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Federal Court of Australia (Keifel J)
5 July 1999; [1999] FCA 913
Aboriginal – Native Title Claim – Native Title Act 1993 (Cth) – s 190A-D – Meaning of ‘review’ – whether judicial review or re-hearing of registrar’s refusal to register claim intended by Parliament – process of registration – functions of Registrar and Federal Court – distinction between 'appeal' and 'review'.
Mr Randolph Powder, representing the Powder family (Jetimarala People) lodged a native title claim in accordance with the Native Title Act 1993 (Cth) (the Act). The claim related to certain lands north-west of Rockhampton, Queensland.
Section 190A of the Native Title Act requires the Registrar to consider claims for native title made to the Federal Court. Registration of the claim by the Registrar in the Native Title Register gives the applicant a right to negotiate the land claim. Before registering the claim, the Registrar must be satisfied that the application contains all the information required under ss 61 and 62 of the Act. Section 190B of the Act requires the Registrar to be satisfied that the factual basis underpinning the native title claim is sufficient to support the claim. The Registrar must also be satisfied that at least one member of group has, or previously had, a physical connection with the land or waters being claimed. It is sufficient to show that a member of the group would have had a physical connection but for an act of the Crown, a statutory authority, or a leaseholder. The Registrar should also not be aware of any prior native title determination in respect of the claim. The applicant’s material should not disclose that an act of extinguishment has occurred.
In the present case, the Registrar refused to register the native title claim. The Registrar was not satisfied that the applicant was authorised by the claim group to make the claim (information required under s 62(1)(a) of the Act). In addition, certain searches required by s 62(2)(c) had not been provided.
Section 190D of the Act allows the applicant to apply to the Federal Court for a review of the Registrar’s decision not to accept a claim.
The issue before the court was whether s 190D of the Act granted the right to apply for review of the legality of the Registrar’s decision or for an appeal on the merits.
1. The Registrar’s function under the Act is administrative in character.
2. The Act provides that the Court can order the Registrar to register a claim that had been refused for failure to establish a physical connection. It cannot do so where registration has been refused on any other ground.
3. The Act provides elsewhere for an appeal suggesting that Parliament intended the word review to have a limited meaning.
4. The legislature tends not to duplicate processes and to move away from de novo hearings (which an appeal would require).
Parliament intended to allow the applicant to apply to the Federal Court for judicial review of, not an appeal against, the Registrar’s decision.
Mr Randolph Powder, for the Powder Family (Jetimarala People), is an applicant for a determination of native title with respect to certain lands north-west of Rockhampton, Queensland. In that process the Registrar of the National Native Title Tribunal has considered the claim, as required by s 190A of the Native Title Act 1993 Cth (‘the Act’), and rejected it as one to be entered in the Register of Native Title Claims which is established pursuant to s 185. Registration confers certain rights, the principal of which is the right to negotiate. Non-acceptance of a claim for registration gives the native title applicant the right to apply to the Federal Court for ‘a review of the Registrar's decision not to accept the claim’ (s 190D(2)). Mr Powder has made such an application.
The question which arises in the proceedings for review, and which is to be determined as a preliminary question (O 29 r 2 Federal Court Rules), is what was intended as the process for ‘review’ in s 190D. The section itself provides little guidance. The applicant contends for a re-hearing by the Court. The Attorney- General of the Commonwealth, intervening pursuant to s 84A of the Act, submits that a narrower process, one akin to that undertaken under the Administrative Decisions (Judicial Review) Act 1977 (‘ADJR Act’), and limited to error of law was intended.
The State of Queensland, which appeared on the application, submits that it is not required by any provision of the Act to remain a party and it does not contend, in this case, that its rights would be affected by any order which might be made. Whether the State of Queensland remains a party is now largely academic. It has provided written submissions and Marlborough Nickel Pty Ltd has adopted them. Since however there is the possibility of further proceedings I will deal with this question later in these reasons, after considering the statutory provisions.
