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Willheim, Ernst --- "The Role of the Native Title Tribunal Registrar -- Western Australia v Patricia Lane & Ors; Northern Territory v Patricia Lane" [1995] AboriginalLawB 55; (1995) 3(77) Aboriginal Law Bulletin 21


The Role of the Native Title Tribunal Registrar –
Western Australia v Patricia Lane & Ors;
Northern Territory v Patricia Lane & Ors

Western Australia v Patricia Lane & Ors; Northern Territory v Patricia Lane & Ors

Federal Court of Australia, O’Laughlin J

Unreported, 24 August 1995

by Ernst Willheim *

This decision resolves important issues concerning the requirements for a valid application for determination of native title pursuant to the Native Title Act-1993 (Cth) ('the NTA'), and the role of the Native Title Registrar in deciding whether to accept an application or refer it to a presidential member of the National Native Title Tribunal.

The case arose out of the Miriuwunga Gajerronga application ('the application') covering a large area in Western Australia in the vicinity of Kununurra and Lake Argyle, and a small area in the Northern Territory in the vicinity of the Keep River National Park. The WA and NT brought separate proceedings, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act') and s39B of the Judiciary Act 1903 (Cth), challenging the decision of the Registrar to accept the application, and challenging also the later decision of the Registrar to accept an amendment to the application. The Attorney-General of the Commonwealth intervened to oppose the WA and NT proceedings.

The challenges raised two sets of issues. The first, referred to as prelimir.ary questions, concerned the adequacy of the application and the role of the Registrar. The second concerned whether the Registrar should have refused to accept the application because the land in question had been subject to a range of interests (some of which were pastoral leases with reservations in favour of Aboriginal interests) which, it was claimed, extinguished any native title. Since any of the preliminary questions would, if upheld, have disposed of the application, the parties agreed that it would be convenient for those matters to be determined first.

All the preliminary challenges failed. The pastoral lease issue remains before the Court.

During the course of the ADJR Act proceedings, the application for native title determination was referred to the Native Title Tribunal for mediation. Mediation not having succeeded, the application has now been referred to the Federal Court. In these 'referred' proceedings, the WA and NT have proposed that the question whether the pastoral leases extinguished native title be set down for trial as a preliminary issue.

Before dealing with O'Loughlin J's decision on the preliminary questions, it is convenient to note a number of observations by him concerning the role of the Registrar.

O'Loughlin J noted, first, the requirement in s109 of the NTA that the Tribunal must pursue the objective of 'carrying out its functions in a fair, just, economical, informal and prompt way', and in conducting an inquiry 'is not bound by technicalities, legal forms or rule of evidence' (page 7). Similar provisions in s82 govern the operation of the Federal Court when required to hear and determine an application. Although the litigation was concerned with the duties, functions and powers of the Registrar, he said the beneficial nature of the legislation, the contents of the preamble, and the methods of operation set our in ss109 and 82, all assisted in pointing to a proposition that the Registrar should be permitted to perform the statutory obligations that are imposed on the holder of that office with a degree of flexibility that is in harmony with these mandates (page 7).

O'Loughlin J referred next to the provision in s61(3) of the NTA that an application made by a person or persons claiming to hold native title with others must dercribe or identify those others, but in doing so does not have to name them or to say how many there are. This provision, he said, recognises that the people who might be entitled to benefit from a determination of native title could be numerous and scattered; it also recognises that the identity of the claimants need not be stated with precision (page 8).

The Right to Negotiate

O'Loughlin J considered that the simple act of lodging a claim gives to the claimant recognition as a 'registered native title claimant' (page 11; see the NTA s253). It is the status of a 'registered native title claimant' which attracts the right to be notified and the right to negotiate in relation to permissible future acts (NTA ss29(2), 30). Some had previously thought that these rights were attracted only after a claim was accepted. O'Loughlin J's view has attracted criticism and concern from some quarters. It appears that, under the proposed amendments to the NTA recently announced by the Federal Government, claimants will only attract this status when the application has passed a registration test and has been registered.

Application of the ADJR Act and the Judiciary Act

The Aboriginal respondents attacked the WA and NT submissions on the grounds that the Registrar's decision to accept the application was not a decision under an enactment, and was not amenable to review pursuant to the Judiciary Act. Both attacks were lost.

O'Loughlin J held that the act of the Registrar in accepting an application must properly be classified as a 'decision under an enactment', because it was a separate decision for which specific provision was made in the NTA (page 31). Because of his view that details of a claim find their way into the Register of Native Title Claims at the time of lodgement, he did not give weight to argument that the requirements in s66(1)(b), which require the Registrar to record details of an application in the Register, cause substantive rights to accrue (page 32). He considered, however, that the substantive nature of the act of the Registrar in accepting an application is emphasised by the requirement of s66(1)(a) that the Registrar, upon acceptance of an application, gives notice of it to all persons whose interests may be affected by a determination in relation to that application. The act of acceptance is an operative decision in a practical sense, as it gives rise to practical consequences. The most important of these is the progression of an application into the Tribunal. Furthermore, the decision by the Registrar to accept an application has the necessary quality of finality for that action, thereby concluding the Registrar's administrative duties for the time being (page 32).

