Aboriginal Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Aboriginal Law Bulletin |
|
Casenote by David Ritter[1]
Kanak v NNTT is the latest in a series of decisions from the Federal Court dealing with procedural minutiae under the Native Title Act 1993 (Cth) ('the NTA'). However, in the context of evaluating specific procedures that have in the past been adopted by the National Native Title Tribunal ('the NNTT'), the unanimous judgment of the Federal Court in this case contains a number of important statements about the general nature of the NNTT's beneficial role under the NTA.
The case concerned an application for a determination of native title made to the NNTT by Mr Dominic Wy Kanak on behalf of the Darug people, as a person claiming to hold native title over land. The application was initially lodged by Mr Kanak on 10 October 1994. On that date, he attended the Sydney Registry of the NNTT and sought to file a 'completed' application form for a determination of native title. The form was not accompanied by any affidavit in support of the application, and Mr Kanak did not tender the prescribed fee of $300.00 (both of which are mandatory under s62 of the NTA). An officer of the NNTTT rejected the application at the counter as containing insufficient detail and as not being accompanied by a supporting affidavit. Later that day, Mr Kanak facsimiled a copy of his application to the Perth Registry office of the NNTT. The facsimile application was accompanied by a letter from the NSW Aboriginal Legal Service that set out Mr Kanak's financial hardships, but that did not raise any grounds recognised under NNTT Regulations for waiver of the prescribed fee.
On 17 October, the Registrar of the NNTT advised Mr Kanak that she was unable to 'accept his application. After further correspondence between Mr Kanak and the NNTT, an affidavit in support of the application was forwarded to the NNTT on 12 November 1994. The Registrar decided to treat Mr Kanak's application as having been lodged on that date. On 17 January 1995, the Registrar referred the application to the President under s63(2) of the NTA, on the grounds that Mr Kanak had not paid the prescribed fee, and that on the basis of the application, prima facie, the claim could not be made out. The President invited Mr Kanak to make submissions to him to demonstrate that a prima facie claim could be made out as required by s63(3)(a) of the NTA. Mr Kanak made written submissions in response to the President's invitation. Nevertheless, the President decided that nothing in the application or subsequent submissions supported a conclusion that a prima facie case could be made out. The President also held that the applicant had not satisfied the requirements in relation to the prescribed filing fee. Accordingly, on 23 March 1995 under s63(3)(c) of the NTA, the President directed the Registrar not to accept the native title application. Mr Kanak appealed against the direction given by the President to the Full Federal Court under s169 of the NTA.
Prior to addressing specific issues, Lockhart, Lee and Sackville JJ set down some general principles as to how the procedural requirements created by the NTA should be interpreted. According to their Honours, while the NTA makes certain mandatory requirements of procedure and form incumbent on applicants, the NNTT must always provide such applicants with a reasonable opportunity to remedy an initial deficiency shown in meeting those requirements. The Court stated (at page 41) that:
'[T]he requirements in s62 must be complied with by an applicant, but a non-complying applicant is to be given an opportunity to rectify the position ... [T]he applicant is to be given an opportunity to remedy the deficiency before the Presidential member can direct that it not be accepted'.
According to their Honours, such an approach is consonant with the overall beneficial nature of the NTA. They said later (on page 41) that
'[T]his construction accords with the objectives of the NT Act, as recorded in the Preamble to the Act. The Preamble recognises the disadvantaged status of Aboriginal people as a group and the need for a special procedure for the just and proper ascertainment of native title. The legislation is clearly remedial in character and thus should be construed beneficially, so as to give the most complete remedy which is consistent with the actual language employed ... It is therefore appropriate to adopt a construction that avoids harsh consequences flowing from a failure to observe procedural requirements specified in the Act'.
Nevertheless, their Honours explained that the generous approach to procedural requirements has limits. The nature of the NTA requires 'that the Presidential member provide [any applicant with] a reasonable opportunity to satisfy him or her that the statutory requirements are complied with and to make a direction accordingly' (at pages 41-2).
