Western Australia v Strickland

Case [2000] FCA 652

FEDERAL COURT OF AUSTRALIA

State of Western Australia v Strickland [2000] FCA 652

NATIVE TITLE – Application for native title determination – Judicial review of Registrar’s decision not to accept a registered application  for registration – Basis of Registrar’s decision was the existence of a registered prior claim on behalf of persons who included some of the members of the group on behalf of whom the present application was made – Relevant date for determining whether the other claim was registered before the making of the present claim – Whether an application lodged before the commencement of the amending Act on 30 September 1998 should be regarded as being made on date of actual lodgment, on 30 September 1998 or on date of any subsequent combination of claims – Judicial review of Registrar’s decision about acceptance for registration of a native title claim – Ambit of the review - Authorisation of claimants – Whether application set out grounds on which Registrar could be satisfied as to authorisation – Specification of claimed native title rights – Whether it was sufficient for applicants to claim “rights to the possession, occupation, use and enjoyment as against the whole world” subject to exceptions – Factual basis of claimed native title rights.

Native Title Act 1993 (Cth) ss61, 62, 63, 64, 190, 190A, 190B, 190C, 190D and 251B.
Native Title Amendment Act 1998 (Cth)

Bropho v Western Australia (2000) 169 ALR 365 referred to
State of Western Australia v Native  Title Registrar (1999) FCA 1593 referred to
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 applied
Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253 followed
Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 distinguished

STATE OF WESTERN AUSTRALIA V MARJORIE MAY STRICKLAND AND ANNE JOYCE NUDDING AND THE NATIVE TITLE REGISTRAR
No. W 6039 of 1999

JUDGES:      BEAUMONT, WILCOX & LEE JJ
DATE:           18 MAY 2000
PLACE:         SYDNEY (HEARD IN PERTH)


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 6039 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

STATE OF WESTERN AUSTRALIA
APPELLANT

AND:

MARJORIE MAY STRICKLAND AND ANNE JOYCE NUDDING
FIRST RESPONDENTS

THE NATIVE TITLE REGISTRAR
SECOND RESPONDENT

THE ATTORNEY-GENERAL OF THE COMMONWEALTH
INTERVENOR

JUDGES:

BEAUMONT, WILCOX & LEE JJ

DATE OF ORDER:

18 MAY 2000

WHERE MADE:

SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant, State of Western Australia, pay the costs of the appeal of the first respondents, Margaret May Strickland and Anne Joyce Nudding.

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

W 6039 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

STATE OF WESTERN AUSTRALIA
APPELLANT

AND:

MARJORIE MAY STRICKLAND AND ANNE JOYCE…

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Details
AGLC
Western Australia v Strickland [2000] FCA 652
Case
[2000] FCA 652
Decision Date

CaseChat Overview and Summary

In the case of Western Australia v Strickland, the central dispute pertains to the interpretation and application of section 190C(3) of the Native Title Act, specifically whether the conditions outlined in paragraphs (b) and (c) are satisfied in the context of the combined Maduwongga applications. The dispute reached the court as the Registrar was not convinced that no person included in the consolidated Maduwongga application was a member of the Wongatha claimant group. The case involved judicial review of the Registrar’s decision to reject the combined Maduwongga applications for registration on the basis that they did not comply with the conditions specified in section 190C(3). The State of Western Australia, represented by the Registrar, argued that the applications failed to comply with several provisions of the Native Title Act.

The primary legal issue before the court was whether the Registrar had correctly interpreted and applied section 190C(3) in relation to the combined Maduwongga applications. The court was required to determine if the Registrar's decision to reject the applications was legally sound. The Registrar had concluded that the combined Maduwongga applications did not satisfy the conditions in section 190C(3), leading to the applications being rejected. The State contended that the Registrar had incorrectly construed section 190C(3), and further argued that the Registrar should have declined the registration on other grounds related to the sufficiency of the information provided.

The court found that the Registrar had indeed erred in finding that the combined Maduwongga application did not satisfy the conditions in section 190C(3). The primary Judge, French J, held that the Registrar had misapplied the conditions by not properly considering whether the previous application had been on the Register as a result of consideration under section 190A at the time the current application was made. The Judge concluded that the Registrar's approach was flawed because it did not account for the requirement that a relevant previous application must be on the Register as a result of consideration under section 190A. Therefore, the Registrar's decision to reject the applications was incorrect.

