FEDERAL COURT OF AUSTRALIA

Budby on behalf of the Barada Barna People v Native Title Registrar [2014] FCA

801

Citation: Budby on behalf of the Barada Barna People v Native Title Registrar [2014] FCA 801

Parties: LES BUDBY AND CECIL BROWN JNR ON BEHALF OF THE BARADA BARNA PEOPLE v NATIVE TITLE REGISTRAR, AMY LESTER, BETTY DOYLE, NORMAN ROSS, ANTHONY HENRY, SAM DALLACHY, DEREK WILLIE, DAVINA TILBAROO, RANDOLPH POWDER, MONA KIELLY, NANCY WILLIE and TRUDY CRANSTON

File number: QUD 756 of 2013

Judge: LOGAN J

Date of judgment: 31 July 2014

Catchwords: JUDICIAL REVIEW APPLICATION – native title claim registered by Native Title Registrar – decision of Registrar challenged on basis that claimed area was outside of authorised claim

Held: Registrar, on material before her, was not reasonably able to be satisfied as to authorisation of claim – decision to register set aside – the Registrar is to amend the register accordingly

Legislation: Administrative Appeals Tribunal Act 1975 (Cth)Administrative Decisions (Judicial Review) Act 1977 (Cth)Native Title Act 1993 (Cth) ss 13, 24EB, 24OA, 51, 61, 63, 189A, 190A, 190B, 190C, 233, 251B, 253

Cases cited: Buck v Bavone (1976) 135 CLR 110 citedBudby on behalf of the Barada Barna People v State of Queensland [2013] FCA 1469 citedBudby on behalf of the Barada Barna People v State of Queensland (No 2) [2013] FCA 314 citedBudby on behalf of the Barada Barna People v State of Queensland [2013] FCAFC 149 citedCollector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 consideredEdwards v Santos (2011) 242 CLR 421 considered

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Gudjala People #2 v Native Title Registrar (2008) 171 FCR 317 citedMinister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 citedNorthern Territory v Doepel (2003) 133 FCR 112 citedProject Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 consideredR v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 citedStrickland v Native Title Registrar (1999) 168 ALR 242 consideredWestern Australia v Strickland (2000) 99 FCR 33 considered

Date of hearing: 6 March 201424 March 201416 May 2014

Date of submissions filed on behalf of the applicants:

20 May 2014

Date of submissions filed on behalf of the second – twelfth respondents:

30 May 2014

Date of submissions filed in reply on behalf of the applicants:

2 June 2014

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 58

Counsel for the Applicant: Mr K Barlow QC with Mr G Del Villar – 6 March 2014Mr K Barlow QC – 24 March 2014 and 16 May 2014

Solicitor for the Applicant: Mr Peter Gore as town agent for Dillon Bowers Lawyers

Solicitor for the First Respondent:

Holding Redlich

Counsel for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Respondents:

Mr R Reed

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Solicitor for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Respondents:

Queensland South Native Title Services

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION QUD 756 of 2013 BETWEEN: LES BUDBY AND CECIL BROWN JNR ON BEHALF OF

THE BARADA BARNA PEOPLEApplicant

AND: NATIVE TITLE REGISTRARFirst Respondent

AMY LESTERSecond Respondent

BETTY DOYLEThird Respondent

NORMAN ROSSFourth Respondent

ANTHONY HENRYFifth Respondent

SAM DALLACHYSixth Respondent

DEREK WILLIESeventh Respondent

DAVINA TILBAROOEighth Respondent

RANDOLPH POWDERNinth Respondent

MONA KIELLYTenth Respondent

NANCY WILLIEEleventh Respondent

TRUDY CRANSTONTwelfth Respondent

JUDGE: LOGAN J

DATE OF ORDER: 31 JULY 2014

WHERE MADE: BRISBANE

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THE COURT ORDERS THAT:

1. The first respondent’s decision of 27 September 2013 to register in the Register of

Native Title Claims (the Register), the claim as made by the second to twelfth

respondents as applicants in proceeding QUD 383 of 2013 is set aside.

