Wintawari Guruma Aboriginal Corporation RNTBC and Registrar of Aboriginal and Torres Strait Islander Corporations

Case •

[2025] ARTA 1900

•

23 September 2025

Wintawari Guruma Aboriginal Corporation RNTBC and Registrar of Aboriginal and Torres Strait Islander Corporations [2025] ARTA 1900 (23 September 2025)

Applicant/s:  Wintawari Guruma Aboriginal Corporation RNTBC

Respondent:  Registrar of Aboriginal and Torres Strait Islander Corporations

Tribunal Number:                2024/4701

Tribunal:Deputy President K McMillan KC

Place:Brisbane  

Date:23 September 2025

Decision:  The Tribunal affirms the decision under review.

……….….… [SGD]……….….…

Deputy President K McMillan KC

Catchwords

Statutory Interpretation - Corporations (Aboriginal and Torres Strait Islander) Act 2006 – Whether a rule purporting to prevent an individual member reapplying for a prescribed period where they have been expelled on the basis of violent and threatening conduct is consistent with s141-25(2) – s 150-35 – cancellation power

Legislation

Corporations (Aboriginal and Torres Strait Islander) Act 2006
Administrative Review Tribunal Act 2024
Native Title Act 1993 (Cth)
Native Title Legislation Amendment Act 2021 (Cth)

Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)

Cases

Hughes v State of Western Australia [2007] FCA 365
Hughes v State of Western Australia (no 2) [2007] FCA 1267
Stevens v Wintawari Guruma Aboriginal corporation RNTBC [2016] FAC 149
Ward v Western Australia [2000] FCA 191
Project Blue Sky v Australian Broadcasting Association (1998) 194 CLR 355
Sandy v Yindjibarndi Aboriginal Corp RNTBC (No 4) (2018) 126 ACSR 370

Blair v First Nations Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda People Aboriginal Corporation RNTBC [2022] FCA 1520

Secondary Materials

Wintawari Guruma Aboriginal Corporation Rule Book
Registrar’s Policy Statement PS-10
Revised Explanatory Memorandum to the Native Title Legislation Bill 2020

Revised Explanatory Memorandum to the Native Title Legislation Amendment Act 2021

Statement of Reasons

  1. Wintawarri Guruma Aboriginal Corporation (WGAC) is the registered native title body corporate that represents the interests of the Eastern Guruma people over traditional lands covering 6500 square kilometres from near Tom Price and the Karijini National Park in Eastern Pilbara region of Western Australia.[1]

    [1] Applicant’s Statement of Facts, Issues and Contentions

  2. The current proceedings before the Tribunal relate to the insertion of a new rule to the WGAC rule book, which provides for the constitution and governance adopted pursuant to S63-1 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).[2] The amended rule purported to prevent an individual member reapplying for a prescribed period, having been expelled on the basis of violent and threatening conduct.

    [2] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

  3. Sub-rule 3.1(c) of the WGAC rule book, in the form adopted by a special resolution of WGAC’s members, was as follows

    3.1 Who is eligible?

    Subject to these rules, an Aboriginal person is eligible for membership of the corporation if the person:

    (a)Is at least 18 years of age;

    (b)Is a common law holder; and

    (c)has not, at any time within the 5 years preceding the date of the person’s application for membership, had their membership of the corporation cancelled in accordance with sub-rules 3.8 and 3.10 on the grounds that the person has misbehaved in a manner that has significantly interfered with the operation of the corporation or a meeting of the corporation”. (emphasis added).

  4. Sub-rule rule 3.1(c) was originally registered by a delegate of the Registrar pursuant to s 69-30 of the CATSI Act. WGAC seeks review of a subsequent decision of a delegate of the Respondent (the Huey decision).

  5. The Tribunal, upon review, is able to exercise all the powers and discretion conferred upon the Registrar and may affirm, vary or set aside the decision pursuant to s 105 of the Administrative Review Tribunal Act 2024. The Tribunal is to make ‘the correct or preferable decision’.[3]

    [3] Frugtniet v ASIC (2019) 266 CLR 250 at [14], referring to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth).

  6. WGAC amended its rule book to include the relevant rule in response to the particular and ongoing behaviour of a member who had their membership cancelled by special resolution at a general meeting of WGAC on 8 August 2023 and subsequently re-applied for membership.

