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Editors --- "Kemp v Native Title Registrar [2006] FCA 939 - Case Summary" [2006] AUIndigLawRpr 74; (2006) 10(4) Australian Indigenous Law Reporter 72

Kemp v Native Title Registrar

Federal Court of Australia (Branson J)

25 July 2006

[2006] FCA 939

Native Title — competing land claims — judicial review — Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 — Native Title Act 1993 (Cth), ss 24, 251A.

Facts:

In 1998, one Dr Davis-Hurst applied for judicial determination that she and the people she represented, the Kattang people of the Manning Valley, held native title rights over lands known as Saltwater.

In 2003, Mr Kemp, a descendent of the Pirripaayi people, was joined as a party to that litigation (Davis-Hurst v Minister for Land and Water Conservation (NSW) [2003] FCA 541; (2003) 198 ALR 315) as he expressed a concern that the Kattang people were not the proper holders of native title rights over the Saltwater, and he expressed concerns over the identity of the ‘traditional law and customs under which that native title is held’.

In August 2005 the Minister for Lands applied to the Native Title Tribunal under s 24CG of the Native Title Act 1993 (Cth) (‘NTA’) for the registration of an indigenous land use agreement in respect of the Saltwater. Mr Kemp was not a party to that agreement. Registration of the agreement was to ‘[give] substance to’ a decision by the state of NSW that the people represented by Dr Davis-Hurst, and not the Pirripaayi people, should be recognised as holders of native title interests in the Saltwater.

In December 2005, a delegate of the Native Title Registrar registered the agreement under s 24CL(1) of the NTA, notwithstanding the recognition that prima facie Mr Kemp may be a person that held rights and interests pursuant to native title. Mr Kemp applied to the Federal Court for judicial review of that decision under the ‘error of law’ provision of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (s 5(1)(f)).

He asserted, first, that the Registrar misconstrued s 251A of the NTA, and, second, that the Registrar should not have found the requirement of s 24CG(3)(b) of the NTA had been met as she had recognised Mr Kemp as a person who may hold native title interests in relation to land or waters, and he had not authorised the agreement.

Held, setting aside the Registrar’s decision:

1. The authorisation process set out in s 251A of the NTA is to be understood as a process by which a single community or group may obtain a decision. It will not obtain a decision ‘which is binding on two or more groups where their respective claims to hold native title in an area are in conflict’: [41].

2. That being the case, the Registrar was incorrect in proceeding on the basis that Mr Kemp was bound by the s 251A process undertaken by the native title group, and the requirements of s 24CG(3)(b) of the NTA were therefore not met: [42], [43].

3. The phrase that that the agreement must be authorised by ‘all persons who hold or may hold native title in relation to land or water in the area covered by the agreement’ in s 24CG(3)(b)(i) of the NTA does not admit any of the ambiguities contemplated in the majority judgement in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384, and so is to be given its literal meaning: [48], [55], [57], [58], [61]; cf [56]. The words chosen by the legislature do not ‘readily admit of limitation’: [55].

4. However, because it was open for Mr Kemp to make a separate native claim over Saltwater, it was unnecessary for him to authorise the making of the agreement in issue: [62].