2. The first respondent is to amend the Register accordingly.

3. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION QUD 756 OF 2013

BETWEEN:

LES BUDBY AND CECIL BROWN JNR ON BEHALF OF THE BARADA BARNA PEOPLE

AND:

NATIVE TITLE REGISTRAR

JUDGE: LOGAN J

DATE: 31 JULY 2014

PLACE: BRISBANE

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REASONS FOR JUDGMENT

1 The Barada People and the Barada Kabalbara Yetimarala People (BKY) are rival claimants

for native title in respect of a large area of land (about 7,435 sq km) to the southwest of

Mackay in Queensland. Included in that area are the coalfields around the towns of

Moranbah, Goonyella, Saraji and Norwich Park. Their respective claims substantially

overlap. This rivalry and the related overlapping claims are two essential features of the

wider background to this case. Such rivalry and related overlapping claims hardly make the

present case unique in Australia: see, for example, Western Australia v Strickland (2000) 99

FCR 33 (Strickland).

2 The challenges for our society presented by such overlapping claims and related clan rivalries

are not merely forensic but can sometimes also impact on community peace and harmony:

see Australian Human Rights Commission, National Native Title Report 2011 (Mr Mick

Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner), Chapter 2:

Lateral violence in native title: our relationships over lands, territories and resources:

http://www.humanrights.gov.au/sites/default/files/content/social_justice/nt_report/

ntreport11/pdf/Native%20Title%20Report%202011%20-%20Full%20Report.pdf (Accessed

17 July 2014).

3 In turn, the potential for, if not actuality of, lateral violence originating in clan rivalry is

neither unique to Australia nor even to our times; witness, for example, the Battle of the Inch,

a public judicial combat which occurred at Perth, Scotland in 1396 between two Gaelic

kindreds, Clan Kay and Clan Chattan (Magnusson M, Scotland, The Story of a Nation

(Harper Collins Publishers, 2000) pp 223-224 – “Magnusson”).

4 The Barada Barna People and the BKY have, in these proceedings, embarked on a more

modern and thankfully less bloody form of public judicial combat, arising from a decision of

the first respondent, the National Native Title Registrar (native title registrar) on 27

September 2013 under the Native Title Act 1993 (Cth) (NTA) to register the native title claim

made in an application for a native title determination made by the BKY in the Register of

Native Title Claims.

5 Perspective is given to the proceedings by an understanding of the following.

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6 The applicants, on behalf of the Barada Barna People, filed a native title application in the

Court in 2008. Section 63 of the NTA requires the Court’s registrar to send a copy of a native

title application to the native title registrar as soon as practicable after that application has

been filed in Court. This is so that the native title registrar can exercise the power under

s 190A of the NTA to decide whether the application meets the criteria specified in the

“registration test” in s 190A(6), required to be met for its registration in the Register of

Native Title Claims. Such registration is a condition precedent to any progression in Court of

a native title application. The claims made in the Barada Barna People’s application were

registered on 9 October 2009. That application was notified on 29 March 2010. It became

proceeding QUD 380 of 2008 in this Court.

7 QUD 380 of 2008 is but the most recent of a number of native title applications under the

NTA by the Barada Barna People making claims in respect of some or all of the subject land.

The earliest such application was made in 1997. Whether or not native title exists is still yet

to be determined. Even so, as Edwards v Santos (2011) 242 CLR 421 (Edwards v Santos)

serves to remind, registration of a claim to hold native title on the Register of Native Title

Claims can itself confer rights on the applicant concerned in relation to the negotiation of

indigenous land use agreements (ILUA, as to which, see Subdivs B, C and D of Div 3 of Pt 2

of the NTA) by which validity can be given in advance of any determination of native title to

future acts (defined, s 233 of the NTA) in respect of land. Section 24OA of the NTA

provides, “Unless a provision of this Act provides otherwise, a future act is invalid to the

extent that it affects native title.” The effect of s 24EB of the NTA is that a future act will be

valid if the parties to an ILUA consent to it being done and, at the time it is done, details of

the agreement are on the Register of Indigenous Land Use Agreements. Edwards v Santos

also serves to remind that, where, for example, the land the subject of a claim has or may

have upon it petroleum or mineral resources, that right to negotiate can be very valuable

indeed.

8 So far as the merits of a claim are made relevant (s 190B), the evidentiary threshold for

registration is low by comparison with what may be required actually to prove the existence

of the claimed native title in respect of the land: Gudjala People # 2 v Native Title Registrar

(2008) 171 FCR 317 at [83]-[84].

9 It is thus a feature of the NTA that an applicant who has secured registration of a claim,

particularly an applicant whose ability to prove at trial the existence of the native title

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claimed may be moot, may, in certain circumstances, have no particular enthusiasm for the

progression of the application to trial. Equally, a respondent whose principal interest is in an

ability to use the claimed land in a way that would not amount to an invalid future act, if the

claimed native title were ever proved, may, in some circumstances, find it more expedient to

secure certainty as to the validity of that future land use via an ILUA with the applicant than

actively to contest the merits of the claim. Securing that agreement may come at a price.