  7. The conduct of that person that led to the cancellation of their membership was extreme by any measure. That person had acted and continued to act in an extremely disruptive, abusive and violent manner towards WGAC officers and employees, and towards other common law holders and their family members. That person’s behaviour has involved repeated threats of violence and acts of violence. This has required, amongst other things, the WGAC Chairperson to obtain a final restraining order in relation to that person.

  8. A general meeting of WGAC was held on 30 November 2023, at which a special resolution was passed adopting the proposed sub-rule 3.1(c) into the WGAC rule book. On 22 December 2023, WGAC requested that the Office of the Registrar of Indigenous Corporations (ORIC) register that change. On 8 January 2024, Anne Lewis, a delegate of the Registrar, made a decision to register that change (the Lewis Decision).[4] This decision was made pursuant to s 69-30 of the CATSI Act.

  9. However, on 13 February 2024, acting pursuant to s 69-35 of the CATSI Act, another delegate of the Registrar, Catharine Turtle (the Turtle decision) made decision to substitute and register a new cl 3.1 (c), which read as follows:

    …; and

    (c) has not had their membership cancelled under sub-rules 3.8 and 3.10 in the two years prior to the date of the person’s application and where the members have decided by resolution they are satisfied that person will have their interests indirectly represented within the corporation during the two-year period.

  10. On 11 March 2024, WGAC requested an internal review of the Turtle Decision seeking the reinstatement of sub-rule 3.1(c) as it had originally been proposed. On 7 June 2024, another delegate of the Registrar, Andrew Huey, made a decision to remove sub-rule 3.1(c) from the rule book altogether (the Huey Decision). This decision was made pursuant to s 620-5 of the CATSI Act. In summary, the reasoning for that decision was as follows:

    (1)Section 141-25(2) of the CTASI Act requires that a common law holder either be a member of the RNTBC or be ‘represented indirectly by a member or members of the corporation’: [23].

    (2)There must be an additional mechanism in the rule book providing for indirect representation of the excluded person: [25].

    (3)That mechanism must result in there being ‘a current member (or members) capable of adequately representing the interests of an excluded common law holder’: [26].

    (4)There are ‘theoretically a range of ways’ in which a corporation could provide for this form of indirect representation, and the manner of doing so was a decision for the members: [3].

    ISSUES

  11. The parties have agreed and filed an Agreed Statement of Issues in Dispute (ASIFD), which sets out the issues that arise for determination. In summary, the issues are:

    (a)whether sub-rule 3.1(c), as originally proposed by WGAC, was consistent with the requirements of the CATSI Act, in particular of s141-25(2) of the CATSI Act; and

    (b)in light of the answer to the first question, to identify the correct and preferable decision in relation to the registration of sub-rule 3.1(c).

  12. Registration under s 193 of the NTA contemplates that the body has been determined to hold the native title rights and interests concerned on trust for the common law holders of native title. This is the case in relation to WGAC, following the decisions of the Federal Court (Bennett J) in Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 and Hughes on behalf of the Eastern Guruma People (No 2) [2012] FCA 1267.

  13. The determination of whether a body holds native title on trust for the common law holders is made pursuant to s 56 of the NTA. That body, following registration pursuant to s 193 of the NTA, must then perform the functions given to it under the NTA and (pursuant to ss 56- 58 of the NTA) any regulations made under it. The applicable regulations are the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (NTA Regulations).

  14. Regulation 6(1) of the NTA Regulations provides that the functions of a RNTBC such as WGAC are:

    (a)to manage the native title rights and interests of the common law holders of those rights and interests;

    (b)to invest or otherwise apply the money held in trust as directed by the common law holders;

    (c)to consult with the common law holders in accordance with regulations 8, 8A and 8B;

    (d)to perform any other function relating to the holding in trust of the native title rights and interests as directed by the common law holders.

