Strickland v Native Title Registrar

Case [1999] FCA 1530

FEDERAL COURT OF AUSTRALIA

Strickland v Native Title Registrar [1999] FCA 1530

NATIVE TITLE –registration of native title claim – application for review of decision refusing registration – compliance with statutory criteria for registration – nature of review of Registrar’s decision – margin of appreciation for Registrar’s judgment – overlapping applications with common membership – basis for identifying date when relevant application “made” – date of entry of overlapping application on Register – effect of transitional provisions – sufficiency of identification of area subject to native title – sufficiency of basis for asserted authority to bring application – identification of native title rights and interests asserted – factual basis for native title rights and interests asserted.

Native Title Act 1993 (Cth)
Native Title Amendment Act 1998 Cth)

North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595, cited
Northern Territory v Lane (1995) 59 FCR 332, cited
Kanak v National Native Title Tribunal (1995) 61 FCR 103, cited
Daniels v Western Australia& Others [1999] FCA 686, approved
Mabo v The State of Queensland (No 2) (1992) 175 CLR 1, cited
Powder v Registrar National Native Title Tribunal [1999] FCA 913, followed
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, cited

MARJORIE MAY STRICKLAND and ANNE JOYCE NUDDING on behalf of the Maduwongga People v THE NATIVE TITLE REGISTRAR and THE STATE OF WESTERN AUSTRALIA
W6018 of  1999

FRENCH J
4 NOVEMBER 1999
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W6018 OF 1999

BETWEEN:

MARJORIE MAY STRICKLAND and ANNE JOYCE NUDDING on behalf of the Maduwongga People
Applicant

AND:

THE NATIVE TITLE REGISTRAR
First Respondent

THE STATE OF WESTERN AUSTRALIA
Second Respondent

JUDGE:

FRENCH J

DATE OF ORDER:

4 NOVEMBER 1999

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The decision of the First Respondent not to accept the claim in the combined Maduwongga native title determination application WG76 of 1997 for registration be set aside.

2.The First Respondent is directed to accept the claim in the combined Maduwongga native title determination application WG76 of 1997 for registration and to include details of the claim in the Register of Native Title Claims.

3.There be liberty to the parties to apply within ten days for any necessary ancillary orders.

4.There be liberty to apply within ten days by written submission on the question of 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

W6018 OF 1999

BETWEEN:

MARJORIE MAY STRICKLAND and ANNE JOYCE NUDDING on behalf of the Maduwongga People
Applicant

AND:

THE NATIVE TITLE REGISTRAR
First Respondent

THE STATE OF WESTERN AUSTRALIA
Second Respondent

JUDGE:

FRENCH J

DATE:

4 NOVEMBER 1999

PLACE:

PERTH

REASONS FOR JUDGMENT

Introduction

  1. Three native title applications covering land in the Goldfields area were lodged on behalf of the Maduwongga people by Marjorie May Strickland and Anne Joyce Nudding in April 1994,…

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Details
AGLC
Strickland v Native Title Registrar [1999] FCA 1530
Case
[1999] FCA 1530
Decision Date

CaseChat Overview and Summary

In the case of Strickland v Native Title Registrar, the applicants sought judicial review of a decision by the Native Title Registrar not to accept their native title claim for registration. The dispute centred on the interpretation and application of the Native Title Act, particularly the overlap condition in section 190C(3). The applicants argued that the Registrar erred in his interpretation of the legislation and that the decision was unreasonable. The Registrar had relied on an anthropological report to support the decision, which the applicants contended was not sufficient to satisfy the statutory requirements.

The primary legal issues before the court were whether the Registrar had correctly interpreted and applied section 190C(3) of the Native Title Act in declining to register the Maduwongga claim and whether the decision was reasonable. The court examined the Registrar’s reasoning and whether there was a factual basis for his decision, considering whether the anthropological report provided sufficient evidence to satisfy the statutory requirements.

The court found that the Registrar had misinterpreted section 190C(3) of the Act. The overlap condition was not satisfied because the Registrar failed to correctly identify the relevant date when the combined Wongatha claim was considered under section 190A. The court concluded that the Registrar’s delegate had improperly exercised the power to decide not to enter the Maduwongga claim on the Native Title Register. Given the erroneous construction of the statutory provision, the Registrar's decision was set aside, and the claim was ordered to be registered.

In light of the findings, the court ordered that the Registrar accept the claim made in the combined Maduwongga application for registration and include details of the claim in the Register of Native Title Claims. The parties were granted liberty to apply for ancillary orders and to submit written arguments on the question of costs within ten days.