Having secured such an agreement, that respondent, in turn, may have no particular

enthusiasm for the progression to trial of the native title application, no matter what it might

think as to an applicant’s prospects of proving native title.

10 It is neither necessary nor appropriate in this proceeding to explore whether this particular

feature of the NTA explains why it is that their claim remains undetermined, even though

some 17 years have passed since the Barada Barna People made the first of their native title

claims in relation to the subject area. Lest it be thought otherwise, it should be emphasised

there are many other factors which may intrude on the progression to finality of a native title

application in the Court by consent determination or otherwise. The point for present

purposes is that the registration of a native title application is not merely procedural but also

confers substantive rights on an applicant.

11 Once an application is registered, s 190C(3) of the NTA forbids the registration of certain

overlapping claims in respect of some or all of the land concerned by providing:

(3) The Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application, if: (a) the previous application covered the whole or part of the area

covered by the current application; and (b) an entry relating to the claim in the previous application was on the

Register of Native Title Claims when the current application was made; and

(c) the entry was made, or not removed, as a result of consideration of the previous application under section 190A.

12 On 17 October 2012, in the course of the judicial case management of proceeding QUD 380

of 2008, the applicant in that native title application was required to show cause why that

application ought not to be dismissed. Having heard from that applicant and other parties, the

Court (Collier J) made an order on 10 April 2013 that the application be dismissed: Budby on

behalf of the Barada Barna People v State of Queensland (No 2) [2013] FCA 314.

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13 The applicant in that case then sought and obtained on 31 May 2013 leave to appeal against

that order of dismissal: Budby on behalf of the Barada Barna People v State of Queensland

[2013] FCA 1469. An application for the stay of the operation of the order of dismissal was

made but the judge who heard the leave to appeal application (Dowsett J) was not, at that

stage, disposed to grant a stay. His Honour’s refusal then to grant a stay was influenced by

the lengthy delay in the prosecution of the substantive native title application by the Barada

Barna People. His Honour was alive to the possibility that, in the absence of a stay, the

applicant might “lose priority attaching to its application for a native title determination” (at

[1]) and that this could impact upon “the question of who may negotiate effectively with

persons wishing to carry out activities in connection with the claim area, pending any final

determination” (ibid) but did not consider that it was “yet clear that [this] possible prejudice

… [would] … actually occur” (at [2]).

14 Section 189A of the NTA obliges this Court’s registrar to, inter alios, notify the native title

registrar of details of any decision of the Court that covers a claim. In conformity with this

obligation, the Court’s registrar notified the native title registrar of the order dismissing the

Barada Barna People’s native title application. That led to the removal of the Barada Barna

People’s native title application from the Register of Native Title Claims.

15 The appeal against the order of dismissal was heard in August 2013. On 6 December 2013,

the Full Court set aside the order of dismissal: Budby on behalf of the Barada Barna People v

State of Queensland [2013] FCAFC 149.

16 In the meantime, the BKY had, on 13 April 2013, held an authorisation meeting in respect of

a native title application on behalf of that native title claim group for a determination of

native title claim in respect of an area of land which, as recorded above, substantially

overlaps with the area claimed on behalf of the Barada Barna People. A sequel to that

meeting was the filing in the Court on 2 July 2013 of the BKY native title application. This

became proceeding QUD 383 of 2013 in this Court. It was the claim in that application which

the native title registrar concluded passed the registration test and registered in the Register of

Native Title Claims on 27 September 2013.

17 On 5 August 2013, the Court (Dowsett J) ordered a stay of the operation of the order of

dismissing the Barada Barna People’s native title application, QUD 380 of 2008.

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18 This stay order, as s 189A of the NTA also required, was notified to the National Native Title

Registrar by the Court’s registrar. On 13 August 2013, the entry in the Register of Native

Title Claims in respect of the claim in Barada Barna People’s native title application was

amended so as to record, materially, the following particulars in respect of that application:

Registration History: Registered from 9/10/2009 to 12/04/2009

Registered from 13 August 2013.

Date claim entered on Register: 13/08/2013.

19 The claim in the Barada Barna People’s native title application and that of the BKY do not

just make overlapping claims in respect of the subject land. There are shared apical ancestors

in the native title claim groups described in the respective native title applications.