  15. Regulation 6(2) provides that, in order to perform its functions, a RNTBC may,

    on behalf of the common law holders or persons entitled to, or who claim to be entitled to, compensation:

    (a)consult other persons or bodies; and

    (b)enter into agreements; and

    (c)exercise procedural rights; and

    (d)accept notices required by any law of the Commonwealth, a State or a Territory to be given to the common law holders or persons entitled to, or who claim to be entitled to, the compensation

  16. Regulations 8 and 8A set out various consultation and consent requirements imposed upon RNTBCs when making native title decisions. In Stevens v Wintawari Guruma Aboriginal Corporation RNTBC [2016] FCA 149 (Stevens) at [57], Barker J summarised the requirements of regulation 8 as follows:

    Regulation 8 requires the relevant PBC to consult with and obtain the consent of the common law holders in relation to a range of decisions. If there is a particular process of decision-making that, under traditional laws and customs, must be followed in  relation to the giving of consent, then the consent must be given in accordance with that process. Otherwise, the consent must be in accordance with a process of decision- making agreed to or adopted by them. (This reflects s 203BC(2) of the NTA).

  17. The overall nature and effect of this regime was considered in Ward v Western Australia [2000] FCA 191 (Ward). Beaumont and von Doussa JJ said at [197] as follows:

    The Regulations provide for decision making that involves consultation with the common law holders of native title rights and interests. The Regulations establish a regime under which decisions concerning the management of native title rights and interests will be taken through the registered native title body corporate. The registered native title body corporate becomes the entity that speaks for and makes decisions on matters concerning the native title in dealings with public authorities and members of the public other than the common law holders themselves…

  18. The NTA Regulations considered by Barker J in Stevens and by Beaumont and Von Doussa JJ in Ward have since been amended. However, the requirements of regulation 8 as described by Barker J and the nature and effect of the regime considered by Beaumont and Von Doussa JJ are fundamentally the same today.

  19. In short, pursuant to the requirements of the NTA and the NTA Regulations, the RNTBC becomes the representative of the common law holders and acts on their behalf.

  20. For the reasons set out below, the relevant provisions of the CATSI Act must be construed in accordance with the requirements of the NTA.

    The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act)

  21. Section 66-1 of the CATSI Act sets out various ‘internal governance’ requirements, including in relation to the constitution and internal governance rules of an Aboriginal and Torres Strait Islander corporation. Relevantly, it provides that:

    The corporation’s constitution must cover the matters that the CATSI Act specifies must be covered in the corporation’s constitution: s66-1(3).

    a.The corporation’s constitution must provide for the resolution of disputes between the corporation and any person who claims to be a common law holder of native title, regardless of whether that person is a member of the corporation, including as to “the corporation’s performance of its functions under the Native Title legislation [ie the NTA and associated regulations]”: s 66-1(3B).

    b.The corporation’s internal governance rules must be “adequate and workable, given the context in which the corporation operates”: s 66-1(5)(b).

    c.The corporation’s internal governance rules must be “consistent with this Act”: s 66-1(5)(c).

    d.The corporation’s internal governance rules must be consistent with the NTA if the corporation is a RNTBC: s 66-1(5)(d).

  22. Section 141 of the CATSI Act addresses eligibility for membership. Section 141-20 of the CATSI Act provides that ‘[a]n individual who is at least 15 years of age is eligible for membership of an Aboriginal and Torres Strait Islander corporation’.

  23. However, this need not be the only eligibility requirement. Section 141-25(2) of the CATSI Act provides as follows:

    “141‑25 Corporation may have other eligibility requirements for membership”

    a.    The constitution of an Aboriginal and Torres Strait Islander corporation may provide for other eligibility requirements for membership of the corporation.

    b.    If the corporation is a registered native title body corporate, the constitution must include eligibility requirements for membership that provide for all the common law holders of native title to be represented, directly or indirectly.

  24. Section 150-15(2) of the CATSI set out grounds on which an Aboriginal and Torres Strait Islander corporation can cancel a person’s membership. In relation to a RNTBC, s 150-15(2A) provides that membership may not be cancelled on any other ground.

  25. One of the permissible grounds is set out in s 150-35(3) of the CATSI Act. This provides as follows:

    (3)The corporation may cancel the membership by special resolution in general meeting if the general meeting is satisfied that member has behaved in a manner that significantly interfered with the operation of the corporation or of corporation meetings.

  26. It is this provision which the Applicant contends was invoked by the passing of the special resolution of WGAC to insert rule 3.1(c)

    Registrar’s Policy Statements PS-10

  27. The Registrar issued a policy statement, PS-10: Registered native title bodies corporate, last updated 12 February 2024 (policy statement), which contains some commentary on eligibility requirements for RNTBC’s.

