Griffiths J
Introduction
In this case, Bell and others sought judicial review of the Native Title Registrar’s decision to accept and register an amended application for native title under s 190A of the Native Title Act 1993 (Cth) (NTA) (the Dannggan Balun Claim). Bell and the other applicants were part of a claim filed on behalf of the Tweed River Bundjalung People, which overlapped with part of the Dannggan Balun Claim, to which they were respondents.
Contentions
The applicants challenged the lawfulness of the Registrar’s decision on the following grounds:
The delegate failed to afford them procedural fairness;
The delegate’s decision was an improper exercise of power, because;
The delegate identified the wrong issue when addressing the procedural requirements of s 190B(5)(a) of the NTA;
The delegate took into account information which did not form part of the application; and
The delegate’s decision involved an error of law.
His Honour dealt with each of these contentions independently.
(1) Denial of procedural fairness
The applicants claimed that the delegate owed them procedural fairness because the registration of the native title application in the Dannggan Balun Claim adversely affected their rights or interests. His Honour rejected this because at the time of the delegate’s decision the applicant’s rights and interests were confined to those of a party who had unsuccessfully opposed leave to amend the application and relatively limited rights associated with an unregistered application for native title. Neither of these gave rise to an obligation of procedural fairness from the delegate. His Honour also noted that even if the delegate did owe procedural fairness there would have been no denial as they did not suffer any practical injustice.
(2)(a) Improper exercise of justice (identifying the wrong issue)
The applicants claimed that the delegate breached s 5(1)(e) of the of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) by identifying the wrong issue when addressing the procedural requirements of s 190B(5)(a), which lead to an improper exercise of the delegate’s power. The applicants were found to be mistaken with respect to the provision they relied on, as s 190B only provides conditions about the merits of the claim rather than procedural requirements. These are found in s 190C. His Honour also found that the delegate had a duty to accept a claim for registration if the requirements of s 190A(6A) of the NTA were satisfied.
The applicants also claimed that there was insufficient evidence and no clear link between four of the relied-upon apical ancestors and the Dannggan Balun Claim area. They claimed that being born in the claim area did not provide a sufficient factual basis for the assertion that native title rights and interests belonged to those apical ancestors. These claims were flawed because they assumed too high a standard of consideration and satisfaction. Section 62(2)(e) of the NTA only requires a general description of the factual basis on which assertions are made. It is important to note that the provisions dealing with registration are not concerned with proof that native title exists. Additionally, because this claim only focused on four of the apical ancestors, the Court suggested the application may have been founded on an erroneous legal basis.
The applicants also claimed that if the delegate had sought further evidence and considered material the applicants had filed in the Dannggan Balun Claim, she would not have come to the conclusion she did. The Court found that the delegate had no obligation to seek further evidence.
(2)(b) Improper exercise of justice (failure to take into account relevant consideration)
The applicants further argued that the delegate’s failure to consider the material they had filed in the Dannggan Balun Claim amounted to a failure to take into account a relevant consideration. In the context of judicial review under the ADJR Act, relevant consideration means “mandatory relevant consideration”. His Honour concluded that no such thing existed when there was no legal obligation on the delegate to extend an invitation for the applicants to present further evidence. Also, with regard to s 190A(3), even if that material had been provided, it would not amount to a mandatory relevant consideration.
(3) Error of law
The Court considered this claim an alternate way to characterise the claim that there was an improper exercise of power. For the same reasons as above, this was rejected.
Conclusion
For the above reasons, the application for judicial review was dismissed.