Part 2, Division 3 of the Act (‘Future acts etc and native title’) deals, in general terms, with the future creation of some rights and interests which may affect the area the subject of the native title claim. Subdivision P, s 25, provides that before any future act is done certain parties must negotiate with a view to reaching agreement about the future act. One of the parties to such negotiations is a registered native title claimant: see ss 30 and 30A. If the procedures prescribed by the subdivision are not complied with, the act will be invalid to the extent that it affects native title. Such acts may include the grant of mining leases, and that is the basis for Marlborough Nickel's interest in these proceedings. It may be observed that the right to negotiate is a valuable one and is one which may affect other third parties seeking the grant of other rights and interests over land or waters. It is a right which is consequent upon the claim being entered in the Native Title Register. It also follows automatically upon a determination of native title by the Court in favour of an applicant (see s 30A), but is clearly of benefit to a claimant if it is available at an earlier point.
Section 190A(1) of the Act, as amended, provides that a Registrar must consider claims for native title made to the Federal Court. I shall refer, at a later point in these reasons, to the functions of the Court and the Registrar and Tribunal. The Registrar is obliged to accept a claim for registration if it satisfies all of the conditions in ss 190B and 190C which, respectively, deal with the merits of the claim and procedural and other matters. So far as concerns the latter, the Registrar is to be satisfied that the application contains the necessary information, that is set out in ss 61 and 62.
In the present case, the Registrar was not satisfied that the information as to the applicant's authorisation by the persons in the native title claim group (s 62(1)(a)) had been provided, and registration was rejected on that ground and because details of certain searches had not been provided (s 62(2)(c)). The Registrar is also to be satisfied that no member of the claim group had been included in a previous application, which was registered at the time the claim under consideration was made, and which covered the whole or part of the same area now claimed; and that the authority of an applicant is established or certification by a representative body is provided.
Section 190B requires more, and involves a consideration as to whether the factual basis put forward can support the native title rights and interests claimed. In addition to the claim group being sufficiently identified, as must the rights and interests claimed, it is expressly provided (by subs (5)) that the factual basis must support the following three assertions:
Factual basis for claimed native title
(5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:
1. that the native title claim group have, and the predecessors of those persons had, an association with the area; and
2. that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and
3. that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
Subsection 6 requires the Registrar to consider that prima facie at least some of those native title claims can be established.
Subsection 7 goes on to provide for the requirement of physical connexion with land or waters in question. (I shall refer to both as ‘land’ in these reasons). This assumes particular importance with respect to the application for review which may later be made to the Federal Court. The test for physical connexion considered by the Registrar is whether at least one member of the group currently has, or previously had, a traditional physical connexion with the land or waters, or previously had or would reasonably have been expected currently to have that connexion, but for things done by the Crown, a statutory authority of the Crown or a leaseholder. Unlike the threshold test for the claim for native title, here the Registrar ‘must be satisfied’ that this requirement is met.
Subsection 8 of s 190B then provides that the application and accompanying documents must not disclose, and the Registrar must not be otherwise aware, that there had been a prior native title determination or exclusive or non– exclusive possession acts since such an application is forbidden by s 61A. Subsection 9 provides that the applicant's material must not disclose that acts of extinguishment have occurred.
Prior to the 1998 amendments to the Act, all claims for native title were registered and the claimants able to participate in the negotiation process. It may then be observed that registration was intended to provide a test for qualification to that right and the Second Reading Speeches concerning the amendments proposed in 1997 and then again in 1998 (on 4 September 1997 and 9 March 1998 respectively) bear this out. It is there said that only those claimants having ‘credible native title’ were intended to participate.
Whilst the amendments effected a restriction, and one subject to the Registrar's decision, provision was also made for a review of any refusal to register by the Federal Court. Section 190D provides:
190D If the claim cannot be registered
(1)If the Registrar does not accept the claim for registration, the Registrar must, as soon as practicable, give the applicant and the Federal Court written notice of his or her decision not to accept the claim, including a statement of the reasons for the decision.
Content of notice where failure to satisfy physical connection test
(1A) If the only reason why the Registrar cannot accept the claim for registration is that the condition in subsection 190B(7) (which is about a physical connection with the claim area) is not satisfied, the notice must advise the applicant of the applicant's right to make an application to the Federal Court under subsection (2) and of the power of the Court to make an order in accordance with subsection (4) in respect of the application.
Applicant may apply to Federal Court for review
(2) If the Registrar gives the applicant a notice under subsection (1), the applicant may apply to the Federal Court for a review of the Registrar's decision not to accept the claim.
