Barker J
Barker J ordered that the applications in relation to the decision not to register the ILUA be dismissed.
On 27 January 2017, the Balangarra #3 ILUA (the ILUA) was lodged with the Native Title Registrar for registration. The ILUA is between the State of Western Australia, the Minister for Lands, the persons who comprise the registered native title claimant in WAD6004/2000, the Kimberley Land Council and the Balanggarra Aboriginal Corporation. On 6 March 2018, a delegate of the Registrar decided not to register the ILUA under the Native Title Act 1993 (Cth) (NTA) following an objection on behalf of the Williams/French family. This case concerns two judicial review applications in respect of this decision; one on behalf of KLC and the claimant, and the other by the State and the Minister. The appeals turned on the delegate having made an error of law or an improper exercise of power (both of which are grounds for review specified in s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
Reasons for the delegate’s decision to refuse
His Honour considered the reasons behind the delegate’s decision not to register the ILUA. The delegate noted that per s 203BE(5) the onus was on the objectors to satisfy the delegate that: (a) all reasonable efforts were not made to ensure all persons who hold or may hold native title in the ILUA area had been identified, and (b) that all persons so identified had not authorised the making of the ILUA (at [22]). This is the test to be applied as directed under s 24CK(2)(c)). The delegate found that the objectors had not satisfied (a). The issue then considered was whether the persons identified in (a) had authorised the making of the ILUA for the purposes of (b). The delegate’s reasoning turned on ‘authority’ under s 251A of the NTA, where she concluded that there was a ‘traditional decision making process for authorising things of this kind’ by which the Balangarra are bound (at [32]). The delegate found that para (b) was not met as the material before her suggested that the persons present at the authorisation meeting did not understand what was required by s 251A. Thus (b) was not met and the delegate decided the ILUA should not be registered.
KLC and Claimant’s grounds of review
The applicants contend that at the authorisation meeting, the claim group properly met and determined that they did not have a traditional decision-making process for authorising the ILUA and thereby proceeded to determine how authorisation should be determined, which was by a majority vote. It was submitted that it was ‘entirely for the claim group members holding all of the native title rights and interests in the Balanggarra country to determine that question for themselves- and not for anybody else to determine that question’; and the delegate, in undermining this, committed an error of law (at [44]).
The State and Minister’s grounds of judicial review
The State and Minister contend that the delegate erred in construing and applying s251A of the NTA, in not concluding that the objectors had not satisfied the requirements of s203BE(5)(b), and in failing to comply with the requirement of s 24CK(1) and consequently not registering the ILUA.
Reasons for judgment
The delegates’ findings on those grounds turned on the construction of the expression ‘things of that kind’ in para (a) and (b), which the State and Minister contended referred to an ILUA generally and not a particular subject matter. The delegate adopted ‘thing’ to mean an ILUA specifically dealing with the surrender of native title, with which Barker J agreed.
The delegate found that the claim group never addressed the question of whether there existed a traditional decision-making process in relation to the authorisation of an ILUA of that kind. ‘Of that kind’ referred to the fact that the ILUA specifically ‘proposed the surrender of native title rights in the agreement area; not merely the carrying out of development in that area’ (at [66]). Barker J held this to be the substance of the delegate’s decision: that His Honour held the Registrar to have erred in deciding that there was in fact a traditional decision-making process as described in s 251A to be followed did not affect the final outcome.
His Honour found that the question of whether there was a traditional decision-making process in relation to a decision ‘of that kind’ was never expressly or impliedly addressed in the authorisation meeting, and that this was an error made by the applicant. The delegate did not improperly exercise her power or make an error of law in deciding not to register the ILUA. The applications were dismissed.