The court ordered that the appeal be dismissed and that the appellant, the State of Western Australia, pay the costs of the appeal of the first respondents, Margaret May Strickland and Anne Joyce Nudding. This decision highlights the importance of correctly interpreting statutory provisions and the potential consequences of judicial errors in the context of native title applications.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant, State of Western Australia, pay the costs of the appeal of the first respondents, Margaret May Strickland and Anne Joyce Nudding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The issue in this appeal, in relation to s190C(3), is whether paras (b) and (c) are satisfied. The issue is important because, as will appear, the Registrar was not satisfied that no person included in the consolidated Maduwongga application is a member of the Wongatha claimant group.REGISTRAR’S DECISION As we have seen, the Registrar’s delegate decided that the combined three Maduwongga applications WC 94/3, WC 95/11 and WC 98/20 not be accepted for registration because he was not satisfied that compliance with the conditions specified in s 190C(3) had been demonstrated. At the same time, the delegate considered, but rejected, contentions made on behalf of the State that the application also failed to comply with several other provisions of the NTA. The delegate noted that the application was a combination of three applications, each of which was given to the Registrar under s 61 of the Old Act “and taken to have been made to the Federal Court in accordance with [Transitional Provisions] … item 6, case 3”. (By Item 6, Case 3 of the Transitional Provisions where, at the commencement of the amendments to the NTA, an application is not finalised, it “is taken to have been made to the … Court”.) In considering whether s 190C(3) had been complied with, the Registrar’s delegate said:“The combined Wongatha application is the only application listed above that has been considered under section 190A before the Maduwongga combined application, and so only it has been ‘not removed’ from the Register of Native Title Claims in terms of s.190C(3)(c). It is therefore only in relation to the Wongatha claim that there may need to be any enquiry required by s.190(3)(b).It is not contested by the Maduwongga applicants that there are members common to each of the Maduwongga and Wongatha claims. The applicants representative, in a letter to the Tribunal on 2 March 1999 stated‘As indicated in the genealogy at figure 3.4 of the report, the mother of the applicants has a Waljen identification and they may therefore be entitled to claim membership of the Native Title Claim Group for the recently combined Native Title Claim of the Wongatha Claim Group which geographically overlaps the current application in the vicinity of its northern boundary.However, none of the applications which were combined to form the Wongatha claim was on the register of Native Title Claims when the current application was made. Therefore, the preconditions for the Registrar needing to [be] satisfied that no person included in the Native Title Claim Group for the current application was a member of a Native Title Claim Group for the Wongatha claim do not exist.’Therefore the condition has to be considered further – there are persons in common, the area of the applications overlap and the previous application (Wongatha) was found to comply with s.190A.What remains to be considered was whether an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made (section 190C(3)(b)).…. To determine what the provision requires it is necessary to look at the meaning of the phrase ‘when the current application (Maduwongga) was made’.It is necessary to look at each of the pre-combination applications to ascertain the relevant dates. It is also necessary to cross match these dates with their associated Wongatha pre-combination applications.It is necessary to then ask if any of the separate pre-combination Wongatha applications, which overlapped any of the pre-combination Maduwongga applications, were on the Register when any of those pre-combination Maduwongga applications were made.There are no pre-combination Wongatha claims that were on the Register before WC94/3 Maduwongga or WC95/11 Maduwongga People #2.Maduwongga people #3 was registered on 8 April 1998. The following pre-combination Wongatha claims overlap this claim and were on the Register prior to 8 April 1998:Ngurludharra/Waljen WC95/20 Registered 14 July 1995Bibila Lungutjarra WC96/12 Registered 2 February 1996Milangka-Purungu (Wongatha) WC96/42 Registered 19 April 1996Bibila Lungutjarra #3 WC96/76 Registered 26 June 1996United North East WC97/35 Registered 26 May 1997There are therefore five applications now combined to form the Wongatha application which overlap an application, now combined to form the Maduwongga application, which were made and registered prior to that application being made.The Maduwongga combined application therefore does not satisfy the conditions in section 190C(3).” (Emphasis added)DECISION OF THE PRIMARY JUDGE

Ratio Decidendi

Legal Principle Established

The judgment of French J on the judicial review application is now reported as Strickland (on behalf of the Maduwongga People) v Native Title Registrar (1999) 168 ALR 242. Judicial review was sought before his Honour upon several grounds, including a contention that the Registrar had not construed s 190C(3) correctly. The State was joined as a respondent to the proceeding. The State contended that the Registrar had incorrectly construed s 190C(3) in one particular respect, in an argument which it maintained before French J and before us. The State also contended, and still contends, that the Registrar should, in any event, have declined registration on other grounds, which relate to the sufficiency of the information provided in the application and its supporting affidavit.Operation of the “overlap” conditions (s 190C(3)) The primary Judge held that the Registrar had erred in finding that the Maduwongga combined application did not satisfy the conditions in s 190C(3). His Honour said that 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. The Registrar would have to determine whether there was an entry relating to the claim in the previous application which was on the Register when the current application was made. The Registrar 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. The learned primary Judge noted the history of the combined Wongatha application, including its acceptance for registration on 26 February 1999 pursuant to s 190A. For the purposes of s 190C(3)(b), this was the date from which it could be said 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 question then was whether the combined Maduwongga application was “made” before or after that date – if before, then s 190C(3) could not prevent its registration: for that provision to operate, “there must be a s 190A tested entry in place on the register in respect of the ‘previous’ application at the time when the ‘current’ application is made” (at 252). French J said (at 252):“The Registrar’s delegate approached this question by asking whether ‘any of the separate pre-combination Wongatha applications which overlapped any of the pre-combination Maduwongga applications were on the Register when any of those pre-combination Maduwongga applications were made’. On any view, this was an erroneous test because it omitted to address the requirement that a relevant previous application must be on the Register ‘as a result of consideration of the previous application under s 190A’. In this case, none of the previous applications relied upon by the delegate was the subject of consideration under s 190A prior to any of the pre-combination Maduwongga applications being made. So, even if the condition under s 190C(3) is applied to the various pre-combination applications as it was in this case, the condition must be satisfied. That is to say, the delegate erred in finding that the Maduwongga combined application did not satisfy the condition in s 190C(3).”