Federal Court has jurisdiction
(3) The Court has jurisdiction to hear and determine an application made to it under subsection (2).
Court order where physical connection test failed
(4) If, on an application under subsection (2) in a case to which subsection (1A) applies, the Court is satisfied that:
(a) prima facie, at least some of the native title rights and interests claimed in the application can be established; and
(b) at some time in his or her lifetime, at least one parent of one member of the native title claim group had a traditional physical connection with any part of the land or waters and would reasonably have been expected to have maintained that connection but for things done (other than the creation of an interest in relation to land or waters) by:
(i) the Crown in any capacity; or
(ii) a statutory authority of the Crown in any capacity; or
(iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease; the Court may order the Registrar to accept the claim for registration.
Opportunity to be heard
(5) Before making an order under subsection (4), the Court must give to any person who is a party to the proceedings in the Court under Part 4 in relation to the application an opportunity to be heard in relation to the making of the order.’
[Emphasis is added].
Pursuant to s 81, the Court has exclusive jurisdiction to hear and determine applications filed in the Court ‘that relate to native title’. Part 3, Division 1, s 61 provides that applications may be made to the Federal Court for native title determination or compensation. Division 1A ‘Other applications to the Federal Court’ states that three applications may be made, including that ‘for review of a decision of the Registrar not to accept a claim for registration’ under s 190D(2). Separate provision is made for the making of applications to the Tribunal with respect to rights of negotiation and indigenous land use agreements. The procedures undertaken by the Tribunal, and the Court's consideration of its decisions, differ from those with respect to registration.
The procedure provided by the Act, on the filing of a native title determination application, is for the Registrar of the Court to give the Native Title Registrar a copy of the documents (s 63) and thereafter that Registrar provides copies to the State or Territory Minister and representative bodies and gives the notices required by s 66(3). The Registrar is a qualified legal practitioner having particular experience (s 95). The Registrar's powers include assisting the President of the Tribunal including the administration of it and undertaking the searches requested by the Federal Court. The Registrar considers the application for the purpose of registration. Other provisions disclose something of a working relationship between the Court and the Tribunal. For example, the Court may refer applications for mediation (s 86B) and request searches to be undertaken (s 83A).
The Registrar is required to check material against the requirements of the legislation; to identify, where possible, that prohibited claims or those doomed to failure are identified; and that the requisite authority is shown. The assessment of the native title rights or interests claimed involves questions of fact, but it is only required to a prima facie standard. That with respect to physical connexion to the land is limited to existing members of the group and this is essentially a question of fact. In both instances, questions of law and of statutory interpretation may arise. Reasons are required to be given of the decision, where registration is refused, but there is nothing to suggest that anything like a hearing is to be undertaken or that either the applicant or any other person has a right to be heard. The applicant provides material with the statutory criteria in mind. A decision is reached upon a consideration of that material, some information provided by the State or Territory, searches obtained by the Registrar and other information which the Registrar considers appropriate (s 190A(3)).
‘Review’ is a word which has no settled meaning and is of considerable width, its meaning in a particular case being said to depend upon context: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261; Kainhofer v The Director of Public Prosecutions (No 2) (Full Court of the Federal Court, 17 September 1996, unreported). It may signify judicial control of administrative action or the grant of jurisdiction to exercise judicial power. It may involve a hearing restricted to the material before the decision– maker or one de novo: Republic of South Africa v Dutton & Anor (1997) 147 ALR 310, 316.
In most cases where the term has been considered there are indicators of what was intended to be undertaken by way of hearing; for example in South Africa v Dutton, which concerned ‘review’ of a Magistrates' order in extradition proceedings, the statute recognised that the Court was itself authorised to determine eligibility for surrender. Hill J concluded that a limited review was not intended and that the Court could consider the facts for itself, although there the statute expressly limited the rehearing to one on the materials which had been before the Magistrate.
The Act in question in these proceedings does not provide such a clear indication with respect to review generally of the Registrar's refusal to register, although it does specify the Courts' powers where review is sought of the Registrar's decision to refuse registration on the basis that the physical connexion test under s 190B(7) is not satisfied. It will be recalled that the Registrar is to consider the connexion, if any, between members of the native title claim group and the land. On ‘review’ the Court is given further power, by s 190D(4), to consider the connexion of the parents of the group members. That would likely require additional evidence and a right to be heard is given to other parties to the native title determination proceedings. A hearing is clearly contemplated, with the Court in some cases possibly deciding disputed, or at least tested, facts. In addition, it revisits the other question of fact which the Registrar has determined, whether there is a prima facie case for native title (see s 190D(4)(a)). In the event that the Court is satisfied of those two matters, it is given the express power to order the Registrar to accept the claim for registration.
