White J dismissed the Rak Mak Mak Marranunggu clan’s application for judicial review of the National Native Title Tribunal’s decision to register an Indigenous Land Use Agreement (ILUA). In April 2015, the Northern Territory Government lodged with the Native Title Registrar (the Registrar) an application pursuant to s 24CG(1) of the Native Title Act 1993 (Cth) (NTA) for the registration of an ILUA over all the land and waters (about 10km2) within the Town of Batchelor in the Northern Territory (the Batchelor ILUA). On the last day of the notification period (9 Sept 2015), the Registrar received 19 formal objections under s 24CI to the registration of the ILUA: one by Mr Virgil Warnir; and 18 by members of the Rak Mak Mak Marranunggu clan (the Mak Mak Objectors). On 5 May 2016, a delegate of the Registrar (the Delegate) announced her decision under s 24CK NTA to accept the Batchelor ILUA for registration.
This judgment concerned an application made pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) by eight of the Mak Mak Objectors (the applicants) seeking the quashing of the Delegate’s decision. Mr Warnir did not make a corresponding application. The respondents to the application were the Northern Land Council (the NLC), the Northern Territory of Australia, the four persons who comprised the Applicant in the application for determination of native title brought by the Warai and Kungarakany Groups in NTD 6057/2001 (known as Batchelor No 1) and the Registrar. With the exception of the Registrar, who filed a submitting appearance, all opposed the grant of relief sought by the applicants.
The applicants submitted that the Delegate had taken into account an irrelevant consideration by having regard to the grant by Mansfield J of leave to discontinue the Batchelor No 3 claim and the conditions attached to that grant. White J determined that all reasonable efforts to identify the person who hold or may hold native title in relation to the Town of Batchelor had been made and that these grounds of the application failed.
The second ground brought by the applicants was that there was no other evidence or other material to justify the Delegate’s decision (ADJR Act s 5(1) (h)) and his Honour also concluded that these grounds of the application failed as no particulars or evidence were filed in support of this ground or allegation.
The final ground upon which the applicants relied was the assertion that the exercise of power by the Delegate was so unreasonable that no reasonable person could have exercised it in the same way. The applicable principles are set out in Borkovic v Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186. The only submission that was directed to this ground did not (in his Honour’s opinion) rise above a bare assertion. For that reason his Honour found that the submission could not be sustained; given the large amount of material before the Delegate and the detailed written reasons that she provided. It was on that basis this third element of the submission for appeal failed and the application was dismissed.