Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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24 August 1995, Adelaide
Aborigines and Torres Strait Islanders - Native Title - powers, duties and the function of the Registrar - Whether an application may be made by a body corporate - the adequacy of the evidence within s. 62(1).
Administrative Law - Whether the acceptance of an application by the Registrar is an administrative decision.
Judiciary Act - Whether the Registrar is an officer of the Commonwealth within s. 39B.
An application for a determination of native title was made by the Miriuwung and Gajerrong people. The claim covered a large area of land in Western Australia encircling the township of Kununurra and including Lakes Argyle and Kununarra, and a small area of land in the Northern Territory, including parts of the Keep River National Park. The Governments of the Northern Territory and Western Australia (the applicants) instituted separate proceedings pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s. 39B of the Judiciary Act 1903 (Cth). Both applicants sought a review of the decision by the Registrar to accept the application by the Miriuwung and Gajerrong people, and a review of the decision by the Registrar to accept an amendment to the application.
The applicants raised two broad questions for the court to determine. First, a number of preliminary matters were raised regarding the duties, functions and powers of the Registrar, and the sufficiency of the application. Second, whether the Registrar should have rejected the application on the grounds that there are a range of interests in the area of land claimed by the Miriuwung and Gajerrong people, including pastoral leases, which it was argued by the applicants extinguished any native title. The parties to the litigation agreed that it would be useful for the court to make a determination on the preliminary issues because the court could ultimately dispose of the application if it upheld the preliminary questions.
On the preliminary issues, O'Loughin, J held:
(1) The action of the Registrar of the National Native Title Tribunal (NNTT) in accepting the application for determination of native title is a 'decision under an enactment' within the meaning of the ADJR Act. The Registrar's action in accepting an amended application is also a 'decision under an enactment' within the meaning of the ADJR Act.
(2) The Registrar of the NNTT is an officer of the Commonwealth within s. 39B of the Judiciary Act. Therefore, the Federal Court in its original jurisdiction, is entitled to review the decision of the Registrar to accept the native title determination application, and in the appropriate case, grant relief under s. 39B of the Judiciary Act.
(3) The Registrar of the NNTT did not make an error in law in accepting the application on the grounds that the application was made by a body corporate.
(4) With regard to the adequacy of the application, subs. 62(1) does not require applicants to state the sources and the grounds for their belief in an affidavit. Nor has the Registrar committed an error in law by accepting an application which does not include the Indigenous name of the area and sites within the area.
(5) An applicant is not required to provide an outline of the evidence that will be produced, but an outline of the type of evidence that will be produced.
(6) The Registrar is not required to inquire about other interests in the area claimed, nor is the Registrar required to inquire about the historical use of the claimed land. The duties of the Registrar are carried out through common sense, personal knowledge and by making expeditious inquiries which may assist her to formulate her opinion.
Since all of the preliminary issues raised by the applicant were rejected by the Court, the second issue, regarding the extinguishment of pastoral leases remained before the Court.
See also (1995) 3(76) Aboriginal Law Bulletin 21.
[2] On 6 April 1994, a native title determination application ('the application') was lodged with the Native Title Registrar ('the Registrar') pursuant to the provisions of the Native Title Act 1993 (Cth). The several parcels of land that are the subject of the application ('the claim area') are in the north west of Australia extending from the Western Australian coast into the Northern Territory. ... [3] ... These proceedings were instituted pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act') and s. 39B of the Judiciary Act 1903 (Cth). Both applicants are seeking (inter alia) a review of two 'decisions' of the Registrar - first, the 'decision' to accept the application and, secondly, the later 'decision' to accept an amendment to the application. ... The Commonwealth Attorney-General intervened in each of the proceedings pursuant to the provisions in that behalf contained in s. 18 of the ADJR Act and was thereafter described, for convenience, as the third respondent. The fourth respondents include the group of Aboriginal people who, [4] ultimately, were advanced as the claimants in the application before the Tribunal whilst the fifth respondents represented another group of Aboriginal people; the participation of this last mentioned group in the litigation arises because they are in dispute with the fourth respondents about the traditional ownership of a piece of the claim area. ...
