Barker J
In this decision the Court considered an application by the Nyiyaparli registered claim group for judicial review of the decision of the Registrar of the National Native Title Tribunal (Registrar) to accept a native title determination application which overlapped with the Nyiyaparli People's registered native title determination claim (Wunna claim).
Summary of Facts
Before the Wunna claim was registered, the Nyiyaparli claim group negotiated two separate indigenous land use agreements (ILUAs) with various resources companies. These ILUAs each covered the whole of the Nyiyaparli claim area, including the area that was now the subject of the Wunna claim.
The Nyiyaparli claimants authorised both ILUAs. The Wunna claimants claimed that they were not invited to the meeting and did not feel they should attend because they were about to have their own claim registered.
After the Wunna claim was accepted it was no longer possible to register the ILUAs because they covered the area of the Wunna claim and the Wunna claimants had not authorised the ILUAs.
The ILUAs were re-negotiated to exclude the area of the Wunna claim and then lodged for registration with the National Native Title Tribunal. The Tribunal notified these in public notices. The Wunna claimants alleged that they were not invited to the meeting and did not attend the meeting.
The Wunna claimants objected to the registration of the ILUAs on the following grounds:
the amended ILUAs are part of comprehensive claim-wide participation agreements over the entire Nyiyaparli and Wunna claim areas; and
the Wunna claimants need to negotiate and be parties to the amended ILUAs because they have a registered claim.
Summary of Grounds of Judicial Review
The Nyiyaparli claimants asked the Federal Court to order the Registrar to remove the Wunna claim from the register of native title claims on the following grounds:
The Registrar had denied them natural justice and procedural fairness by failing to provide them with an opportunity to respond to additional submissions and information filed by the Wunna claimants in support of the Wunna claim. This error was due to the Registrar’s misunderstanding of the reasoning applied in Hazelbane v Doepel (2008) FCA 290 (Hazelbane) (See Related Content).
The Registrar did not consider and decide whether the factual basis of the claimed Wunna native title rights and interests was sufficient.
The Registrar failed to consider whether the Wunna claimants constituted all the members of a native title claim group.
Summary of Decision
Standing
Barker J found that the Nyiyaparli claimants had standing to seek judicial review as their interests were adversely affected by the decision to accept the Wunna claim for registration.
Procedural Fairness
Barker J distinguished the Hazelbane case, where the Registrar’s actions had raised in the applicants a legitimate expectation that they would have the opportunity to make a submission. Barker J considered the Nyiyaparli claimants were afforded the opportunity to make submissions, but were never promised the opportunity to make submissions in reply. In fact, they were told they could not see the Wunna claimants’ additional information. Barker J found that the scheme of the NTA does not comprehend a process of consultation in which another person with a relevant interest will be consulted at every step of the registrar’s decision making process.
Factual basis of asserted native title rights and interests
The Nyiyaparli claimants claimed that the Registrar did not meet her obligations under the NTA to be satisfied that there are sufficient facts to support the assertion:
that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests.
Barker J discussed the regime established within the NTA [at 52 to 64] and noted that the provisions dealing with registration are not concerned with proof that native title exists. His Honour also referred to s 62 NTA, which provides that “a general description” of the factual basis upon which the claim for native title must be set out in the claim. Barker J accepted that the Registrar's decision was based on information provided by the Wunna applicants setting out:
the extent of rights being claimed, including the right to exclude others from the area;
the individuals involved in the claim being descendants of apical ancestors to the Wunna Nyiyaparli; and
the relationship with other Nyiyaparli people, whose standing permission to access and live in the application area are privileges rather than rights and that the Wunna Nyiyaparli maintain the right to withdraw that permission under the laws and customs of Western Desert society.
Barker J concluded that the Registrar had not made any error in the application of the registration test.
Claim Group identification
Barker J was satisfied that the Registrar did consider the issue of the identity of the native title claim group and considered that the traditional and anthropological basis for the assertions made by the Wunna claimants may be contestable, but that it was the Court not the Tribunal which determines the merits of the competing claims. His Honour was also satisfied that the Registrar's approach and consideration of the registration of the Wunna claim did not reveal any error in principle or application.
Orders
All grounds of appeal were dismissed.