The section makes no similar provision for review of refusals to register on other grounds. It may be that it was not intended that the same process attend ‘review’ generally of refusals to register. Special provision might have been thought necessary for the exercise of the power to consider the extended physical connexion test, since it requires the reception of evidence. It was obviously thought necessary to balance that right with that providing for the other parties to be heard. It is not possible to infer that the same was thought necessary for review generally.
It was submitted for the Attorney-General that regard ought to be had to the Supplementary Explanatory Memorandum to the Native Title Amendment Bill 1997 [No 2]. It appears to have been presented to Parliament by the Prime Minister on 2 July 1998 (see Votes and Proceedings No 175, p 3203). It says, with respect to the proposed insertion of subsections (4) and (5):
...If the Court is satisfied about the matters in paras 190D(4)(a) and (4)(b) the Court may order the Registrar to register the claim and the Registrar will then enter a description of the rights and interests in the claim which prima facie can be established in the Register of Native Title Claims. This is a different outcome to other applications to the Court for a review of the Registrar's decision. Where applicants seek a review of the Registrar's decision on grounds other than those set out in subs 190D(1A), the Federal Court can order the Registrar to review a decision not to register a claim, however, the Registrar is left with a discretion not to register a claim, however, the Registrar is left with a discretion not to register as a result of the review.
The last sentence suggests, clearly enough, that a limited judicial review process and not a rehearing was intended, although it would not be accurate to say that, in a circumstance where the Court ordered the Registrar to reconsider a matter that the Registrar then had a discretion not to register. Non-registration following reconsideration could only result from the Registrar not being satisfied that the statutory criteria were fulfilled.
Section 15AB Acts Interpretation Act 1901 provides that material not forming part of the Act being interpreted, including any explanatory memorandum relating to the bill, may be considered ‘in the ascertainment of the meaning of the provision’ in doubt. A second reading speech, to which reference has earlier been made, may also be considered. Its relevance lay in the intention expressed about registration as a threshold test, although it was not necessary to use it as an aid to the construction of the provisions.
The passage from the Supplementary Explanation Memorandum is relied upon by the Attorney-General not for an expression of some outcome which was sought to be achieved but, in reality, to provide the missing information about the process, which is to say to give meaning to the word ‘review’. It cannot be determinative of that question. In Re Bolton & Anor; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 517-18 it was said:
Furthermore, given that s 19 is ambiguous, consideration may be given in ascertaining the meaning of the provision to the second reading speech of the Minister when introducing the Bill for the Act into the House of Representatives in 1963: Acts Interpretation Act 1901 (Cth), as amended, s 15AB. That speech quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.
(See also Director of Public Prosecutions v Logan Park Investments Pty Ltd & Anor (1995) 37 NSWLR 118, 126). Here it may be observed that the construction referred to in the Memorandum would substantially limit a party's rights upon review.
The Attorney-General and Marlborough Nickel submitted that the meaning of review ought to be regarded as limited to error on the grounds now set out in the ADJR Act, because it related to a decision by the Registrar of an administrative kind. It follows, in their submission, that the Court would be concerned only as to the legality of the Registrar's decision. It would not conduct a rehearing and it would not substitute its own decision: see Johnson v Federal Commissioner of Taxation (1987) 72 ALR 625, 628.
The use of the word ‘review’ usually signifies that the decision under review is administrative in character, although there are exceptions: Brandy, 261. It has been said that the answer to what will be undertaken by a Court (there in connexion with an ‘appeal’) will depend upon an examination of the legislative provisions rather than classifying the function of the administrative authority, which classifications tend to be too general: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Anor [1976] HCA 62; (1976) 135 CLR 616, 621-2. This approach would not however seem to me to deny the relevance of what the Statute conveys about the administrative tasks undertaken and what may then be inferred about what was to be undertaken on their completion.