The various parties to the litigation agreed between themselves that it would be helpful to the ultimate disposition of the litigation if certain so-called 'preliminary matters' could be determined by the court. As a result, and by consent, the court ordered in each action, pursuant to O 29 r2(a) of the Federal Court Rules, that certain questions be determined separately. ...
Prior to outlining the preliminary issues, O'Loughlin J summarised the relevant provisions of the Native Title Act 1993.
[7] ... It is of particular significance, having regard to some of the issues that have arisen in this litigation, to note the requirement under s. 109 which deals with the Tribunal's way of operating. It is to pursue the objective 'of carrying out its functions in a fair, just, economical, informal and prompt way' and in conducting any inquiry it is 'not bound by technicalities, legal forms or rules of evidence'. Similar provisions in s. 82 govern the operation of the Federal Court when it is required to hear and determine an application. Although this litigation is concerned with the duties, functions and powers of the Registrar as distinct from those of the Tribunal or the Court, the beneficial nature of the legislation, the contents of the preamble, and the methods of operation as set out in s. 109 and s. 82 all assist 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.
[8] ... The statutory force permitting the making of the application is found in s. 13, which, so far as it is applicable to these proceedings states:
13. (1) An application may be made to the Registrar under Part 3:
(a) for a determination of native title in relation to an area for which there is no approved determination of native title; or. ...
Subsection 61(2) requires the application to be 'in the prescribed form' and to contain 'such information in relation to the matters sought to be determined as is prescribed'. Where an application is made by a person or persons claiming to hold native title with others, it is necessary to 'describe or otherwise identify those others' but it is not necessary to name them or to say how many there are: subs. 61(3). Such a provision 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 (and ultimate beneficiaries) need not be stated with precision.
Subsection 62(1) is central to the determination of these proceedings. It provides as follows:û
'(1) A native title determination application by a person or persons claiming to hold the native title in relation to an area must:û
(a) be accompanied by an affidavit sworn by [9] the applicant that the applicant:-
(i) believes that native title has not been extinguished in relation to any part of the area; and
(ii) believes that none of the area is covered by an entry in the National Native Title Register; and
(iii) believes that all of the statements made in the application are true; and
(b) contain all information known to the applicant about interests in relation to any of the land or waters concerned that are held by persons other than as native title holders ; and
(c) contain a description of the area over which the native title is claimed; and
(d) state the name and address of the person who is to be taken to be the claimant.'
Sections 63 and 64 appear to offer the Registrar little room to manoeuvre. If the requirements of s. 62 are complied with, 'the Registrar must accept' the application unless she is of the opinion that it is frivolous or vexatious or unless she is of the opinion 'that prima facie the claim cannot be made out' (subs. 63(1)). In any such case, the Registrar must, thereupon, refer the application to a presidential member (subs. 63(2)): she has no power to reject it unless acting under the direction of a presidential member. The Registrar must also refer the application to a presidential member where she 'considers that the requirements of s. 62 are not complied with in relation to the application' (subs. 64(1)). Once again there is no power in the Registrar to reject the application.
[10] Even though the powers of the Registrar are limited in dealing with an application, it does not mean that the Registrar does not have an important function to perform. On the contrary, it is clear that the Registrar must scrutinise an application with care. Only by that means could she properly inform herself so that she could form one or other of the opinions to which ss. 63 and 64 refer. The need to scrutinise may suggest, in turn, a need to investigate. That however, is another issue that has arisen in this litigation: can the Registrar investigate an application and question the information contained in the application? and if the Registrar does lawfully investigate, is it in pursuance of a discretionary power or in performance of a statutory obligation?
