Barker J
In this matter, Barker J set aside the National Native Title Tribunal’s (NNTT) decision to accept the Warlangurru #2 native title application for registration. The decision concerned the application of s 190C(3) of the Native Title Act 1993 (Cth) (NTA) where two overlapping claimant applications were made in respect of land and waters in the vicinity of Fitzroy Crossing in the Kimberley Region of Western Australia. The first in time application was the Bunuba people’s, referred to as the Bunuba #2 application. The second application was that of the Warlangurru people, referred to as the Warlangurru #2 application, part of which overlapped the Bunuba # 2 claim area.
It is a strict requirement pursuant to s 190C(3) of the NTA that an application over the same area covered by an earlier application cannot be entered on to the Register of Native Title Claims where any person included in the claim group for the later application is a member of the claim group on the earlier registered application. The applicant sought judicial review of the decision of the Registrar’s delegate on that basis.
The delegate found that Grace Mulligan was not a member of the Bunuba #2 claim group on the basis that any association she has with the claim area is of a historical nature only, and as Ms Mulligan does not identify as a Bunuba person, one of the of criteria of membership to the Bunuba # 2 claim group was not met. The delegate also relied on Schedule O to the claim application which states that there are no common members with any previous overlapping applications, which included the Bunuba # 2 claim.
The criteria for membership of the Bunuba claim group is as follows:
The descendants of the following ancestors: Mubu; Jaranggu; Jurrguna; Frank Edgar (Pilot); Limirruwa; Nindiligal; Dawanjina; Ganggula; Mangalanyi; Yambanana; Minyjinyji; Balylburru; Gijalamili; Jingirriban; Guburrmiya; Bundu; Ginyjiwul; Limadji;
The individuals, and their descendants, who have been or are being adopted or Marurr (people who are raised, grown up, embraced and acknowledged as a Bunuba person) by members of the Bunuba native title claim group, or by their predecessors, in accordance with the traditional laws and customs of the Bunuba people; and
Aboriginal persons who:
self-identify as Bunuba; and,
are recognised by other members of the Bunuba native title claim group as Bunuba under traditional law and custom.
The applicants sought to review the delegate’s decision on three grounds, all of which rely on the ground of legal unreasonableness.
Ground 1
The applicants argued that the Registrar improperly exercised his power under s 190A of the NTA by deciding to accept the Warlangurru #2 application for registration because it was an exercise of power so unreasonable that no reasonable person could have so exercised the power. The applicants argued that there was material available to support a conclusion that Ms Mulligan was a member of the Bunuba #2 claim group, specifically the detailed and express statement in a 2015 presentation by the Kimberley Land Council, the native title representative body for the Bunuba and Warlangurru #2 applications, that she was a member of the Bunuba group. They also considered it relevant that Ms Mulligan had not verified that she was or was not a member of the Bunuba #2 claim group and the Warlangurru #2 claim group’s anthropologist had not reviewed the Bunuba Connection Report Genealogies.
Ground 2
The applicants submitted that there was no evidence or other material to justify the decision of the Registrar to accept the Warlangurru #2 application for registration. The applicant considered that in determining whether the Registrar was satisfied that there was no common claim group member, it appears that the Registrar went about this task by, instead, being satisfied that it had not been established that Grace Mulligan was a Bunuba #2 claim group member. They argued that the Registrar was put on notice by the submissions of the Warlangurru #2 applicants that Grace Mulligan and the applicants’ anthropologist had not reviewed the Bunuba Connection Report Genealogies and in those circumstances ought reasonably to have made inquiries of the representative body and the applicant in order to obtain evidence that Grace Mulligan was not a Bunuba #2 claim group member.
Ground 3
The applicants submitted that the delegate misconstrued the Bunuba #2 claim group description by considering the three criteria to be cumulative and all in need of satisfaction for a person to be a member of the group. On the applicant’s construction, the criteria are independent as it makes no sense that to be a Bunuba #2 claim group member a person has to be a descendant of an apical ancestor and be adopted by members of the application group and be an Aboriginal person that self-identifies and is recognised by members of the claim group as Bunuba.
The Warlangurru #2 claim applicants submitted that it was reasonable for the Registrar to conclude that self-identification as a Bunuba person is a necessary prerequisite for membership of the claim group for the Bunuba #2 application. The use of conjunctive ‘and’ between sub-paras (b) and (c) and between sub-paras (c)(i) and (c)(ii) is indicative of an intention that the criteria of self-identification and recognition are cumulative criteria, with either descent or adoption, necessary to satisfy the requirements of membership of the Bunuba #2 claim group.
In reviewing the decision of the NNTT, Barker J found that Grace Mulligan, listed as a member of the Warlangurru #2 claim group, was also a descendant of one of the apical ancestors identified in the Bunuba #2 application. The Court considered that at the time of the decision was made by the NNTT, the fact that Grace Mulligan did not self-identify as Bunuba was irrelevant to the question of the membership of the Bunuba people. From the material before the delegate Grace Mulligan appeared to be a descendant of the Bunuba named ancestors through her father Mick Michael, and the delegate fully appreciated and accepted that fact.
His Honour considered the issue to be a question of a person who has technically become a member of one prior registered claim group through descent, on her father’s side, who is also a claimant by in what they consider to be Warlangurru country, including in the overlap area, through their mother’s side, in the second in time application group. Barker J stated that: ‘This conundrum is not easily resolved. It is perhaps a classic example of how current statutory law relating to native title application registration does not always easily engage with traditional law and custom’ at [81].
His Honour considered the group’s intended construction of the membership criteria to mean that paragraph (c) of the Bunuba claim group description is an additional category of membership, meant to ensure that not only are the descendants of the ancestors listed in paragraph (a) and other persons adopted into the Bunuba group to be part of the claim group as provided for in paragraph (b), but also that other ‘Aboriginal persons’ who identify as Bunuba and who are recognised by other members of the Bunuba native title claim group as Bunuba under traditional law and custom should be included.
Barker J held that the Registrar’s delegate misconstrued the Bunuba membership criteria and, in doing so, made a decision that was not open to her and was therefore legally unreasonable on the basis that no reasonable decision maker could have made it. His Honour ordered that the decision of the delegate to accept the Warlangurru #2 application for registration be set aside and the entry of the Warlangurru #2 application be removed from the Register of Native Title Claims.