  28. The policy statement is, pursuant to paragraph 1.1, guidance only. It was not contended that it, in any way, affected the proper construction and operation of the CATSI Act. The policy statement at that time provided:

    [5.7]The Registrar recognises the practical difficulties reconciling the eligibility requirements imposed by section 151-25(2) and the cancellation of membership provisions under section 150-35 that enable a corporation to cancel the membership of a common law holder who has ‘significantly interfered with operations of the corporation’.

    [5.8]The Registrar is of the view that the members must give consideration as to how a member can be indirectly represented if the corporation seeks to exclude common law holders who have had their membership cancelled from applying for membership again.

    [5.9]The Registrar further considers that the exclusion of an otherwise eligible common law holder for a period of more than two years may amount to a form of practical exclusion from eligibility that is impermissible under section 141-25(2).

    [5.10] TheRegistrar will only consider changes to a rule book that exclude previously cancelled members from eligibility where the members will also be required to consider and be satisfied that the person will have their interests indirectly represented within the corporation during the two-year period.

    The proper construction of s 141-25(2)

    The relevant principles

29.  Statutory construction is "the process of attributing meaning to statutory text".[5] As Gaegeler CJ, Gordon, Jagot and Beech-Jones JJ very recently reemphasised (citing well known authorities of the High Court omitted here):[6]

[5] Thiess v Collector of Customs (2014) 250 CLR 664 at [22].

[6] Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35 at [4].

The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – insofar as that purpose is discernible from the statutory text and context. In the construction of a provision of a Commonwealth statute, the meaning that would best achieve the statutory purpose so discerned is to be preferred to each alternative meaning.

30.  The Tribunal must seek to give meaning to every word of the statutory provision and should avoid an interpretation that leaves clauses or sentences superfluous.[7]

[7] Project Blue Sky v Australian Broadcasting Association (1998) 198 CLR 355 at [71].

WGAC's case

31.  WGAC's case can be reduced to the following key propositions:

(d) Section 141-25(2) must be understood as a provision that facilitates the imposition of eligibility requirements for membership of the corporation. It should not be understood as abstracting from that power, or in some way reducing its breadth.

(e) Section 141-25(2) must be read consistently with the "lead" provision in s 150-35(1) which enables the cancellation of a person's membership if they conduct themselves in a particular way. If a person can have their membership cancelled and then immediately re-apply for membership it would render s 150-35(1) "redundant".

(f)    Common law holders may be represented "indirectly". It is to misconstrue the statute to require that there be some form of "immediate relationship or link" between the common law holder and their representative. It is sufficient for their interests to be broadly represented. That view is supplemented by the fact that there may be common law holders who elect not to become a member; representation must therefore be capable of being achieved despite it not being complete.

(g)  In circumstances where someone who has actively interfered with the proper operation of the RTNBC could sensibly be "represented".

(h)  the respondent has registered other rule books which contain eligibility requirements that exclude a limited class of persons from membership. There is no rational reason to distinguish their exclusion from a narrow and objectively identifiable class of person from the present case.

(i) A time period of an exclusion from membership of up to 5 years is consistent with the CATSI Act.

The respondent’s case

32. The respondent’s primary contention that s 141-25(2) “is directed to ensuring that a RNTBC’s constitution enables all common law holders of native title to be represented within the corporation, through the “mechanism of either personal or representative membership of the corporation”. It argues that WGAC conflates the concept of membership with the representation of common law holders by that RNTBC vis-à-vis the world at large (including as part of satisfying the requirements of the Native Title Act and the NTPBC Regulations).

33.  The respondent’s case was developed as follows:

1)The text of s 141-25 imposes a mandatory requirement upon a  RNTBC  which is expressly concerned with membership of that corporation and therefore the relationship between the RNTBC and individual common law holders of native title is  distinct from the way in which a RNTBC carries out its functions or discharges its obligations with the world at large.

2)The literal and grammatical target of the obligation imposed by the provision is in relation to the RNTBC's eligibility requirements for membership in a way that must provide for all common law holders to be represented (either directly or indirectly).

3)The respondent accepts WGAC's contention (references omitted) "the ordinary meaning of 'represent' includes “to stand or act in the place of” a person, or to speak on their behalf. The Respondent also accepts that the words “directly or indirectly” may cast a wide net, in the sense that s 141-25(2) does not, by its terms, prescribe or limit the form of indirect representation that can be provided for in a RNTBC’s constitution" except in every case, the form of indirect representation must be provided for in the eligibility requirements for membership of the corporation.