Unsurprisingly therefore, as originally pleaded, one of the controversies between the Barada

Barna People and the BKY is whether or not, in the events which transpired, s 190C(3) of the

NTA had the effect of preventing the native title registrar from registering the BKY

application.

20 On 12 November 2013 the Court (Dowsett J) granted to Mr Budby and the others who

comprise the applicant in the Barada Barna People’s native title application leave to apply for

the review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The BKY

have assumed the role of contradictor in respect of that judicial review application. The

native title registrar, who is also a respondent, has, quite properly, having regard to R v

Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, made a

submitting appearance, save in respect of any order as to costs.

21 The grounds of review in the Barada Barna People’s judicial review application have been

amended since that application was first filed. Further, one of the additional issues raised by

the amended grounds emerged only after the initial hearing of that application as a result of

further information concerning the BKY application coming to light. This required that the

matter be relisted and that the parties have an opportunity to make supplementary written

submissions. The late emerging issue raised an additional basis upon which it was alleged

that the claim to native title in the BKY application had not been authorised. Because of the

response made by the BKY to this particular issue, it is desirable that it be considered first.

22 The Barada Barna People allege that the native title registrar’s registration decision was

contrary to law because the claim in the BKY application filed on 2 July 2013 (QUD 383 of

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2013) was not authorised in conformity with s 61 and s 251B of the NTA. They allege that

that the application was not authorised because all the persons who, according to their

traditional laws and customs, hold the common or group rights constituting the particular

native title claimed did not authorise a claim in respect of the area of land and waters

specified in the application. In turn, and this is at the heart of the late emerging issue, that

absence of authorisation is said to be found in the inclusion in the BKY application of an area

of land outside the northern boundary of the native title claim which had at least purportedly

been authorised by the BKY.

23 It became common ground in the present proceeding and the fact is that the BKY application,

as filed in the Court on 2 July 2013, included a claim in respect of an area of land of some

601.65 km situated outside the intended northern boundary of the intended authorised claim.

That erroneous inclusion came about in a way explained in affidavit evidence by Mr T J

Wishart, the Principal Legal Officer of Queensland South Native Title Services Ltd

(QSNTS), the solicitor for the BKY. Mr Wishart was not required for cross-examination in

respect of his explanation. The following account of the error is based on my acceptance of

his explanation and a study of the BKY application.

24 The BKY application includes at Attachment B a written description of the external boundary

of the area of land claimed. This description states that a blue shaded area described as

“Barada Kabalbara Yetimarala Area within NQLC Region” (additional blue northern area)

forms part of the claim area. Also included (as Attachment C) in the BKY application is a

map of the external boundary of the land claimed. In this map also the additional blue

northern area is shown as being within the claim area.

25 Mr Wishart chaired and was present throughout the authorisation meeting of the BKY

mentioned above. That meeting was held at Rockhampton. At the meeting, a map was on

display which showed the intended areas of the claim (authorisation map). Those intended

areas of claim were outlined in red on the authorisation map. The additional blue northern

area lies outside the area outlined in red on the authorisation map.

26 Resolution 5 passed at the meeting on 13 April 2013 authorised, “the lodgement of a Native

Title Determination Application over the whole of the area outlined in red on the map marked

‘Proposed Claim Area’ [the authorisation map] and presented to this meeting …”.

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27 The external boundary description for the BKY application was produced by the National

Native Title Tribunal (Tribunal) at the request of the QSNTS. In making that request of the

Tribunal, the QSNTS incorrectly included in the request the additional blue northern area.

The external boundary description produced by the Tribunal described the external boundary

in terms of metes and bounds, with reference to compass directions, co-ordinates and certain

lots on plan references. It was not a lot specific description. As it happened, the error came to

light after the initial hearing of the judicial review application and upon a review of the

QSNTS file in respect of the BKY application by a solicitor in the employ of the QSNTS

under Mr Wishart’s supervision.

28 The additional blue northern area lies within the boundary of the area for which the North

Queensland Land Council Aboriginal Council (NQLC), rather than QSNTS, is the relevant

representative body for the purposes of the NTA.

29 The legislative scheme in respect of the Register of Native Title Claims is found in Pt 7 of the

NTA. The general structure of that scheme was described by the Full Court in Strickland at

[7]. One feature of that scheme is that the native title registrar must accept a particular claim

to native title for registration if, inter alios, the claim satisfies all the conditions in s 190C – s

190A(6)(b)(ii) of the NTA. If that particular requirement is not met s 190A(6B) of the NTA

provides that the native title registrar “must not accept the claim for registration”.