If an application for determination of native title by persons claiming to hold
native title is accepted under s. 63 of the Act, the Registrar must 'record
details of the application in the Register of Native Title claims' (par
66(1)(b)); furthermore,
the Registrar must give notice of the application to
all interested parties in the manner that is set out in
subs. 66(2). But,
in addition to complying with par 66(1)(b), the Registrar must, under the
provisions of s. 190 of the Act, as soon as practicable after becoming aware of
them, include in the Register details of various claims, including 'details
of
any claims contained in applications given to the Registrar.' In other words,
the Registrar will record, not only the details
of the application at the time
of the acceptance of the application, but also, the details of the [11] claims
contained in the application
as at the time of its earlier lodgment with the
Registrar. Despite the shift in language from 'details of the application' in
par
66(1)(b) to 'details of any claims contained in applications' in par
190(1)(a), it seems to me that these provisions constitute a
statutory
acknowledgment that an application is susceptible to amendment between lodgment
and acceptance.
The term 'Registered Native Title Claimant' is defined in s. 253 of the Act to mean a person whose name appears in an entry on the Register of Native Title Claims as the person who is taken to be the claimant in relation to land or waters. Thus, the simple act of lodging a claim gives to the claimant recognition as a 'Registered Native Title Claimant'. Such recognition can be important. For example, if a government is intending to perform some future act, it is required under s. 29 to give notice to various parties of its intention and one such party is 'any Registered Native Title Claimant ... in relation to any of the land or waters that will be affected by the Act'. ...
After examining the information contained in the application by the Miriuwung and Gajerrong people, O'Loughlin J went on to consider the preliminary questions.
[22] In their respective applications, the Governments of the Northern Territory and Western Australia sought relief under the ADJR Act and writs of prohibition and injunctive relief under s. 39B of the Judiciary Act 1903 (Cth). ...
I propose ... to set out the questions (in their final amended form) in the proceedings in Action No: WAG112 of 1994 with entries in the left-hand margin showing, where appropriate, the equivalent question in the other proceedings, DG6001 of 1994.
[23] DG6001 WAG112 QUESTION
of 1994 of 1994
1. 1(a) 1(a) Was the decision of the first respondent ('the Registrar')
made on or about 26 May 1994
pursuant to section 63 of the Native Title
Act 1993 (Commonwealth) that an application for
a determination of
native title filed by Miriuwunga Gajerronga Ningguwung Yawurrung Inc.
('claimant') be accepted:
(a) a 'decision under an enactment' within the meaning of the
Administrative
Decisions (Judicial Review) Act 1977
(Commonwealth);
2. 1(b) 1(b) Was the decision of the first respondent ('the Registrar')
made on or about 26 May 1994
pursuant to section 63 of the Native Title
Act 1993 (Commonwealth) that an application for
a determination of
native title filed by Miriuwunga Gajerronga Ningguwung Yawurrung
Inc.
('claimant') be accepted:
(b) a decision amenable to review pursuant to the Judiciary Act 1903?
3. û 2(a) Was the decision of the Registrar made on or about 14
September 1994 to amend the
application referred to in paragraph (1) by
substituting natural persons in place of
Miriuwunga Gajerronga Ningguwung
Yawurrung Inc:
(a) a 'decision under an enactment' within the meaning of the
Administrative Decisions
(Judicial Review) Act 1977;
4. û 2(b) Was the decision of the Registrar made on or about 14
September 1994 to amend the
application referred to in paragraph (1) by
substituting natural persons in place of
Miriuwunga Gajerronga Ningguwung
Yawurrung Inc:
(b) a decision amenable to review pursuant to the Judiciary Act 1903?
[24]
5. 2(b) 3(b) Did the Registrar commit any error of law as alleged,
alternatively, any error of law
sufficient to substantiate the relief
sought, in deciding to accept the application by reason
that (if it bethe
fact):
(b) the application was made by a body corporate, being a corporation
incorporated
under the Aboriginal Councils and Associations Act
1976 (Commonwealth) and not
by a natural person or persons?
6. 2(c)(i) 3(c)(i) Did the Registrar commit any error of law as alleged,
alternatively, any error of law sufficient
to substantiate the relief
sought, in deciding to accept the application by reason that (if it be
the
fact):
(c) the application was not accompanied by an affidavit or affidavits sworn
by the
claimant which:
(i) stated the sources and grounds of the deponents' belief that native title
had
not been extinguished in relation to any part of the claimed areas in
Western
Australia, or that none of the area is covered by an entry in the
National Native
Title Register;
within the meaning of subs. 62(1) of the Native Title Act?
