Siopis J
This matter is an application to set aside a decision of a delegate of the National Native Tribunal Registrar under s 190F(1) of the Native Title Act 1993 (Cth) (NTA).
The applicants, on behalf of the Swan River People, sought a review of the member's decision rejecting the applicants’ native title claim on the basis that the claim did not meet the conditions in ss 190C(3), 190B(5) and 190B(6) of the NTA.
The applicants claimed that, in considering conditions under sections 190B(5)(a) and (b) of the NTA, the tribunal member erred in his interpretation of the relevant case law and the decision was manifestly unreasonable.
Relevantly, s 190B(5) of the NTA provides:
(5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:
(a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and
(b) 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; and
(c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
Tribunal decision
The Tribunal member found that the material provided by the applicants did not demonstrate a factual basis which was sufficient to support the assertion that the claim group have, and their predecessors had, an association with that part of the claim area over the sea area west of Rottnest Island.
This was fatal to the acceptance of the claim for registration because the member found that it was necessary for the material to provide a factual basis sufficient to support the assertion that the claim group have, and their predecessors had, an association with the whole area of the claim. In support of that construction of s 190B(5)(a), the member referred to the observations of Dowsett J in Gudjala People # 2 v Native Title Registrar [2007] FCA 1167 (‘Gudjala People # 2’) at [52]:
"I do not mean that all members [of the claim group] must have such association at all times. However there must be evidence that there is an association between the whole group and the area."
The member considered evidence that some of the claimants were turtle hunters and observed that this hunting was apparently focused on the Swan River coastal plain and there had been no suggestion that the hunting of turtles took place other than on the landward portion of the claim area. Evidence also referred to fishing and this related to the landward portion of the claim area. The member observed that there was a reference to Rottnest Island in some of the evidence but the reference was ambiguous and did not provide a solid basis for inferring that the claim group’s association with the island was traditional. The member also referred to Dreaming stories that related to waters immediately off the coast and the islands near the mainland but the boundaries of the claim extended far beyond Rottnest Island and the distance from the western point of Rottnest Island to the outer boundary of the sea claim was 42 nautical miles.
Accordingly, the member found that there was a dearth of material establishing any association with this massive expanse of sea. The member concluded that the absence of any evidence which would support the assertion that the traditional laws and customs of the claim group apply to the vast expanse of sea which forms more than half of the claim area, is an insuperable barrier to a positive finding pursuant to s 190B(5)(b).
As consequence of these findings, the member also found that the condition in s 190B(6) of the NTA had not been met.
Consideration
Ground 1 - erroneous interpretation of case law
The Court concluded that the member did not make an error of law in his construction of the requirement imposed under s 190B(5)(a) of the NTA.
Siopis J noted that the case of Martin v Native Title Registrar [2001] FCA 16 is the most relevant in the circumstances and the statutory requirement is to provide material which provides a factual basis sufficient to support the asserted association with the entire area claimed.
The Court considered the observations in Gudjala People # 2, to which the member referred, may not have been directly on point, but that did not result in any error on the part of the member in the construction of that section.
Ground 2 - manifestly unreasonable
The applicant complained that:
the member’s finding that the material advanced by the applicant did not provide a factual basis sufficient to support the assertion of an association, whether physical or spiritual, with the whole claim area,
the member, without justification, treated the sea portion of the claim differently to the land portion of the claim;
the standard adopted by the member exceeded the standard for the detail required in the material provided in support of a claim identified by the Full Court in Gudjala People # 2 and the Full Court required no more than a “general description of the factual basis of the claim”.
The Court found that the member was entitled to find that the quality of that material was not sufficient to demonstrate compliance with s 190B(5)(a) of the NTA. .
The Court concluded that the material provided in support of the sea claim west of Rottnest Island was at a high level of generality and, significantly, lacked geographic particularity in relation to the boundaries of the sea portion of the claim west of Rottnest Island.
Conclusions
The Court concluded that there was no error in the way the member dealt with the conditions in s 190B5(b) or s 190B(5)(c) of the NTA and the member’s decision was not manifestly unreasonable.
Orders
The application for review was dismissed.