On the basis of the beneficial nature of the NTA, the Court held (at page 44) that the fact an application does not comply with the elements of s62 does not prevent the application from being 'given to the Registrar' for the purposes of s6l(2), or constituting a 'native title determination application' for the purpose of s67(2)(a). The Court also held that neither the Registrar nor the NNTT has the power to summarily reject an application because it does not comply with s62, or appears on its surface to be frivolous or vexatious. Their Honours said:
'[W]here a document in the form prescribed is completed and given to the Registrar, apparently in good faith, the consequences of non-compliance with the requirements in s62 are to be determined in accordance with the procedures laid down in the NT Act itself ... [I]t was not open to the staff of the Tribunal to reject the application over the counter on the ground that it did not comply with s62. Nor was it open to the staff of the Tribunal to reject the application over the counter on the ground that it was frivolous or vexatious'.
Thus the Court concluded unequivocally that the NNTT possesses no power to reject applications 'at the counter'. However, it should be noted that, prior to this judgment being issued, as a matter of procedure the NNTT had already abandoned the practice of rejecting deficient applications at the counter.
Having set out its general approach, the Court then dealt with the specific issues raised by the application. The NNTT sought to persuade the Court to uphold the decision of the President on three grounds:
1. Mr Kanak had not paid the prescribed filing fee of $300.00 and had not shown he was entitled to a qualifying benefit which would exempt him from liability to pay the fee.
If this had been the only ground on which the President relied in directing the Registrar not to accept the application, then the Court held that it would have overturned the President's direction. The Court said (at page 47) that
'[T]he statutory obligation created by s64(2)(a) will be met only where an applicant is advised, with reasonably clarity, what he or she must do in order to satisfy the Presidential member that the requirements of s62 are complied with ... [T]he NT Act is remedial legislation and should have a beneficial construction ... Having regard to the objectives of the legislation, a "reasonable opportunity" implies that the applicant is entitled to know what steps he or she must take before the Presidential member would be prepared to direct the Registrar to accept the application'.
The Court held that the Presidential member had erred in not advising Mr Kanak that, even if he could not satisfy the NNTT as to why the prescribed fee should be waived, he could comply with the requirements of s62(2) by simply paying the prescribed fee during such reasonable period as the President was prepared to admit. The Court held that the President's failure to provide Kanak with such an opportunity would, if it were the only matter in question, have justified setting aside the President's direction to the Registrar not to accept the application (page 48).
2. Mr Kanak had not filed a supporting affidavit at the same time as he filed the application and this made the application irredeemably defective.
This was not an argument that had been relied on by the President in directing the Registrar not to accept the application, but nevertheless was raised. It was not an argument found to be persuasive. Their Honours held that had Mr Kanak totally failed to file an affidavit in compliance with s62(1), then that may have constituted a ground on which the President could have directed the Registrar not to accept the application. Again, such a direction would only have been permissible if the President had first given the applicant a ' "reasonable opportunity" ... to rectify any deficiency relating to the absence of an affidavit, by filingan affidavit in the appropriate form' (page 44).
3. The President had correctly concluded within s63(3)(a) of the NTA that Mr Kanak had not shown that a prima facie claim could be made out.
Ultimately, the result turned on the second ground upon which the President directed the Registrar not to accept the application: that is, that he had not been satisfied that a prima facie claim could be made out by the applicant. Their Honours set out the relevant principles from Mabo (No. 2) (Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1) and summarised thus:
'[N]ative title can be enjoyed only by members of an identifiable community who are entitled to enjoy the land under the traditionally-based laws and customs, as currently acknowledged and observed, of that community. Individuals may have native title rights that are protected, but these rights are dependent upon the existence of communal native title and are "carved out" of that title. The only persons entitled to claim native title are those who can show biological descent from the indigenous people entitled to enjoy the land under the laws and customs of their own clan or group. (An adoptive relationship perhaps may be enough; but that is not a question which must be decided in this case.)'.
It was on that basis that the application ultimately failed. As their Honours pointed out (at page 57), Mr Kanak claimed no adoptive or biological relationship with the Darug people who, according to his submissions, were entitled to enjoy the claimed areas under Indigenous law and custom. Indeed, Mr Kanak had disclosed no claim that he was a holder of a native title 'interest' under s253 of the NTA at all. Further, the President had clearly provided him with an opportunity to make submissions to rectify this deficiency in his application, but Mr Kanak had not availed himself of that opportunity. Accordingly and on that basis, the Court upheld the President's decision to direct the Registrar not to accept Mr Kanak's application.
[1] The views reflected in this casenote are solely those of the author, and do not necessarily reflect the views of the National Native Title Tribunal or any other member of its staff.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1996/10.html