7. û 3(f)(iii) Did the Registrar commit any error of law as alleged,
alternatively, any error of law sufficient
to substantiate the relief
sought, in deciding to accept the application by reason that (if it be
the
fact):
(f) the application did not include:
(iii) the indigenous name of the area and a description of sites within the area;
[25]
8. 2(e) 3(f)(iv) Did the Registrar commit any error of law as alleged,
alternatively, any error of law sufficient to
substantiate the relief
sought, in deciding to accept the application by reason that (if it be the
fact):
(f) the application did not include:
...
(iv) details of searches conducted with public bodies and authorities and official title registers searched and the results of those searches together with:
(a) copies of any documents that record an existing or expired interest granted over any part of the area covered by the application;
(b) copies of documents of title issued as evidence of the existing or expired interests;
9. û 3(f)(vi) Did the Registrar commit any error of law as alleged,
alternatively, any error of law sufficient
to substantiate the relief
sought, in deciding to accept the application by reason that (if it be
the
fact):
(f) the application did not include:
(vi) any or any sufficient outline of the type of evidence, including
historical,
anthropological and genealogical documents, which the
claimant will produce
to support the claim?
[26]
10. û 3(g)(i) Did the Registrar commit any error of law as
alleged, alternatively, any error of law sufficient to
substantiate the
relief sought, in deciding to accept the application by reason that (if it be
the fact):
(g) the claimant failed to conduct any, or any adequate inquiries about, and
failed to set
out in the application any, or any adequate, information
about:
(i) interests currently or formerly held by persons other than as native
title
holders over the claimed area within Western Australia;
11. û 3(g)(ii) Did the Registrar commit any error of law as
alleged, alternatively, any error of law sufficient
to substantiate the
relief sought, in deciding to accept the application by reason that (if it be
the fact):
(g) the claimant failed to conduct any, or any adequate inquiries about, and
failed to set
out in the application any, or any adequate, information
about:
(ii) the historical use made of the claimed area by:
(a) persons other than the claimant;
(b) the claimant?
12. 2(f) 3(h)(i) Did the Registrar commit any error of law as alleged,
alternatively, any error of law sufficient
to substantiate the relief
sought, in deciding to accept the application by reason that (if it be
the
fact):
(h) the Registrar failed to conduct any, or any adequate inquiries about, or
failed to
become informed adequately or at all about:
[27]
(i) interests currently or formerly held by persons other than as native
title
holders over the claimed area within Western Australia;
13. û 3(h)(ii) Did the Registrar commit any error of law as
alleged, alternatively, any error of law sufficient to
substantiate the
relief sought, in deciding to accept the application by reason that (if it be
he fact):
(h) the Registrar failed to conduct any, or any adequate inquiries about, or
failed to
become informed adequately or at all about:
(ii) the historical use made of the claimed areas by:
(a) persons other than the claimant;
(b) the claimant?
14. 2(g) û Did the Registrar commit any error of law as alleged,
alternatively, any error of law sufficient to
substantiate the relief
sought, in deciding to accept the application by reason that (if it be the
fact):
(g) The Registrar took into account incorrect information concerning the
existing
interests in the claimed areas within the Northern Territory?
15. 3 4 If yes to any of 3(f)(iii), 3(f)(iv), 3(f)(vi), 3(g) are all or any of:
(a) regulation 4;
(b) regulation 5;
(c) regulation 6;
(d) Form 1, paragraph A6;
(e) Form 1, paragraph A7;
(f) Form 1, paragraph A8;
(g) Form 1, paragraph A9;
(h) Form 1, paragraph A11
ultra vires the provisions of the Native Title Act 1993?
[28]
16. û 5 Did the Registrar commit any error of law as alleged,
alternatively any error of law
sufficient to substantiate the relief
sought, in deciding to accept the claim without prior
consideration of
existing and expired interests over any part of the area covered by the
claim (Native Title Act 1993, subs. 63(1))?
