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, citedMARJORIE 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 1999FRENCH 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
ApplicantAND:
THE NATIVE TITLE REGISTRAR
First RespondentTHE STATE OF WESTERN AUSTRALIA
Second RespondentJUDGE:
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
ApplicantAND:
THE NATIVE TITLE REGISTRAR
First RespondentTHE STATE OF WESTERN AUSTRALIA
Second Respondent
JUDGE:
FRENCH J
DATE:
4 NOVEMBER 1999
PLACE:
PERTH
REASONS FOR JUDGMENT
Introduction
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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- AGLC
- Strickland v Native Title Registrar [1999] FCA 1530
- Case
- [1999] FCA 1530
- Decision Date
CaseChat Overview and Summary
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
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.