In North Ganalanja Aboriginal Corporation & Anor (For and on behalf of the Waanyi People) v State of Queensland & Ors [1996] HCA 2; (1996) 135 ALR 225, 241 the High Court held that the Registrar and President of the Tribunal were not exercising judicial power when considering whether an application for native title determination was frivolous or vexatious or that prima facie it could not be made out, those being the basis given by the then s 63 for non acceptance of an application. What the section did not authorise was the judicial function, which was there undertaken, of undertaking a hearing and determining the question on findings made on contested facts and argument. The intended administrative process required consideration of the application and material accompanying it, and if it was fairly arguable, it was to be accepted by the Tribunal.
The Registrar's function under consideration here is, in my view, in a similar category. The Registrar assesses the material provided by the applicant, but no other party, for compliance with the statutory requirements. Whilst the questions relating to the native title rights and interests claimed and the physical connexion of the group members to the land require determinations of fact the former is not required to a very high standard and although the lastmentioned requires the Registrar to be ‘satisfied’, that position may be reached by considering the facts put forward by the group. The only other information which the Act permits the Registrar to consider, under s 190A(3), is that resulting from the Registrar's own searches of registers and information provided by the Commonwealth, a State or Territory which the Registrar considers is relevant to the factual enquiries under ss 190B or 190C. The firstmentioned information, relevant to acts of extinguishment is likely to be of public record or official documents. Information provided concerning the native title rights and interests claimed or physical connexion to land might not in any event be provided by the Commonwealth, a State or Territory by the time the Registrar comes to consider registration. If it did this would seem to be the only significant area for a determination on disputed facts. Information received by the Registrar on these topics, and any concerning acts of extinguishment, may not be known to the applicant and it may be prudent for the Registrar to allow the applicant an opportunity to consider it and comment upon it. The process is not however the kind undertaken by a Court (see Brandy 256-258) and, whilst the decision postpones the right to negotiate, it is not determinative of it. The Registrar's tasks in this connexion may be contrasted with that which may be undertaken by the Court where an order under s 190D(4) is sought.
In Re Greenhill; Ex parte Pook (1988) 83 ALR 295, 296-7 Gummow J considered that the word ‘review’ rather than ‘appeal’ might have been carefully chosen by the legislature:
with an eye to the complex history that has attended the question of the exercise of the judicial power of the Commonwealth other than by judges; cf Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; (1982) 150 CLR 49, 63– 4 ...
The Act here does not provide that the primary decision-making power is that of the Court and the Registrar is not part of the Court's organisation. Cases involving delegated functions, and which hold that a rehearing is in such circumstances, necessary to be undertaken by the Court on a ‘review’ are then not relevant (see eg Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84; Cockatoo Dockyard Pty Limited v Atamian, (NSW Court of Appeal, 11 August 1995 unreported).
The Native Title Act does make provision for an appeal process, in s 169. Part 6, Division 5, s 139 provides that the Tribunal must hold inquiries into a right to negotiate application, a special matter (see s 137) and where an objection to registration of a land use agreement is maintained. Provision is then made for the parties to those inquiries; for references of questions of law to the Federal Court and for the taking of evidence, amongst other things. A written record is required to be kept and findings of fact must be made in the determination of the Tribunal. Section 169 then provides for an ‘appeal’, limited to a question of law, from that decision to the Federal Court, which may be constituted as a Full Court. The Court hearing the appeal may affirm or set aside the decision or determination or remit it for hearing again or it may make such order as it considers appropriate. The provisions are usual to an appeal proper and the Court's function on it reflects the nature of the proceedings undertaken by the Tribunal. It may be inferred that those drafting the Act intended a ‘review’ to reflect a different procedure from an appeal; and that they were cognisant of the nature of the functions undertaken here by the Tribunal and, on the other hand, then undertaken by the Registrar with respect to the registration test.
By contrast with the Tribunal's function referred to above, the nature of the first decision-making process may have been so limited that it could not be supposed that an appeal court is to be confined. In that event, it may be concluded that a rehearing was intended to be undertaken. Much will depend upon the character of the function undertaken and, of course, the legislative context. In Sperway Constructions 621-2, the nature of the proceedings before the Commissioner did not lend themselves to an appeal in the County Court, confined to the materials before the Commissioner, when regard was had to the extent of them and the lack of a record and reasons.