17. û 6 Did the Registrar commit any error of law as alleged,
alternatively, any error of law sufficient
to substantiate the relief
sought, by reason that the Registrar accepted an amendment to the
purported application referred to in paragraph (1) to substitute natural
persons in place of, or
in addition to, Miriuwunga Gajerronga Ningguwung
Yawurrung Inc.?
18. 4 7 If the Registrar did err for any of the reasons set out in
Question (3), was such error
corrected by the supply of additional
information to the Registrar by the claimant or the
acquisition of
additional information by the Registrar subsequent to the decision of 26
May 1994 and prior to the decision of the Registrar to amend the application in
the manner
described in Question (2) above?
19. 8(b) Did the Registrar commit any error of law as alleged, or
alternatively, any error of law
sufficient to substantiate the relief
sought by reason that following the decision complained
of the Registrar
failed to give notice of the application to all persons whose interests within
Western Australia may be affected by a determination in relation to the
application in accordance
with the requirements of s. 65 of the Native
Title Act in that:
(b) the public was not notified in the determined way (subs. 66(2)(b),
clause 5, Native
Titles (Notices) Determination No.1/93); in particular
[29] notices of the
application published in newspapers in Western
Australia did not contain:
(1) a clear description of the land that is affected;
(2) sufficient details of the application.
...
Was the action of the Registrar in accepting the application for determination of native title a 'decision under an enactment' within the meaning of the ADJR Act? ... [31] ... In my opinion, the act of the Registrar in these proceedings, in accepting the application, must properly be classified as a 'decision under an enactment' within the meaning of the ADJR Act because it was a separate decision for which specific provision is made in the Native Title Act. It was submitted during the course of argument that substantive rights will accrue to an applicant by virtue of the acceptance of the application because of the requirement in par 66(1)(b) that the Registrar record details of the application in the register of Native Title Claims. I do not believe that this requirement deserves the emphasis that it was given during the [32] course of argument because, as I have already pointed out, the details of the claim had already found their way into the register at the time of the lodgment of the application. I do, however, consider that the substantive nature of the act of the Registrar in accepting the application is emphasised by the requirements of par 66(1)(a) which requires the Registrar, consequential upon acceptance, to 'give notice of the application to all persons whose interests may be affected by a determination in relation to the application'. In other words the act of acceptance is an operative decision in a practical sense as it gives rise to practical consequences. The most important of those consequences is the progression of the application into the Tribunal where, perhaps, a determination may be made or, at least, a mediation will commence. Furthermore, a decision by the Registrar that she will accept an application has the necessary quality of finality for that action thereby concludes the Registrar's administrative duties for the time being.
[34] ... The thought processes going through the mind of the Registrar when considering whether or not to exercise her powers under the Act would not constitute a decision: Ricegrowers Co-operative Mills Ltd v Bannerman [1981] FCA 211; (1981) 38 ALR 535 at 544 per Northrop J. As his Honour pointed out, there must be 'some overt act by which the conclusions reached as a result of the thought processes are manifested' in addition to the thought processes. I am satisfied in these proceedings that the relevant manifestation was a combination of the decision to accept the application, the notification of that decision to all interested persons and the entry of the details of the application in the Register.
[35] ... Having concluded that the decision of the Registrar was a decision that is reviewable under the ADJR Act, it seems to me that the further decision to accept a change in the identity of the claimants was likewise a reviewable decision. Counsel for the Commonwealth suggested that the Registrar's action in accepting the amended application was not a 'decision' for the purposes of the ADJR Act; he submitted that it was merely a procedural correction and that it should be characterised as a mere step along the way. But I think not. The identity of the claimants was fundamental; it had important legal consequences. It removed from consideration the question whether an incorporated body, acting for and on behalf of natural persons, was entitled to be a claimant for native title; after all, to assert that claimants for native title can only, by force of history and circumstance, be natural persons might not necessarily exclude a body corporate from making such an application in the name of or for and on behalf of those natural persons.
[36] I would answer both questions in the affirmative. I turn then to a consideration of the Judiciary Act.
