Stock v Native Title Registrar

Case [2013] FCA 1290

FEDERAL COURT OF AUSTRALIA

Stock v Native Title Registrar [2013] FCA 1290

Citation: Stock v Native Title Registrar [2013] FCA 1290
Parties: DAVID STOCK, GORDON YULINE, RAYMOND DRAGE, VICTOR PARKER & BILLY CADIGAN IN THEIR CAPACITY AS THE REGISTERED NATIVE TITLE CLAIMANT FOR THE NYIYAPARLI PEOPLE'S NATIVE TITLE CLAIM (WAD 6280 OF 1998) v THE NATIVE TITLE REGISTRAR & HER DELEGATE, STEPHEN RIVERS-MCCOMBS and BETTY PETERSON, ERNEST WILLIAM COFFIN, MARJORIE DRAGE, AILSA ROY AND STEPHEN PETERSON IN THEIR CAPACITY AS THE REGISTERED NATIVE TITLE CLAIMANT IN THE WUNNA NYIYAPARLI PEOPLE'S NATIVE TITLE CLAIM (WAD 22 OF 2012)
File number: WAD 154 of 2012
Judge: BARKER J
Date of judgment: 29 November 2013
Catchwords: ADMINISTRATIVE LAW – application by registered native title claimants to set aside decision of native title registrar to accept overlapping claim for registration – whether claimants have standing – whether registrar denied claimants procedural fairness by not providing them with materials submitted by overlapping claimants – whether ss 190B(5)(b), 190B(6), 190C(4)(b) Native Title Act 1993 (Cth) satisfied
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)
Native Title Act 1993 (Cth) s 3(b), s 24CD(2), s 24MD(6B), Pt 2 Div 3 Subdiv P, s 29, Pt 3 Div 1, s 61(1), s 62, s 62(1), s 62(2), s 62(2)(e), s 63, s 64(4), s 66(2A), s 66(6)(a), Pt 7, s 190A, s 190A(1), s 190A(2), s 190A(3), s 190A(6), s 190A(6)(b)(i), s 190B, s 190B(5), s 190B(5)(b), s 190B(6), s 190C, s 190C(4), s 190C(4)(b), s 253
Cases cited: Edwards v Santos Ltd [2011] HCA 8; (2011) 242 CLR 421
Gudjala People No 2 v Native Title Registrar [2008] FCAFC 157; (2008) 171 FCR 317
Gudjala People No 2 v Native Title Registrar [2009] FCA 1572; (2009) 182 FCR 63
Hazelbane v Doepel [2008] FCA 290; (2008) 167 FCR 325
Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223
Risk v National Native Title Tribunal [2000] FCA 1589
Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150
Wulgurukaba People #1 v State of Queensland [2002] FCA 1555
Date of hearing: 27 February 2013
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 102
Counsel for the Applicants: Mr M Ritter SC and Ms C Tan
Solicitor for the Applicants: Yamatji Marlpa Aboriginal Corporation
Counsel for the Second Respondent: The Second Respondents appeared in person

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 154 of 2012
BETWEEN:

DAVID STOCK, GORDON YULINE, RAYMOND DRAGE, VICTOR PARKER & BILLY CADIGAN IN THEIR CAPACITY AS THE REGISTERED NATIVE TITLE CLAIMANT FOR THE NYIYAPARLI PEOPLE'S NATIVE TITLE CLAIM (WAD 6280 OF 1998)
Applicants
AND:

THE NATIVE TITLE REGISTRAR & HER DELEGATE, STEPHEN RIVERS-MCCOMBS
First Respondent

BETTY PETERSON, ERNEST WILLIAM COFFIN, MARJORIE DRAGE, AILSA ROY AND STEPHEN PETERSON IN THEIR CAPACITY AS THE REGISTERED NATIVE TITLE CLAIMANT IN THE WUNNA NYIYAPARLI PEOPLE'S NATIVE TITLE CLAIM (WAD 22 OF…

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AGLC
Stock v Native Title Registrar [2013] FCA 1290
Case
[2013] FCA 1290
Decision Date

CaseChat Overview and Summary

In Stock v Native Title Registrar, the Wunna claimants brought an application for judicial review of a decision made by the Registrar regarding the registration of a native title claim. The Wunna claimants sought to challenge the Registrar's decision on the basis that the Nyiyaparli claimants, who had previously negotiated and registered Indigenous Land Use Agreements (ILUA) covering the same area, were not afforded procedural fairness during the registration process of the Wunna claim. The Nyiyaparli claimants intervened in the proceedings to defend the Registrar's decision, arguing that the Wunna claimants were not entitled to procedural fairness as their claim area overlapped with the area covered by the ILUAs.

The primary legal issue before the court was whether the Wunna claimants were entitled to procedural fairness during the registration of their native title claim, given that the Nyiyaparli claimants had already negotiated and registered ILUAs covering the same area. The court needed to determine whether the Registrar's decision not to afford procedural fairness to the Nyiyaparli claimants was lawful and whether there was an error in the interpretation of the relevant legislation and procedures.

The court found that while the Nyiyaparli claimants had standing to intervene in the proceedings, the application for judicial review was dismissed as no error of law by the Registrar was demonstrated. The court held that the Nyiyaparli claimants were not entitled to procedural fairness because the registration test decision did not deprive them of any relevant proprietary rights or interests in the land. The court found that the Registrar's decision was in accordance with the Native Title Act 1993 (NTA), which provided that registered native title claimants in relation to any of the area covered by a new application should not be given notice of the application until the Registrar had decided whether or not to accept for registration the claim made in the application.