30 I have already set out above one of the conditions in s 190C of the NTA, namely, that found

in s 190C(3). The additional issue necessitates that some further sub-sections in s 190C be set

out:

Identity of claimed native title holders

(4) The Registrar must be satisfied that either of the following is the case:(a) the application has been certified under Part 11 by each

representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or

Note: An application can be certified under section 203BE, or may have been certified under the former paragraph 202(4)(d). A representative Aboriginal/Torres Strait Islander body may certify the application, even if it is only the representative body for part of the area claimed.

(b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.

Note: The word authorise is defined in section 251B.

…

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Requirements for uncertified applications

(5) If the application has not been certified as mentioned in paragraph (4)(a), the Registrar cannot be satisfied that the condition in subsection (4) has been satisfied unless the application:(a) includes a statement to the effect that the requirement set out in

paragraph (4)(b) has been met; and(b) briefly sets out the grounds on which the Registrar should consider

that it has been met.

31 By s 190A of the NTA, if, materially, the native title registrar is given a copy of a “claimant

application” under s 63 that registrar must, in accordance with that section, “consider the

claim made in that application”. As already noted, one of the requirements of s 190A is that

the claim satisfies all of the conditions in s 190C: s 190(6)(b)(ii). A “claimant application” is

defined (s 253 of the NTA) to mean:

a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.

32 The point made on behalf of the Barada Barna People was that the BKY application was not

a “claimant application” because there was a variance between the land which was the subject

of the authorisation resolution and the land which was the subject of that application. In short,

the claim in the BKY application as filed was not one which the BKY native title claim group

had authorised to be made. The native title registrar’s jurisdiction being materially confined

to the consideration of “claimant applications” given to that registrar by this Court’s registrar

under s 63, it was said to follow that the native title registrar had no jurisdiction under s 190A

even to consider the BKY application, much less to register the claim it contained on the

Register of Native Title Claims.

33 The submissions made on behalf of the BKY frankly acknowledged that the claim as set out

in the BKY application had not been authorised. They conceded that “it did not satisfy the

condition in s 190C(4)(b) and could not meet the registration test”.

34 A further submission of the BKY was that it did not follow that the BKY application was

incapable of amendment so as to correct the lack of conformity between the claim as

authorised and that set out in the BKY application as filed. In this regard, they referred in

support to the following observation made by McHugh, Gummow, Kirby and Hayne JJ in

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]

(Project Blue Sky):

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91 An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.

35 The BKY were correct to identify s 190C(4)(b) of the NTA as the material statutory source of

legal error by the native title registrar but, insofar as that concession was based on the point

made on behalf of the Barada Barna People, that point and the consequential concession were

based on an incorrect premise.

36 In the ordinary course of events, the concession as to error in registration would render it

academic as to whether its premise was correct. The consequence would just be that the

registration decision would be set aside without explanation as to why such an order was

being made. In this case, however, the BKY have not explicitly consented to any such

consequential order. Further, flowing from their reference to the passage from Project Blue

Sky, the BKY submitted that no invalidity in respect of the claim in the BKY application

followed from a failure to satisfy s 190C(4)(b) and that their claim might permissibly be

amended. In these circumstances, there remains a need for an explanation to be given for the

Court’s orders in respect of this proceeding.

37 The premise of the Barada Barna People’s submission was that the BKY application could

not even be considered by the native title registrar because it was not a “claimant application”

as defined. There is tension between that premise, the description in the NTA of the role

consigned to the native title registrar once a claimant application is given to that official and

the provision in the NTA for the review by the Tribunal (s 190E) on the merits of a

registration decision by the native title registrar.

38 Once given a “claimant application”, the role of the native title registrar is to “consider” it in

accordance with the requirements of s 190A of the NTA. Materially, insofar as that role

entails the procedural requirements of an application under s 61 of the NTA for a

determination of native title, the language to s 190C is that that registrar “must be satisfied”

that particular procedural requirements are met:

(a) that the application contains the details and information and is any affidavit

document, each as required by s 61 – s 190C(2);

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(b) that there is no previous overlapping claim – s 190C(3); and

(c) identity of the claimed native title holders either by representative body certification

or by the applicant being a member of a native title claim group and authorised to

make the application – s 190C(4).