Section 39B of the Judiciary Act 1903 (Cth) provides as follows-
(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
(2) The reference in subsection (1) to an officer or officers of the Commonwealth does not include a reference to-
(a) a person holding office under the Industrial Relations Act 1988 of the Coal Industry Act 1946; or
(b) a Judge or Judges of the Family Court of Australia.
The primary issue, therefore, is to determine whether the Registrar of the Native Title Tribunal is 'an officer ... of the Commonwealth.'
[37] ... In my opinion the Registrar fits within this definition and is properly to be regarded as an officer of the Commonwealth. This conclusion means that this court, in its original jurisdiction, is entitled to review the decision of the Registrar to accept the native title determination application and to grant, in an appropriate case, relief under [38] s. 39B of the Judiciary Act; it also means, in my opinion, that the Registrar's decision to accept a change in the identity of the claimants would likewise be capable of review by this court. I would answer both these questions in the affirmative.
The case for the applicants was simply put: s. 61 of the Act provides that an application for native title determination is to be made by 'a person or persons claiming to hold the native title either alone or with others'. The concepts of corporations and statutory bodies are, in relative terms, recent inventions of the Western world and are unknown in Aboriginal law or custom. The provisions of the Acts Interpretation Act 1901 (Cth) cannot be called in aid, according to the applicants' argument, because the relevant provision, par 22(1)(a) states that a reference to a person including a body corporate will not apply where a contrary intention appears; here it is said that such a contrary intention appears. While there is obvious merit in this argument, it does not accommodate the fact that the corporate applicant was not an applicant in its own right. In answer to par 5A in Form 1, the applicant said:
The applicant hereby applies for a determination of native title on behalf of its members, the Miriuwung and Gajerrong people.
It is therefore open to argument, at least, that the application was being made, beneficially, on behalf of natural persons. But I do not consider that it is necessary to pursue [39] this matter further. The issue can be answered two ways. First, the problem raises complex legal issues and it would not be for the Registrar, at the administrative level, to make any decision on the identity of the applicants. Such a question of law would properly be determined by this court. Secondly, if, as a matter of law, the Registrar did err in accepting the application (by virtue of the named applicant being a body corporate), that error was, in my opinion, rectified later when the application was amended to name natural persons as the applicants; in such circumstances I would exercise my discretionary powers and not intervene. But my first answer means that I have concluded that the Registrar did not commit an error of law in accepting the application by reason of the involvement of a body corporate in the making of the application.
Subsection 62(1) of the Native Title Act 1993 (Cth) provides as followsû
62.(1) A native title determination application by a person or persons claiming to hold the native title in relation to an area must:-
(a) be accompanied by an affidavit sworn by the applicant that the applicant:û
(i) believes that native title has not been extinguished in relation to any part of the area; and
(ii) believes that none of the area is covered by an entry in the National Native Title Register; and
(iii) believes that all of the statements made in the application are true; and
(b) [40] ...
(c) ...
(d) ...
The language of the subsection is quite clear. The applicants must state their beliefs with respect to the three subject matters and they have done that. The subsection could have easily required them to state the sources and the grounds for their beliefs but it did not and I see no reason to expand the ambit of the legislation by reading into the subsection words that are not there. ...
But the affidavits that are required to be filed with the Registrar pursuant to the provisions of subs. 62(1) are not affidavits in judicial proceedings nor is the act of the Registrar, in accepting them for filing a judicial act. I do not consider that the evidentiary rule for which Manson v Ponninghaus is authority has an application to the issues in this matter. I conclude therefore that it was in order for the Registrar to receive the challenged affidavits. The answer [41] to this question is: No.
In par A6 of Form 1 there is a mandatory requirement that 'the description must include the indigenous name of the area and sites within the area'. I do not accept the respondents' submission that it is merely directory. It is common ground that the application did not contain this information, which, according to the submissions of the applicants, is needed to assist in establishing that the claimants for native title are traditionally associated with the land and waters that are the subject of the claim. ...