4)Nothing in relevant extrinsic material (extracted above) suggests that s 141-25(2) should be construed in any way other than according to its terms.

5)There is no inconsistency or disharmony between the power to cancel a person’s membership for misbehaviour (or some other reason) in s 150-35 and the obligation to comply with s 141-25(2) of the CATSI Act, because the latter provides for two kinds of membership of the RNTBC — personal membership and representative membership. “The former can be cancelled conformably with s 141-25(2) as long as the constitution also provides for the latter.”

Consideration

34. It is clear from the text, context and purpose of s 141-25(2) that a RTNBC's constitution must provide for all common law holders of native title to be represented directly or indirectly in the membership of the corporation. It follows that if a constitution does not do so it will not be consistent with the CATSI Act: see s 66-1(5)(c). In my view, because the WGAC rule book does not provide for a form of indirect membership sub-rule 3.1(c) is not consistent with the statutory requirement in s 141-25(2). Accordingly, the correct and preferable decision is to affirm the reviewable decision.

35. The terms of s 141-25(2) require a RTNBC's constitution to "provide for all common law holders of native title to be represented, directly or indirectly". This means that the constitution "must allow for all common law holders to be represented in the membership of the corporation".[8]

[8] Blair v First Nations Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda People Aboriginal Corporation RNTBC [2022] FCA 1520 at [29].

36.  Neither party suggested that the word "representation" is a term of art that ought to be construed technically or narrowly. Rather, what the legislature seems to have been seeking to achieve is to ensure that a person either personally (ie directly) represents their own interests, or is able to do so through another person (ie indirectly) such as a family member or through some other spokesperson or advocate. The Revised Explanatory Memorandum makes clear that a RNTBC does not need to ensure that all members are personally represented; only that they must be represented in some way.

37.  Contextual support for the critical importance the Parliament has placed on representation can also be seen in the requirement that a director of a Aboriginal and Torres Strait Islander corporation must register a compliant application: s 144-10(3A) of the CATSI Act. That requirement was introduced in the same amending Act that introduced s 141-25(2). By making both of those amendments the Parliament was seeking to "improve the accountability, transparency and governance of RNTBCs, with a particular focus on membership and improved dispute resolution pathways."[9] When understand in its context, therefore, I understand Parliament to be prioritising the representation of those common law holders who wish to be members of the RTNBC.

[9] Explanatory Memorandum, Native Title Legislation Amendment Bill 2020 at [19].

38. When that is understood the cancellation power in s 150-35 of the CATSI Act should not be understood as reading down the plain terms of s 141-25(2). It is not correct to analyse, as WGAC has on its argument, the statutory framework as involving a merry-go-round of cancellation and then readmission to membership.

39. Properly analysed such a situation only arises if a RTNBC has not ensured, consistently with Parliament's direction, that a common law holder who has had their membership cancelled under s 150-35 can be represented indirectly. I do not accept WGAC's submission that a person may be so unreasonable as to be incapable of "representation". The concept of "representation" as I have noted is a flexible one. It is for a RTNBC to appropriately draft its constitution to comply with the legislative requirements in the CATSI Act, but one can imagine the appointment of a representative who can independently reflect the views of such a person.

40. It is not in dispute that WGAC's rule book does not provide for indirect representation of members. It only provides for personal membership. In those circumstances if a person has their membership cancelled and cannot reapply for membership for 5 years as the originally registered sub-rule 3.1(c) contemplated then a common law holder will not be represented, either directly, or indirectly, in the membership of the corporation. Therefore, the sub-rule was inconsistent with the terms of the CATSI Act.

41.  The  decision by the delegate is affirmed.

42.  As the argument proceeded before the Tribunal, whilst some form of substitution for clause 3.1 (c) was formulated, WGAC ought to have an opportunity to consider and craft a rule that would be compliant with the provisions of 141-25.

Dates of hearing:

    24 March 2025

Date final submissions received: 

    20 March 2025

Solicitors for the Applicant:

Alexander Romano – Chalk & Behrendt Lawyers   and Consultants  

Solicitors for the Respondent:

   Lauren Lai – Australian Government Solicitor


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