In the present case, reasons are required to be provided by the Registrar and all of the material considered by him should be on the file. Where it concerns a matter within his own knowledge, such as that relating to other prior applications, that should appear in his reasons. In that connexion, there is much to the point made by the Attorney-General that, if a review by way of rehearing were to be undertaken, the Court would be in some difficulty in fulfilling the functions to be undertaken by the Registrar. Although not determinative of the question, it may be seen that judicial review in the manner provided for by the ADJR Act may be appropriately applied to the materials and the determination.
A statute which does provide for both a review by way of rehearing and an appeal in the strict sense, is the Administrative Appeals Tribunal Act 1975. The Tribunal's power to review is such that it is put in the same position as the original decision-maker, with all necessary powers and discretions and it is able to substitute its own decision for that under review (s 43). An appeal to the Court is limited to a question of law. The ability of a Court to substitute its own decision provides a strong indication that it was intended to consider all of the facts for itself. Such was the case in South Africa v Dutton; and see Phillips v The Commonwealth of Australia [1964] HCA 22; (1964) 110 CLR 347. Whether it is then limited to the evidence which was before the decision-maker or it may receive other evidence, is a matter not relevant to these proceedings.
Subsection 190D(4) does permit the Court to reach its own conclusion. It is of interest that its role is limited to the two areas of fact and law: those with respect to the native title interest and the extended physical connexion test. The limited range of the ‘review' does not require it to consider all of the matters with which the Registrar had been concerned. There is, however, no power given to the Court to come to its own view of the facts put forward by the applicant on reviews on other grounds. It does not seem possible to me to imply such a power.
The nature of the Registrar's decision, and the materials provided for, upon which it is based, is such as to be suitable for review in the administrative law sense. The function to be undertaken by the Registrar is not one which could readily be undertaken by the Court, which lacks necessary knowledge of other native title applications and would involve it in searches for information before fact-finding. There is no authorisation of a rehearing by the Court to be gleaned from the Act and the provisions surrounding those in question. What is provided for is a review of the legality of the Registrar's decision on the established grounds, and one which may be undertaken expeditiously, given the requirement that the Registrar furnish reasons as soon as possible.
The appellant submitted that, because a valuable right was involved, it may more readily be inferred that a Court would consider the matter for itself. As I have said, the right to negotiate is not determined at this point, it may be postponed. To the contrary of this submission, I consider that one might assume more readily these days that the legislature is concerned not to duplicate processes and that there is a move away from de novo hearings.
Lastly, I observe that the conclusion I have reached as to the nature of the review is supported by the reference in the Supplementary Explanatory Memorandum.
I shall hear Counsel as to the terms of an appropriate order as to costs.
Contrary to Marlborough Nickel's submission, it does not seem to me that the State of Queensland is automatically a party to these proceedings. This is not an application to which subsection 190(4) relates, and which would require the State to be given an opportunity to be heard, as a party to the native title determination proceedings. The registration process, and I would think any applications with respect to discussions made in connexion with it, are not part of the main proceedings. In those circumstances the parties to the review proceedings will not necessarily be the same as those identified by the Statute as interested in the main proceedings. With respect to joinder of a party to applications such as this, neither provisions of s 84(5) of the Act nor O 78 r 8 Federal Court Rules would seem to apply. Orders under O 6 r 8 would however remain open. On normal principles Marlborough Nickel would have an interest in whether the right to negotiate provisions were available to the claimant. The State of Queensland would not however seem to be a necessary party. There will be an order removing it from the proceedings.
1. Apart from proceedings to which s 190D(4) applies, a review under s 190D of the Native Title Act 1993 is in the nature of a judicial review in the administrative law sense.
2. The State of Queensland be removed as a party to these proceedings.
Counsel for the applicant: Mr P Poynton
Solicitor for the applicant: Terry Fisher & Co
Solicitor for the first respondent: Australian Government Solicitor
Solicitor for the second respondent: Crown Law
Counsel for the third respondent: Mr G Hiley QC
Solicitor for the third respondent: Barwick Wisewounds
Counsel for the Attorney-General of the Commonwealth, Intervening: Mr R Orr
Solicitor for the Attorney-General of the Commonwealth, Intervening: Australian Government Solicitor
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