Decisions by the Registrar to accept an application pursuant to s62 are therefore subject to challenge on the ground of error of law under the ADJR Act. Having regard, however, to O'Loughlin J's findings as to the role of the Registrar in accepting an application, the practical scope for challenge is likely to be small.

Under the proposed amendments to the NTA, 'acceptance' will be replaced by 'registration'. It appears that a decision of the Registrar in relation to the proposed registration test will be similarly subject to review under the ADJR Act.

WA and NT had also challenged the decision of the Registrar to accept an amendment to the application. The amendment substituted as applicants natural persons for a body corporate. The Aboriginal respondents submitted that the decision to accept an amendment is not a decision for the purposes of the ADJR Act. The Commonwealth submitted that an amendment is merely a procedural correction and should be characterised as a mere step along the way. These arguments were rejected. O'Loughlin J held that the identity of the claimants is fundamental; it had important legal consequences. Accordingly, this decision is also reviewable.

The next question concerned whether the decision was. amenable to review pursuant to s39B of the Judiciary Act. The primary issue was whether the Registrar is 'an officer of the Commonwealth' for the purposes of that section. O'Loughlin J had little difficulty in finding that the Registrar is an officer of the Commonwealth.

Whether an Application May Be Made By a Body Corporate

The WA and NT challenged acceptance of the application on the ground that it was made by a body corporate, whereas s61 of the NTA requires that an application be made by 'a person or persons claiming to hold the native title either alone or with others', in other words, by natural persons. It was argued that it was fundamental to the decision in Mabo [No. 2] (Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1) that where native title exists it is held by natural persons. An application cannot be made by a body corporate since a corporation cannot hold native title at common law. These arguments were rejected on a number of grounds. O'Loughlin J observed that it was open to argument that the application (which was expressed to be made by the corporation 'on behalf of its members, the Miriuwung and Gajerrong people'), was made beneficially, on behalf of natural persons. He found that the problem raises complex legal issues and it is not for the Registrar, at the administrative level, to make any decision on the identity of the applicant. Such questions.of law would properly be determined by the Court (page 39). Also, if, as a matter of law, the Registrar did err in accepting an application by a body corporate, that error was rectified when the application was amended to name natural persons as the applicants (page 39).

Adequacy of the Application

The WA and NT challenged the adequacy of the application for native title determination on numerous grounds.

The first was that the application was not accompanied by affidavits which stated the sources and grounds of the deponents' belief that native title had not been extinguished, as required by section 62(1) of the NTA. WA, which had the main carriage of this point, submitted that deponents to affidavits are required to state the grounds of their information and beliefs. O'Loughlin J held that the basis of this rule is evidentiary. But the affidavits were not affidavits in judicial proceedings. Therefore, the evidentiary rule had no application. Accordingly, it was in order for the Registrar to receive the challenged affidavits (page 40).

Next, it was argued the application did not include the indigenous name of the area. The challengers submitted this information was necessary to assist with establishing that the claimants were traditionally associated with the land and water the subject of the claim. O'Loughlin J did not accept the Registrar was in error when she accepted the application - she could not have come to the conclusion that the requirements of s62 had not been complied with (s62 merely requires a description of the area). That requirement was fulfiled even though the requirements in the regulations were not included (page 42). This aspect of His Honour's reasoning is, with respect, a little difficult to follow. O'Loughlin J went on to say that if he were wrong in the conclusion he had reached, he would invoke the provisions of s25C of the Acts Interpretation Act 1901 (Cth) that strict compliance with the form is not required and substantial compliance is sufficient.

The WA and NT both claimed the applications were deficient because they did not include details of searches conducted with public authorities and official title registers. WA went further and alleged the applications should have been rejected because the claimants did not conduct inquiries about interests currently or formerly held by persons other than as native title holders, and historical use made of the claimed area by persons other than the claimants. Because native title once extinguished does not revive, historical searches as well as current land tenure searches were required. The applicants argued that the relevant registers disclosing details of existing and expired titles were publicly and readily available.

The arguments. were rejected, substantially on the basis of O'Loughlin J's view that 'the Registrar is only performing a limited administrative role' (page 44). It is not for the Registrar to make an assessment about the quality of the application. The application itself asserted that the details and the documents had been supplied. It may be that the application was doomed to failure because it lacked some important particularity. But that was not to be determined by the Registrar at the time of the acceptance of the application. The claim that the application was deficient because of a failure to include material from appropriate public registers, or details of interests in land capable of extinguishing native title, should be asserted in the substantive proceedings. The contrary assertion would necessitate the Registrar making a subjective, quasi-judicial assessment about the quality of every application. Such conduct would exceed her statutory mandate, which is limited to a referral to a Presidential member through the presence, in her opinion, of one or more of the grounds in s63(1) and s64(1) (page 46).

