In this case, the plaintiffs sought judicial review of a decision of the Attorney-General of Victoria made under s 4 of the Traditional Owner Settlement Act 2010 (Vic) to enter into the Taungurung Recognition and Settlement Agreement (RSA). The main issue in this case was whether the proceedings should be stayed.
The plaintiffs were Ngurai Illum Wurrung and Waywurru elders who dispute the Taungurung as the traditional owners of the relevant land. The agreement challenged in this case recognised the Taungurung people as the traditional owners of the land and waters covered by the RSA.
Procedural History
The proceedings had previously been stayed pending the determination of a Federal Court proceeding where the same applicants sought judicial review of the decision of the Registrar of the National Native Title Tribunal to accept the Taungurung Indigenous Land Use Agreement. The reason for this was that the registration of the Taungurung ILUA was a part of the ‘jurisdictional fact’ ground of review in this case. Reasons for the decision in the Federal Court case were handed down in February 2021 (Gardiner v Taungurung Land and Waters Council (No 2) [2021] FCA 253). The Federal Court quashed the Registrar’s decision and remitted it for reconsideration.
Submissions
The Attorney-General submitted to the Court in these proceedings that the case should be stayed until a new decision was made by the Registrar. The plaintiffs opposed this.
Decision
The Court found that as the Federal Court proceedings had concluded, there was no longer any overlap between proceedings concerning the same subject matter and no danger of inconsistent findings regarding the ability of the Taungurung Land and Waters Council (TLWC) to authorise (under s 251A of the NTA) an ILUA to be registered under s 24CK of the NTA. The Court also noted that it would be ‘unjust’ to further delay proceedings given the age of the plaintiffs and their health status. Although it would be burdensome for the TLWC to prepare the matter for trial while also progressing the application for registration of the ILUA, Her Honour held that this did not render the proceeding an abuse of process. On this basis, the Court ordered that the proceedings be listed for trial later in the year, and referred it for judicial mediation.