Wiri People v Native Title Registrar

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FEDERAL COURT OF AUSTRALIA

Wiri People v Native Title Registrar [2008] FCA 574

NATIVE TITLE – Registration of native title claim – Application for review of Native Title Registrar’s decision refusing registration – Whether Registrar erred in making decision – Proper construction of Registrar’s function under s 190C(4)(b) of the Native Title Act 1993 (Cth)

Held: The application is dismissed. The Registrar did not err in application of s 190C(4)(b). Decision under s 190C(4)(b) is an administrative decision. In light of different requirements of sections 190C(2) and 190C(4)(b), principles applicable to decision of Registrar under s 190C(2) not relevant to decision of Registrar under s 190C(4)(b). Section 190C(4)(b) requires Registrar to be satisfied as to identity of claimed native title holders. Registrar entitled under s 190C(4)(b) to look at information other than application to determine whether applicant authorised to make application by all the other persons in native title claim group.

Native Title Act 1993 (Cth) s61, s62, s190A, s190B, s190C(2), s 190C (4)(b), s190D, s203BE, s253

Gudjala People #2 v Native Title Registrar [2007] FCA 1167 cited
Northern Territory of Australia v Doepel (2003) 133 FCR 112 distinguished
Risk v National Native Title Tribunal (2000) FCA 1589 discussed
Strickland v Native Title Registrar (1999) 168 ALR 242 applied
Wakaman People No 2 v Native Title Registrar (2006) 155 FCR 107 cited
Western Australia v Strickland (2000) 99 FCR 33 applied

LEN WATSON, VASSA HUNTER, NANCY RIEHL (JOINTLY, ON BEHALF OF THE WIRI PEOPLE) v NATIVE TITLE REGISTRAR and STATE OF QUEENSLAND

QUD 196 OF 2007

COLLIER J
29 APRIL 2008
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 196 OF 2007

BETWEEN:

LEN WATSON
First Applicant

VASSA HUNTER
Second Applicant

NANCY RIEHL
Third Applicant

(JOINTLY, ON BEHALF OF THE WIRI PEOPLE)

AND:

NATIVE TITLE REGISTRAR
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

29 APRIL 2008

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 196 OF 2007

BETWEEN:

LEN WATSON
First Applicant

VASSA HUNTER
Second Applicant

NANCY RIEHL
Third Applicant

(JOINTLY, ON BEHALF OF THE WIRI PEOPLE)

AND:

NATIVE TITLE REGISTRAR
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGE:

COLLIER J

DATE:

29 APRIL 2008

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. I have before me an amended application by Len Watson, Vassa Hunter and Nancy Riehl jointly on behalf of the Wiri People (“the applicant”) to review a decision of a delegate of the first respondent, the Native Title Registrar (“the Registrar”) not to accept the Wiri People #2 Claimant Application (QUD 6251 of 1998) (“the Wiri #2 Application”) for registration under section 190A Native Title Act 1993 (Cth) (“the Act”). The decision was made by the delegate on 24 May 2007. The jurisdiction of the Court to review a decision of the Registrar not to accept a claim for registration is…

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Details
Case
[2008] FCA 574
Decision Date

CaseChat Overview and Summary

The Wiri People sought to have their Wiri #2 Application for registration of native title claims accepted by the Registrar. The Registrar had rejected the application, finding that the applicant was not authorised by all the other persons in the native title claim group. The applicants sought judicial review of this decision. The key legal issues were whether the Registrar's role under section 190A of the Native Title Act required consideration of the composition of the native title claim group, and whether the Registrar was correct to find that the applicant was not authorised by all the other persons in the claim group. The court found that the Registrar's role did require consideration of the composition of the claim group. However, the court found that there was insufficient evidence to determine the proper composition of the Wiri People claim group. The evidence was contentious and uncertain. Therefore, the Registrar was correct to find that the applicant was not authorised by all the other persons in the claim group. The application for judicial review was dismissed.