Outline of the Type of Evidence

WA argued that the application should not have been accepted because it did not contain any or sufficient outline of the type of evidence that the claimant would produce to support the claim. This argument was rejected. O'Loughlin J held, referring to French J in Waanyi (No.1) (Re Waanyi People's Native Title Application (1994) 129 ALR 100), that.para A11 of Form 1 does not require a description of the contents of such evidence, but rather a listing of its categories; that an applicant is not required to supply an outline of the evidence that will be produced, but an outline of the type of evidence that will be produced (page 51).

This conclusion was, however, preceded by consideration of the question whether an applicant bears the onus of establishing that native title has not been extinguished. O'Loughlin J referred to Antodu Tijani v Secretary, Southern Nigeria [192112 AC 399, Mason CJ in Coe v The Commonwealth [1993] HCA 42; (1993) 118 ALR 193, Toohey J in Mabo [No. 2] at 183, the majority judgement in Western Australia v The Commonwealth [1995] HCA 47; (1995) 128 ALR 1 at 12, and French J in Waanyi (No. 1). Although not deciding the point, he appeared to favour the view that the onus is on those seeking to establish extinguishment. The passages to which he referred indicated, he said, the nature of the inquiries to be undertaken before a decision can be made whether there has been an extinguishment of native title. If such an inquiry was to be carried out, it was not to be conducted by the Registrar at the time of the lodgement of the claim (page 50).

Duties of the Registrar

The next challenges raised squarely whether the Registrar exercises a primarily passive or an active role. It was argued that the Registrar's duty goes further than merely considering material provided by an applicant. The Registrar must consider whether that material appears to be sufficient, or whether further enquiries should be made either of the applicant or of public registers. The Registrar must make current and historical land tenure searches as a necessary condition of forming the opinions required under s63.

The Commonwealth submitted that s63 as a matter of construction (the Registrar must accept the application if the requirements of s62 are complied with, unless of the opinion that the application is frivolous or vexatious, or that prima facie the claim cannot be made out) does not require that the Registrar be positively satisfied that a prima facie case has been made out. The language of s63 is therefore inconsistent with any general obligation to conduct independent inquiries. That does not mean that in no circumstances can the Registrar exercise independent judgement. Where, for example, a claim is made in relation to land notoriously the subject of freehold title (eg the central business district of a town), the Registrar can form the opinion that one or both of paragraphs (a) and (b) of s63(1) apply, and refer the application to a presidential member of the NNTT (pursuant to s63(2)). Absent opinion that ss63(1)(a) or (b) or both apply, the Registrar is not required to conduct independent inquiries. Further, any such requirement would be contrary to the scheme of the NTA. It was submitted that it is clear, from s70, that it is the Tribunal, not the Registrar, which must be satisfied that the applicant has made a prima facie case. The Registrar's function is to establish formal regularity.

O'Loughlin J held that there was no obligation on the part of the Registrar to make any such inquiries (page 51). On the other hand, she is not prevented from using her knowledge if it is relevant to the issue. The responsibilities of the Registrar are as a matter of common sense to utilise such information as is contained in an application, together with her knowledge and that of her staff, and aided by such inquiries as time and circumstance might permit, to determine within the parameters of her discretion whether to accept an application or refer it on to a presidential member. She is not to sit in final judgement of an application, but she is to be encouraged to make expeditious inquiries (page 52).

Taking Into Account Incorrect Information

The NT claimed the Registrar took into account incorrect information concerning the existing interest in the claimed areas within the Territory. It was alleged the Australian Surveying and Land Information Group supplied search particulars that were incomplete and inaccurate. O'Loughlin J held there is no obligation on the Registrar to seek out information about the status of land holdings included in a claimed area. There is no obligation on the part of the Registrar to consider difficult legal questions such as whether the potential extinguishment of native title in a portion of a claimed area vitiates an entire application. These are questions to be considered by the Court if the matter is not resolved in the Tribunal. O'Loughlin J adopted the views of French J in Waanyi (No. 1) that the NTA applies a low-level negative screening test, and does not contemplate resolution by the Registrar of contested questions of fact or arguable questions of law (page 53).

Summary

Each of the procedural challenges brought by the WA and NT was unsuccessful. In light of this decision, together with the earlier decision of French J in Waanyi (No. 1), it is clear that as the NTA currently stands, technical challenges to the adequacy of applications, or the acceptance of applications by the Registrar, have limited prospects of success. The Registrar exercises a limited, administrative function. In particular, it is not her function to resolve complex legal issues. It seems likely that a high proportion of native title applications will now be accepted. Absent resolution at the mediation stage, substantive objections will need to await referral to the Federal Court for resolution.

* This case note is written in a personal capacity and does not purport to reflect the views of the Commonwealth Attorney-General's Department or of the Commonwealth.


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