The respondents acknowledged this omission but met it with the argument that, no prejudice to the applicants having [42] been demonstrated, and having regard to the beneficial nature of the legislation, any relief that might otherwise be available to the applicants should, as a matter of discretion, be refused. The primary exercise with which I am concerned at this stage of the litigation is the supply of answers to various preliminary questions. As to that, I must say that I do not think that the Registrar was in error when she accepted the application; she could not have assessed its contents and come to the conclusion that the requirements of s. 62 had not been complied with; the relevant provision in that section, par 62(1)(c), merely required the application to:û
contain a description of the area over which the native title is claimed;
That requirement was fulfilled even though indigenous names (as required by par
A5 of Form 1 of the Regulations) were not included
in the application. And, as
it was not suggested that the Registrar should have formed an opinion (in terms
of s. 63) that the application was frivolous or vexatious or that prima
facie the claim could not be made out, she had no cause to refer the
application to a presidential member and no statutory or other power
to reject
the application. If, however, I should be wrong in the conclusion that I have
reached, I would invoke the provisions of
s. 25C of the Acts
Interpretation Act 1901 (Cth) which provides that unless a contrary
intention appears, and in my opinion none does appear, 'strict compliance with
the form
is not required and substantial compliance is sufficient'. The
recourse that is available to the applicants is to seek from the claimants
further and better particulars of their claim. If that [43] information is not
forthcoming then the subject could be addressed before
the Tribunal or, if
necessary, before the court. But I do not believe that the Registrar committed
an error of law in accepting an
application for determination of native title
that omitted reference to indigenous names.
These three questions can be dealt with together. For the reasons that are set out hereafter, I am of the opinion that there was no error on the part of the Registrar.
Paragraph A8 of Form 1 refers to three different (but associated) subject matters. They are:û
(1) details of all searches conducted with public bodies and authorities;
(2) details of all official title registers searched, including the results of those searches; and
(3) copies of the documents that are referred to in the paragraph.
In completing their application, the claimants answered par A8 by saying that they had conducted searches in relation to the area covered by the application with the Western Australian Titles Office; they did not refer to the Northern [44] Territory nor to searches within the Northern Territory. But they concluded by adding:
Details of these searches are provided in Paragraph A6 above. ...
I have already made mention of the fact that the Registrar has no statutory or
other power to reject an application; she can only
refer it to a presidential
member when, in her opinion, one or other of the matters mentioned in
subs
63(1) and subs 64(1) exists. This emphasises the fact that the Registrar is
only performing a limited administrative role. She
has no power to make a
quasi-judicial assessment on the quality of the application and its likelihood
of success. In considering
these three particular questions, the claimants have
asserted, by the manner in which they answered pars A7 and A8, that they have
supplied the information and the details of the searches and (perhaps) by
attaching the various maps, they have asserted that they
have supplied copies
of relevant documents. It was not for the Registrar to make an assessment about
the quality of the application
in those circumstances. [45] She would not have
been able reasonably to have formed the opinion 'that prima facie the claim
cannot
be
made out'. ...
If, as the applicants allege, the application is deficient because of a failure to include material with respect to enquiries of appropriate public registers or details of interests in land which would be capable of extinguishing native title, that claim should be asserted by the applicants in the substantive proceedings which, as I have said, have already been referred to this court. The [46] applicants complained, and perhaps with a degree of justification, that the plans and registers disclosing details of both existing and expired titles are publicly and readily available; they added that the fact that there may be numerous current or historical titles is not a reason for relieving the claimants of the responsibility of supplying details of the titles. But this 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 because of the presence, in her opinion, of one or more of the grounds stated in subs. 63(1) and subs. 64(1).
Counsel for the Commonwealth went further; he argued that par. A8 of Form 1 did not require claimants to conduct searches; it merely required them to disclose particulars of such searches as had been conducted. He submitted that support for his argument could be found in the legislative history. Clause 56 of the Bill, as originally introduced, required that the application be accompanied by a declaration that the claimants had conducted searches of all official title registers that are relevant in relation to title in the land or waters. Replacement of that requirement with the substantially lesser requirement that the application 'contain all information known to the applicant ...' is, so it was submitted, a clear indication that claimants for native title are not required to make complete and exhaustive searches before lodging their application. Although there is undoubted [47] substance in this argument, in view of the decision I have reached, it is not necessary to express a concluded view. It is sufficient to hold in respect of each of these questions, that the Registrar was not in error in accepting the application.
