Griffiths J
In this matter, Griffiths J considered an application for review of a November 2015 decision by the National Native Title Tribunal (NNTT), under s 190F of the Native Title Act 1993 (Cth) (NTA). The NNTT delegate had decided that a claim lodged by the Muthi Muthi People over approximately 34000 square kilometres of land and waters along the Victoria-New South Wales border did not meet the criteria for registration outlined in s 190A of the NTA. Leave was granted to the applicant to amend the claim so as not to overlap with the claim of the Barkandji People, but no amendment was filed prior to this hearing. The respondents in the matter were the Attorney-General of New South Wales, the Registrar of the NNTT, and NTSCORP.
In the initial decision of the NNTT, the delegate of the registrar found that the application did not sufficiently contain the information required by s 62(2) of the NTA, and did not satisfy the requirements of ss 190B(2) and 190C(2). The delegate of the registrar found that there was insufficient evidence to determine if the applicant was part of a native title claim group authorised to make the application under s 190C(4) of the NTA. In the application there were clear discrepancies between written and mapped claim area boundaries, conflicting evidence regarding the authority of the headperson of the Council of Elders, overlap with three native title determination applications, little evidence linking back to sovereignty, and vague definitions of the identity of the Muthi Muthi people.
Griffiths J took into account fresh evidence in reviewing the NNTT decision including an expert report and an indication that the applicant was happy to exclude areas covered by other claims.
Griffiths J found that the delegate’s reliance on Moran v Minister for Land & Water Conservation for New South Wales [1999] FCA 1637 was correct and therefore if authorisation depends on the decision of a body such as an elders council, registration requires evidence that this body exists under customary law, evidence of the nature of its authority and evidence that the body has authorised the application.
Griffiths J found that each of the conclusions come to by the delegate were open on the evidence due to deficiencies in the evidence.
His Honour refused to make orders proposed by the applicant that the Court accept the application for registration, or alternatively that the Court allow the application to proceed without registration.
His Honour determined that no reviewable error had been established and ordered that the application for review be dismissed.
No costs were ordered as they were not sought by either the Attorney-General of NSW or NTSCORP.