Orders

Orders of the court

1. The application be dismissed.

Background

Background to the litigation

The relief sought by the applicant is as follows :A.An order setting aside the decision of the Registrar to not accept the Wiri #2 Application for registration effective as from 24 May 2007B.An order directing the Registrar to accept the Wiri #2 Application for registration and include in the Register of Native Title claims details of the application with effect from 24 May 2007C.Such other orders as the Court thinks just and necessary. BACKGROUND The Wiri #2 Application was first entered on the Native Title Register on 2 April 1998. The application covered a broad area of country in Central Queensland, the eastern boundary of which abutted and extended to offshore islands beyond the coastline to the north and south of Mackay and the western boundary of which was located well inland of the coastline. On 30 September 1998 section 190A was amended to subject native title applications to a registration test. In 1999 and 2000 the Wiri #2 Application was amended to decrease the country to “all parcels of unallocated state land” within the original broad area of country. Each amendment was subjected to the registration test and each amendment was successful in being registered. The Wiri #2 Application was again amended on 7 November 2006 and referred by the Court to the Registrar on 10 November 2006. The principal changes as a result of this amendment were :·A re-instatement of the broad country claim intended when the application was first made in April 1998, with some reduction so as not to extend to any offshore islands;·A new description of the native title claim group in the Wiri #2 Application, which continued to be generally described as the Wiri People but which is now specifically identified as the descendants of 10 sets of apical ancestors. This contrasted with the earlier description of the group as the descendants of 5 sets of apical ancestors, less a number of individuals said to be specifically excluded;·Authorisation of a new applicant as a result of a fresh authorisation process undertaken in September 2006 by the native title claim group in the Wiri #2 Application.DECISION OF DELEGATE OF THE REGISTRAR In her decision the delegate of the Registrar observed that the re-instatement of the original broad country claim meant that the Wiri#2 Application now overlapped with another application for the Wiri People, namely the Wiri Core Country Claim application (QUD 372/06), which had been certified by the Central Queensland Land Council under section 203BE. The delegate of the Registrar found that the application met the requirements under ss 61, 62, 190B and 190C (5) of the Act. However because the Wiri #2 Application was not certified under s 203BE, s 190C (4)(b) required the Registrar to be satisfied that the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group. The delegate found that the application failed to satisfy the requirements of s 190C (4)(b). In particular the delegate said at pages 23-24 of her Reasons for Decision:The evidence that I have reviewed about the proper composition of the native title claim group is conflicting and contentious. The Wiri #2 applicant makes serious allegations against the CQLC in relation to the performance of its certification functions. These allegations are strenuously denied by the CQLC, who continue to act for the Wiri Core applicant and who have provided me with the details of the research they have undertaken in relation to the identity of the apical ancestors for the Wiri People. It is the position of the Wiri #2 applicant that it is not for the CQLC to impose a description of their group of society, but for the Wiri People themselves to define how they are to be described. The meeting notice... for the authorisation meeting at which the native title claim group description was finally agreed in fact only invited the very persons ultimately described in the Wiri #2 application. I do not accept that such a process can be seen as having some kind of binding or ultimate authority as to the identity who must authorise the applicant, pursuant to either s. 190C(4)(b) or 61 (1). I refer to O’Loughlin J in Risk at [60] where he said that a native title claim group is not established or recognised merely because a group of people (of whatever number) call themselves a native title claim group.Justice O’Loughlin in Risk went on to say at [60] that it is incumbent on the delegate to be satisfied that the claimants truly constitute such a group, and the applicant should be seen to be authorised by all persons who relevantly hold the common or group rights (cf s61 (1)). And finally at [60] Justice O’Loughlin said that where the group named or described in the application is not the native title claim group defined in s.61 (1) but a part only of the group it becomes impossible to accept the application for registration.It seems to me that the identity or composition of the Wiri People native title claim group is an intractable dispute of many years standing. I have conducted searches of the Tribunal’s records and see that the Wiri #2 application and the Wiri Core application are but just two of a number of applications that have been made over the years by differently described or differently composed groups of Wiri People. The dispute amongst those who claim to be Wiri is not one that I can decide or resolve in the course of this administrative decision as it is not my role to determine the identity of all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed in the area of this application.The evidence about the identification of the native title holders is contentious and uncertain. In conclusion I cannot be satisfied that the group described in the application before me is the whole of the native title claim group, as that group is defined in s.61 (1). It follows then that I cannot be satisfied that the applicant is authorised to make the application and deal with matters arising in relation to it by all the other persons in the native title claim group.GROUNDS OF THE APPLICATION

