Mortimer J
This decision concerned an application for judicial review of a decision to register an Indigenous Land Use Agreement (ILUA) between the Victorian State Government and Taungurung Traditional Owner Group. These agreements were made under the Traditional Owner Settlement Act 2010 (Vic) (‘Traditional Owner Settlement Act’) after a long period of negotiation. The Traditional Owner Settlement Act provides an alternative pathway for First Nations People to secure cultural recognition in circumstances where native title cannot be proven due to dispossession and dislocation. The issue was whether, in registering the ILUA, the delegate properly understood and applied the legislation, whether they adopted a legally fair process, and whether they lawfully considered all the information before making the decision.
Background
The Taungurung ILUA covers an area of more than 20,000 square kilometres and consists of land and waters south of the Murray River from Rochester to Wangaratta to the Great Dividing Range. It includes an agreement that the Taungurung people will not exercise their native title rights over the area in exchange for certain economic and non-economic benefits. The ILUA is binding on all traditional owners regardless of whether they agreed to it.
Objections to the ILUA
As part of the registration process, the National Native Title Tribunal gave public notice of the ILUA application. There were a considerable number of objections by a wide range of First Nations people. The applicants in this proceeding were some of the people who provided objections, and all claimed to hold native title in parts of the ILUA area. The applicants argued that the delegate made important legal mistakes by:
Not ensuring they had access to a document under the Traditional Owner Settlement Act called the “Part A Threshold Statement”;
Not properly considering the information the applicants gave the delegate about their claims to hold native title;
Not properly considering the ways they tried to speak up in the process of making the ILUA and were told that they were too late to participate or object;
Not engaging critically with the claims First Nations Legal made about how it had fulfilled the all reasonable efforts requirement.
Decision
The Court did not agree with all of the applicant’s arguments, but found that the delegate made two errors of law, by:
Asking herself the wrong question and focussing too much on the concepts relevant to the Traditional Owner Settlement Act, and not enough on the concept of native title under the Native Title Act 1993 (Cth) (NTA); and
Failing to consider affidavit material put before the Registrar which the Court has found she was required by the NTA to consider.
Due to the above reasons the Court found in favour of the applicants, and in regular circumstances the Court would set aside the decision of the delegate. However, because the ILUA had already been registered the Court could not make that order. Instead, the Court made orders directing the parties to provide submissions about what relief the Court can and should grant to the applicants.