited
Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652 – followed
Powder v Registrar, Native Title Tribunal [1999] FCA 913 - cited
Strickland v Native Title Registrar (1999) 168 ALR 242; [1999] FCA 1530 – cited
Quall v Risk [2001] FCA 378 – cited
Daniel v State of Western Australia [2002] FCA 1147 – cited
Martin v Native Title Registrar [2001] FCA 16 – cited
Western Australia v Ward (2002) 191 ALR 1 – cited
The Queen v Commonwealth Conciliation & Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 – cited
Ewert v Lonie [1972] VR 308 – cited
Shire of Swan Hill v Bradbury (1936) 56 CLR 746 – cited

KEVIN (TIBBY) QUALL v NATIVE TITLE REGISTRAR

D 10 of 2002

MANSFIELD J
7 MARCH 2003
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D 10 OF 2002

BETWEEN:

KEVIN (TIBBY) QUALL
APPLICANT

AND:

NATIVE TITLE REGISTRAR
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

7 MARCH 2003

WHERE MADE:

DARWIN

THE COURT ORDERS THAT:

1.        The application is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D 10 OF 2002

BETWEEN:

KEVIN (TIBBY) QUALL
APPLICANT

AND:

NATIVE TITLE REGISTRAR
RESPONDENT

JUDGE:

MANSFIELD J

DATE:

7 MARCH 2003

PLACE:

DARWIN

REASONS FOR JUDGMENT

THE APPLICATION

  1. On 30 September 1999, the applicant applied under s 61 of the Native Title Act 1993 (Cth) (the NT Act) for the determination of native title in respect of an area of land known as Howard River East. It is not necessary to identify the land the subject of the application for determination of native title in any further detail for present purposes. The applicant made a claim on behalf of himself and eight named individuals, who he elsewhere described in the application as members of the Danggalaba clan. The application was amended by leave…

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AGLC
Quall v Native Title Registrar [2003] FCA 145
Case
[2003] FCA 145
Decision Date

CaseChat Overview and Summary

The case of Quall v Native Title Registrar involved a land claim on the Cox Peninsula, western side of Darwin Harbour, contested by multiple groups, including the Larrakia and Danggalaba groups. The applicant, Quall, contested the decision of the delegate of the Registrar, arguing that the delegate had improperly accepted evidence in the Kenbi Land Claim without proper scrutiny. Quall further argued that the Kulumbiringin group was not a subgroup of the wider Larrakia native title claim group. This case was before the court to determine whether the Registrar had correctly followed the statutory requirements in considering the claim for registration.

The primary legal issue was whether the Registrar had the discretion to accept a claim for registration if the majority of the requirements were met, as per sections 190A(6), 190B, and 190C of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The court examined whether the Registrar had considered all necessary information and whether the decision-making process complied with the statutory directives. The applicant contended that the delegate had failed to properly evaluate the evidence and had improperly accepted the claim.

The court found that the Registrar was not empowered to accept a claim for registration unless all conditions specified in sections 190B and 190C were met. The decision to reject the application was based on the conclusion that the Registrar had followed the statutory requirements, considering extensive information and had no discretion to accept the claim if only the majority of conditions were satisfied. The court further determined that the applicant's contention regarding the Kulumbiringin group did not alter the outcome, as the statutory framework did not grant the Registrar the discretion to make such a decision.

ORDERS:
1. The application is dismissed.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

That is a reference to the Report and Recommendations of the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) entitled The Kenbi (Cox Peninsula) Land Claim No 37. It concerned a land claim in respect of a large area of land on the Cox Peninsula, on the western side of the Darwin Harbour, across the harbour from Darwin. There were four claimant groups, including one called the Larrakia group, as well as one called the Danggalaba group. The Northern Land Council instructed counsel on behalf of the Larrakia group, as well as separate counsel for the other claimant groups except for the Danggalaba group. The present applicant appeared as a separate party during the hearing on certain occasions, before counsel for the Danggalaba group was retained. The Larrakia group is a larger group than the Kulumbiringin group (as now identified). The applicant’s contention appeared to be that the delegate of the Registrar had proceeded simply to accept evidence in the Kenbi Land Claim without considering its rightness or wrongness. The applicant disputed that the Kulumbiringin are simply a sub-group of the wider Larrakia native title claim group. The wider Larrakia group has also made a claim for determination of native title in respect of the land at Howard River East (and other extensive areas around Darwin).CONSIDERATION In my judgment, the first of the identified grounds of review must fail. That is because s 190A(6) directs the Registrar not to accept the claim for registration unless all of the conditions specified in ss 190B and 190C are met. It does not provide the Registrar with any discretion to accept the claim for registration if the majority of the requirements of those provisions are met. The delegate of the Registrar identified in her decision the information which she had considered. It was extensive information recorded in files and data bases, and included correspondence from the Northern Land Council, from the Solicitor for the Northern Territory, and extracts from the Kenbi Land Claim Report as well as material presented by the applicant. Section 190A directs the Registrar, in considering a claim, to have regard to a range of information in the following terms:“(3) In considering a claim under this section, the Registrar must have regard to:(a)information contained in the application and in any other documents provided by the applicant; and(b)any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and(c)to the extent that it is reasonably practicable to do so in the circumstances – any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar’s opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim;and may have regard to such other information as he or she considers appropriate.”