Top End (Default PBC/CLA) Aboriginal Corporation v Northern Territory of Australia

The Top End (Default PBC/CLA) Aboriginal Corporation sought to appeal a decision of the National Native Title Tribunal concerning the proposed grants of exploration licences, arguing that the Tribunal had misconstrued the requirements of the Native Title Act 1993 (NT). The Tribunal had ruled that certain sites were not of particular significance, thereby attracting the expedited procedure under the Act. The appellant argued that the Tribunal had incorrectly required an “explanation” of the significance of these sites, and had erred in applying a “presumption of regularity”. The appeal was heard in the Federal Court of Australia.

The court was required to determine whether the Tribunal had erred in law by imposing an “explanation” requirement and by applying a “presumption of regularity”. The court examined the Tribunal’s reasoning and the evidence it had considered. It assessed whether the Tribunal had correctly interpreted the phrase “areas or sites of particular significance, in accordance with their traditions” in s 237(b) of the Native Title Act.

The court found that the Tribunal had indeed erred in law. It held that the Tribunal had misconstrued the requirement for an “explanation” of significance, which was not a necessary condition under the Act. The court noted that the Tribunal’s approach had imposed an additional burden on the native title holders. Furthermore, the court held that the Tribunal had misapplied the “presumption of regularity” by not sufficiently considering the evidence presented by the native title holders. The court concluded that the Tribunal’s decision was flawed and remitted the matter back to the Tribunal for reconsideration.

The orders of the court were as follows: the appeal was allowed; the determination of the Tribunal was set aside; and the application was remitted to the Tribunal for determination according to law. The court did not make any order as to costs.