Accordingly, the court dismissed the application for judicial review. The court did not make any orders regarding costs.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the Court finds the Nyiyaparli claimants have standing to make the application but dismisses the application as no error of law by the Registrar is demonstrated.BACKGROUND The application for judicial review was filed on 13 July 2012. On 17 July 2012, the Registrar filed a submitting notice. The Wunna claimants were legally unrepresented until 19 February 2013, when a “notice of acting – appointment of lawyer” was filed. However, at the hearing on 27 February 2013, the Court was informed that the Wunna claimants were again no longer legally represented and that a notice of ceasing to act would shortly be filed. (In fact, this notice was not filed until 19 June 2013.) At the hearing, the Wunna claimants sought to rely on submissions filed on their behalf by their former solicitor on 21 February 2013. On 26 February 2013, while the Wunna claimants were still legally represented, the Nyiyaparli claimants and Wunna claimants filed an agreed statement of facts. At the hearing, it was agreed by both senior counsel for the Nyiyaparli claimants and representatives of the Wunna claimants that the statement should be admitted into evidence, albeit supplemented with comments about specific paragraphs of the statement made by representatives of the Wunna claimants at the hearing. The agreed facts (with supplementary comments by the Wunna claimants, where relevant) can briefly be summarised as follows. Prior to the registration of the Wunna claim, the Nyiyaparli claimants negotiated an indigenous land use agreement (ILUA) with Hamersley Iron Pty Ltd, Robe River Mining Co Pty Ltd, Hamersley HMS Pty Ltd and Hamersley Resources Ltd (Rio Tinto ILUA). The Rio Tinto ILUA covered the whole of the claim area in native title determination application WAD 6280 of 1998, in which the Nyiyaparli claimants are the registered claimants, including the area that is now the subject of the Wunna claim (Nyiyaparli claim). Prior to the registration of the Wunna claim, the Nyiyaparli claimants negotiated an ILUA with BHP Billiton Iron Ore Pty Ltd for and on behalf of various related entities (BHPBIO ILUA). The BHPBIO ILUA covered the whole of the Nyiyaparli claim area, including the area that is now the subject of the Wunna claim. A meeting of the Nyiyaparli claimants to authorise the Rio Tinto ILUA and the BHPBIO ILUA was held on 22 March 2012. This meeting authorised both ILUAs. However, representatives of the Wunna claimants contend that they were not invited to the meeting and did not attend the meeting. This was apparently because the Wunna claimants did not feel as though they should attend the meeting as they were about to have their own claim registered. On 30 March 2012, the Wunna claim was accepted for registration and placed on the register of native title claims. It was then no longer possible to proceed to register the Rio Tinto ILUA and the BHPBIO ILUA as they covered the area of the Wunna claim and the Wunna claimants had not authorised the ILUAs.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For this reason, ground 4 also fails.CONCLUSION AND ORDERS In these circumstances the application for judicial review should be dismissed.

Ratio Decidendi

Legal Principle Established

The Nyiyaparli claimants refer to the existence of two guiding documents that the Registrar (or delegate) uses in registration test decisions: the “Registration Test Procedures” dated May 2012 (Registration Test Procedures) and the “Handbook for Registration Delegates of the Native Title Registrar” dated 3 September 2009 (Handbook for Registration Delegates). Section 6.2.3 of the Registration Test Procedures provides:Procedural fairness must be provided to third parties if the registration test decision could be adverse to their rights or interests unless the entitlement is excluded by express terms or by any necessary implication.…Ordinarily, persons with an existing application, where the claim area geographically overlaps, in part or in whole, the claim area of a claim to be tested, are not entitled to be afforded procedural fairness, including an opportunity to make submissions in relation to the claim to be tested. This is because that entitlement has been excluded by the [NTA]. Those persons would only be notified of the existence of the claim once the test is applied (s. 66(6)). This general principle may be modified by actions taken by the case manager or delegate which give rise to a legitimate expectation that the third party claim group would be afforded procedural fairness.(Emphasis in original.)In the footnotes to this section, the Registration Test Procedures cites Hazelbane at [25]-[28]. The Nyiyaparli claimants submit that this paragraph is an erroneous statement of the law and an erroneous statement of the principles established by Hazelbane. (These claimants submit that the Handbook for Registration Delegates (for example at p 23) also proceeds on the basis of the same errors.) Further, the Nyiyaparli claimants contend that the Registrar acted upon the erroneous view of the law expressed in these documents in stating that they were “not entitled” to receive a copy of the additional information provided by the Wunna claimants. In response, the Wunna claimants submit that the Nyiyaparli claimants were not entitled to procedural fairness because the Registrar’s decision did not deprive them of any relevant proprietary rights or interests in the land the subject of the Registrar’s decision. The Wunna claimants draw attention to s 66(6)(a) NTA, which effectively provides that any registered native title claimant in relation to any of the area covered by a new application not be given notice of the application until the Registrar has decided whether or not to accept for registration the claim made in the application. This, they submit, is a positive legislative direction that registered claimants not be involved in the process of determining subsequent overlapping applications. Further, the Wunna claimants submit that there is no evidence of conduct by or on behalf of the Registrar inviting submissions from YMAC in its capacity as solicitors for the Nyiyaparli claimants; only as the relevant representative body under the NTA.