Orders

Orders of the court

1. The decision of the First Respondent not to accept the claim in the combined Maduwongga native title determination application WG76 of 1997 for registration be set aside.

2. The First Respondent is directed to accept the claim in the combined Maduwongga native title determination application WG76 of 1997 for registration and to include details of the claim in the Register of Native Title Claims.

3. There be liberty to the parties to apply within ten days for any necessary ancillary orders.

4. There be liberty to apply within ten days by written submission on the question of costs.

Note:

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

FRENCH J
The State submits that in their application the applicants do no more than repeat the assertions set out in ss 62(2)(e) and 190B(5) of the Native Title Act rather than providing facts to support them. It is said the Registrar cannot therefore be satisfied that there is any factual basis provided to support the assertions made. The Registrar’s delegate in addressing this condition went beyond the statements set out in the application and referred to an accompanying anthropological report which had been adopted in an affidavit of the applicants as prepared at their instructions and with their assistance. This report was relied upon to provide the factual basis for the assertions. Section 190B(5) does not limit the Registrar to consideration of the application in deciding whether the relevant state of satisfaction was reached and in my opinion unless it can be shown that he has erred somehow in principle in approaching the application of this condition, no basis has been disclosed for impugning the decision on grounds of non-compliance with the condition in s 190B(5).Conclusion For the reasons which I have set out, the refusal to register the claims in the combined Maduwongga application was based upon an erroneous construction of s 190C(3) of the Act. Notwithstanding the State’s contentions, there are no other grounds upon which refusal of registration could be maintained. In the circumstances I propose to order that the Registrar accept the claim made in the combined Maduwongga application for registration pursuant to s 190A(6) and include in the Register of Native Title Claims details of the claim. Having regard to the basis upon which I have reached my conclusion I will allow the parties seven days to file written submissions as to any order as to costs. I will also allow liberty to apply in relation to any ancillary directions particularly directions having regard to the time from which the inclusion of the claim in the Register should be taken to have effect.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

An application for an order for review of the Registrar’s decision was filed on 6 July 1999. The grounds of the application were: 1.The Registrar’s delegate breached the rules of natural justice when the decision was made not to accept the Maduwongga claim for registration.2.The delegate improperly exercised his power to decide not to enter the Maduwongga claim on the Native Title Register in that he exercised the power in a manner so unreasonable that no reasonable person could have so exercised the power. 3.The delegate improperly exercised the power conferred on it by the Native Title Act, s 202(4)(e), in that he failed to take into account a relevant consideration, namely that the combined Wongatha claim did not include the Maduwongga within the native title group of the combined Wongatha claim.The Operation of the Overlap Condition – Section 190C(3) The overlap condition set out in s 190C(3) is to be read with s 190A(6) which provides inter alia that:“The Registrar must accept the claim for registration if the claim satisfies all of the conditions in: ...(b)section 190C (which deals with procedural and other matters)In any other case, the Registrar must not accept the claim for registration.” “Any other case” includes a case in which any of the conditions in s 190C is not “satisfied”. The condition in s 190C(3) is not satisfied if the Registrar is not satisfied that no person included in the native title claim group for the application under consideration was a member of the native title group for any previous application which answers the criteria set out in s 190C(3) (a), (b) and (c). To determine whether this condition is satisfied the Registrar can proceed first to identify any previous application covering the whole or part of the area covered by the current application. He would then have to determine whether there was an entry relating to the claim in the previous application which was on the Register of Native Title Claims when the current application was made. He would also have to ascertain whether that previous application had been considered under s 190A and whether, as a result of that consideration, the relevant entry was either made or, if pre-existing, was not removed pursuant to that consideration. In the present case there was a number of applications which had overlapped the applications that were combined to form the combined Maduwongga application. A number of these overlapping applications were combined, by order of the Court on 22 January 1999, to form the combined Wongatha application which was given the lead Federal Court file no. WG 6005/98. Overall some twenty applications made up the combined Wongatha application. A further amendment was made to that combined application on 22 February 1999. The amended combined Wongatha application was considered under s 190A by the Native Title Registrar in accordance with his obligations under s 190A(1). It was accepted for registration pursuant to s 190A on 26 February 1999. That was the relevant date from which it could be said, in terms of s 190C(3)(b) that there was on the Register an “entry made or not removed as a result of consideration of the previous application under s 190A”. The date of the registration decision with respect to the combined Wongatha application is taken from the Court file in relation to that application, which includes a copy of the decision of the delegate of the Native Title Registrar under s 190A.