The applicants quite rightly have pointed out that in any application for native title there will need to be detailed evidence about the law and social organisation of claimant groups so that the land ownership principles of the claimants' society can be ascertained. There may also be a need to lead evidence of the presence, at the time of assertion of sovereignty by the Crown, of genealogical continuity between the present day claimants and those who then occupied the land and the claimants' physical continuity with the land and waters claimed. The applicants suggest that claimants who cannot bring evidence to support these elements will fail. That proposition infers that the claimants would bear the onus of proving that native title has continued to exist - that no intervening act has occurred that would amount to the extinguishment of native title. But the question of onus of proof has yet to be resolved. ...
[49] ... Native Title is not extinguished unless there is a clear and plain intention to do so and such an intention is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title: Mabo [No2] [Mabo v the State of Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1] at 64 per Brennan J. Further on in his judgment his Honour went on to say at 68û
Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continue enjoyment of native title may be consistent with the specified purpose - at least for a time - and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished.
This passage from the judgment of his Honour gives an [50] indication of the nature of the enquiries that must be undertaken before a decision can be made whether there has been an extinguishment of native title. If such an exercise is to be carried out, it will not be conducted by the Registrar at the time of the lodgment of the claim. Any such final determination can only be made after a full evidentiary inquiry before the Federal Court. ...
[51] ... the 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. ...
These two questions, which can conveniently be dealt with together, are in harmony with questions 10 and 11, both of which dealt with the alleged responsibilities of the claimants to make inquiries into these matters. In my opinion, there was no obligation on the part of the Registrar to make any such inquiries. On the other hand, she is not prevented from utilising 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 the application, together with her knowledge and that of her staff [52] and, aided by such inquiries as time and circumstance might permit, to determine within the parameters of her discretion whether to accept the application or refer it on to a presidential member. She is not to sit in final judgment of the application but she is to be encouraged to make expeditious inquiries if it might assist her in the formulation of her opinion. Both questions should be answered in the negative.
This question is based on an allegation that the Australian Surveying and Land Information Group (Auslig) supplied information to the Registrar, including search particulars with respect to land in the Northern Territory, that was incomplete and inaccurate. ... I think that the answer that I have given to questions 12 and 13 is also the answer to this question. There was no obligation on the Registrar to seek out information about the status of land holdings that were included in the claimed area. At the stage of receiving the application for acceptance, there was no obligation on the part of the Registrar to consider difficult legal questions such as the status in law of a body such as the Conservation [53] Land Corporation and whether the potential extinguishment of a piece of the claimed area vitiated an entire application or whether something akin to a 'blue pencil rule' could be used then, or at some later stage, to expunge reference to the offending piece of land. These are questions to be considered by the Court if the matter is not resolved in the Tribunal. ...
As I have not answered any of the relevant questions in the affirmative it is not necessary to consider this question.
My answers to questions 12 and 13 apply to this question. If information came to the attention of the Registrar that constituted a prima facie case that the claim could not be made out, she would have a statutory obligation to refer it to a presidential member. But there was no statutory or other obligation on her part to look for that information independently.
[54] ... I have answered this question in the course of answering question 3. There was no error on the part of the Registrar.
As I have come to the conclusion that the Registrar did not commit any error, it is not necessary to answer this question. If, however, I am wrong and there was some error on the part of the Registrar and that error could subsequently be redressed by the supply of additional information, it would be appropriate for the Registrar to accept that additional information; and, absent any question of prejudice to a party, the court would be entitled to consider using its discretionary powers to refuse relief.
.... If there was a failure on the part of the Registrar [55] to comply with the provisions of s. 66 that failure may well be a subject that will be argued before this court on the referred proceedings; I do not think that it would therefore be desirable for me to say anything further on the subject. ...
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1996/70.html