Editors --- "Wakaman People No 2 v Native Title Registrar and Authorised Delegate [2006] FCA 1198 - Case Summary" [2006] AUIndigLawRpr 72; (2006) 10(4) Australian Indigenous Law Reporter 68

• Wakaman People 2 v Native Title Registrar and Authorised Delegate
• Facts:
• Held, setting aside the decision of the delegate of the Native Title Registrar:

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Wakaman People 2 v Native Title Registrar and Authorised Delegate

Federal Court of Australia (Kiefel J)

[2006] FCA 1198

5 September 2006

Native Title — functions of the Native Title Registrar and authorised delegate requirements —certification of application by a representative body

Facts:

In August 2004, a group of applicants identifying themselves as representatives of the Wakaman People lodged a claim to the Native Title Registrar for determination of native title pursuant to s 61 of the Native Title Act 1993 (Cth) (‘NTA’). In the claim, Wakaman People were identified as ‘Wakaman People- being descendants of Byrne Rosie Biddle (aka Phillips, Thomas), Atherton (Cameron), Willy (aka Willie) Maher, Cameron Snr Joe Dosetta Jnr, McTavish Snr, known apical ancestors of the Wakaman People’.

In April 2005 an authorised delegate of the Native Title Registrar made a decision not to accept the application. The basis for this refusal was that the application did not comply with certain administrative requirements; including a finding that the members of the group were not identified with sufficient clarity, as required by s 190(C) of the NTA.

In December 2005 leave was sought and granted in the Federal Court to amend the application pursuant to s 64 of the NTA. This amended application was lodged with the Registrar in December 2005. The amended application contained certification from the Queensland Native Title Board confirming that the group had been delimited in accordance with evidence of customary law, by consultation and by the information of an anthropologist. The application was then subject to a preliminary assessment by the delegate which instructed the claim group to refer to his comments in the document pertaining to the first refusal to accept the application.

In January 2006 a further amended claim was submitted to the Registrar. In February 2006 the delegate’s decision regarding this claim detailed that the application had not been accepted, for the reasons that: (i) the definition of what constituted a Wakaman person had remained unclear through the course of the applications; and (ii) as a result of those changing definition, the applications had been variously constituted by what must be accepted as entirely different and indeterminate claimant groups.

The applicant group sought review of the delegate’s decision in the Federal Court.

Held, setting aside the decision of the delegate of the Native Title Registrar:

1. Even when an application for review is based on a purported error of fact, a court can make determinations on administrative questions arising from the jurisdiction under which a matter comes before the court. This jurisdiction is only broadly limited by s 190 of the NTA, which confers the extent of the jurisdiction: [29] Western Australia v Strickland [2000] FCA 652; [2000] 99 FCR 33 [referred to].

2. Sections 190A–190C of the NTA require the registrar to take a strictly administrative approach to a native title claim. The Registrar errs if they concern themselves with the merits or correctness of a claim, and must confine itself to judgments only on the adequacy of the description of the claimant group: [31], Northern Territory of Australia v Doepel and Others [2003] FCA 1384; [2003] 133 FCR 112 [referred to].

3. As such, with respect to the adequacy with which the claimant group was identified, the delegate erred in formulating a judgment that the application did not meet the requirements of s 190C(4) of the NTA for specificity and correctness: [30].

4. Where a representative body has authorised the existence of a group by certificate, there is no obligation upon the registrar to review the correctness of that body’s decision: [32], Northern Territory of Australia v Doepel and Others [2003] FCA 1384; [2003] 133 FCR 112 [referred to].