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COLLIER J
The Wiri #2 Application was again amended on 7 November 2006 and referred by the Court to the Registrar on 10 November 2006. The principal changes as a result of this amendment were :·A re-instatement of the broad country claim intended when the application was first made in April 1998, with some reduction so as not to extend to any offshore islands;·A new description of the native title claim group in the Wiri #2 Application, which continued to be generally described as the Wiri People but which is now specifically identified as the descendants of 10 sets of apical ancestors. This contrasted with the earlier description of the group as the descendants of 5 sets of apical ancestors, less a number of individuals said to be specifically excluded;·Authorisation of a new applicant as a result of a fresh authorisation process undertaken in September 2006 by the native title claim group in the Wiri #2 Application.DECISION OF DELEGATE OF THE REGISTRAR In her decision the delegate of the Registrar observed that the re-instatement of the original broad country claim meant that the Wiri#2 Application now overlapped with another application for the Wiri People, namely the Wiri Core Country Claim application (QUD 372/06), which had been certified by the Central Queensland Land Council under section 203BE. The delegate of the Registrar found that the application met the requirements under ss 61, 62, 190B and 190C (5) of the Act. However because the Wiri #2 Application was not certified under s 203BE, s 190C (4)(b) required the Registrar to be satisfied that the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group. The delegate found that the application failed to satisfy the requirements of s 190C (4)(b). In particular the delegate said at pages 23-24 of her Reasons for Decision:The evidence that I have reviewed about the proper composition of the native title claim group is conflicting and contentious. The Wiri #2 applicant makes serious allegations against the CQLC in relation to the performance of its certification functions. These allegations are strenuously denied by the CQLC, who continue to act for the Wiri Core applicant and who have provided me with the details of the research they have undertaken in relation to the identity of the apical ancestors for the Wiri People. It is the position of the Wiri #2 applicant that it is not for the CQLC to impose a description of their group of society, but for the Wiri People themselves to define how they are to be described. The meeting notice... for the authorisation meeting at which the native title claim group description was finally agreed in fact only invited the very persons ultimately described in the Wiri #2 application. I do not accept that such a process can be seen as having some kind of binding or ultimate authority as to the identity who must authorise the applicant, pursuant to either s. 190C(4)(b) or 61 (1). I refer to O’Loughlin J in Risk at [60] where he said that a native title claim group is not established or recognised merely because a group of people (of whatever number) call themselves a native title claim group.Justice O’Loughlin in Risk went on to say at [60] that it is incumbent on the delegate to be satisfied that the claimants truly constitute such a group, and the applicant should be seen to be authorised by all persons who relevantly hold the common or group rights (cf s61 (1)). And finally at [60] Justice O’Loughlin said that where the group named or described in the application is not the native title claim group defined in s.61 (1) but a part only of the group it becomes impossible to accept the application for registration.It seems to me that the identity or composition of the Wiri People native title claim group is an intractable dispute of many years standing. I have conducted searches of the Tribunal’s records and see that the Wiri #2 application and the Wiri Core application are but just two of a number of applications that have been made over the years by differently described or differently composed groups of Wiri People. The dispute amongst those who claim to be Wiri is not one that I can decide or resolve in the course of this administrative decision as it is not my role to determine the identity of all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed in the area of this application.The evidence about the identification of the native title holders is contentious and uncertain. In conclusion I cannot be satisfied that the group described in the application before me is the whole of the native title claim group, as that group is defined in s.61 (1). It follows then that I cannot be satisfied that the applicant is authorised to make the application and deal with matters arising in relation to it by all the other persons in the native title claim group.GROUNDS OF THE APPLICATION

Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

In summary, the Registrar submitted in reply that s 190C (4)(b), on its proper construction, required the delegate’s satisfaction that the applicant was authorised to make the application by all the other persons in the native title claim group (as that phrase is defined in ss 253 and 61(1) of the Act) and this requirement involved consideration of the composition of the native title claim group. In other words, the Registrar’s role goes beyond merely accepting the correctness of an applicant’s assertion that the persons who, according to their traditional laws and customs, hold communal rights and interests comprising the particular native title claimed are confined to those named or described in the application.Consideration The term “native title claim group” for the purposes of the Act is defined by s 253 which, so far as relevant, reads:native title claim group means :(a)in relation to a claim in an application for a determination of native title made to the Federal Court - the native title claim group mentioned in relation to the application in the table in subsection 61 (1)... So far as relevant for the purposes of this application the “native title claim group” in s 61(1) is as follows :(1)A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group ... The requisite approach of the Registrar to considering claims is found in s 190A, which provides:(1) If the Registrar is given a copy of a claimant application under section 63 or subsection 64 (4), the Registrar must, in accordance with this section, consider the claim made in the application....(3)In considering a claim under this section, the Registrar must have regard to:(a) information contained in the application and in any other documents provided by the applicant; and(b) any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and(c) to the extent that it is reasonably practicable to do so in the circumstances - any information supplied by the Commonwealth, a State or a Territory....(4) Without limiting subsection (3), information mentioned in that subsection may include information about current or previous non-native title rights and interests in, or in relation to, the land or waters in the area covered by the application...(6) The Registrar must accept the claim for registration if the claim satisfies all of the conditions in :(a) section 190B.... and(b) section 190C....In any other case, the Registrar must not accept the claim for registration. Pursuant to s 190A, s 190C deals with procedural and other matters, and provided as follows:1. This section contains the conditions mentioned in para 190A (6)(b)2.The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by ss 61 and 62…4. The Registrar must be satisfied that either of the following is the case :(a)the application has been certified under Pt 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or(b)the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.5.If the application has not been certified as mentioned in para (4)(a), the Registrar cannot be satisfied that the condition in subs (4) has been satisfied unless the application :(a)includes a statement to the effect that the requirement set out in para (4)(b) has been met; and(b)briefly sets out the grounds on which the Registrar should consider that it has been met.