39 In specifying the duty of the native title registrar to “accept the claim for registration” upon

particular requirements being met, s 190A(6)(a)(i), materially, refers to “a claim made in an

application given to the Registrar under section 63”, not to a “claimant application”. The

other requirement for acceptance, found in s 190A(6)(b), is bifurcated and is not satisfied

unless each of its elements is present. One element requires that the claim satisfies merits

requirement (s 190B); the other, materially, is that the procedural requirements as found in

s 190C of the NTA are met. Crucially, s 190C does not cast those procedural requirements in

the form of absolutes but rather requires neither more nor less than that the native title

registrar is “satisfied” that they are met.

40 As can be seen, s 190A(1) uses the term “claimant application” but s 190A(6) does not,

instead referring to “a claim made in an application given to the Registrar under section

63” (emphasis added). In turn, the obligation of this Court’s registrar, found in s 63 of the

NTA, is enlivened, “If an application under section 61 is filed in the Federal Court”

(emphasis added). If so, what must be given to the native title registrar is, materially, a copy

of the “application”: s 63(a). The term “application” is not itself defined but, materially,

s 61(1) of the NTA “sets out applications” which may be made to the Court in respect of

native title or compensation. One such application is a “native title determination

application”. Such an application is one made under s 13(1) of the NTA “for a determination

of native title in relation to an area for which there is no approved determination of native

title”. Again materially, the person or persons authorised by the native title claim group

which holds the native title claimed and, by s 61(2) termed, “the applicant” is the person(s)

who may, as designated by s 61(1), bring such an application.

41 Apart from the passage in Project Blue Sky to which the BKY pointed in their submissions,

the joint judgement in that case, at [69], offers a reminder that, “The primary object of

statutory construction is to construe the relevant provision so that it is consistent with the

language and purpose of all the provisions of the statute” and, at [70], “Where conflict

appears to arise from the language of particular provisions, the conflict must be alleviated, so

far as possible, by adjusting the meaning of the competing provisions to achieve that result

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which will best give effect to the purpose and language of those provisions while maintaining

the unity of all the statutory provisions”. These reminders are apt in the present case.

42 The premise of the Barada Barna People’s submission depends upon affording “authorised to

be made” governing of the word “application” in the definition of “claimant application” a

meaning which excludes from the native title registrar’s consideration applications

containing a claim which is purportedly authorised but which is not legally effective.

43 A similar conundrum was presented in relation to the construction of the word “decision” as

qualified by the words “made in the exercise of the powers conferred by that enactment” in

relation to the merits review jurisdiction exercisable by the Administrative Appeals Tribunal

under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). As to that, Bowen CJ

observed in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR

338 at 342:

This may mean that it must be shown there was a decision made:

(a) in pursuance of a legally effective exercise of powers conferred by the enactment; or

(b) in the honest belief that it was in the exercise of powers conferred by the enactment; or

(c) in purported exercise of powers conferred by the enactment.

44 Having regard to the subject matter, scope and purpose of the AAT Act, Bowen CJ resolved

this difficulty by concluding (at 343) that it was sufficient to enliven the Administrative

Appeals Tribunal’s review jurisdiction if there were a decision in fact, even if that was only a

purported, as opposed to a legally effective, decision. In that same case, Smithers J (at 373)

reached a like conclusion.

45 Having regard to the subject matter, scope and purpose of Pt 7 of the NTA, there would be

little point in adopting a construction which consigned to the native title registrar (or, on

merits review under s 190E, the Tribunal) the task of considering only those applications

containing claims which were indeed authorised as required by that Act to the end,

materially, of deciding whether he was “satisfied” that there was procedural compliance as

directed by s 190C. That suggests that “authorised to be made” includes those applications

purportedly authorised to be made, as well as those where the authorisation is legally

effective. This leaves a meaningful subject for the native title registrar (or later in that

official’s place the Tribunal) to “consider” and about which to be “satisfied”.

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46 This construction also affords consistency of meaning within s 190A where, as the provisions

of that section highlighted above illustrate, the word “application” is qualified in different

ways, each descriptive of the document in the form of a particular type of application filed in

this Court and then “given” to the native title registrar. That registrar’s task is to consider the

claims in an application which he is given and as filed.

47 In certain cases, the native title registrar’s consideration of a claim in an application may,

before a decision is made by the registrar as to whether to register a claim, lead the registrar

to notify the applicant that the application may be amended under this Court’s rules: s

190A(5A) of the NTA. That did not occur in this case prior to the native title registrar’s

registration decision. This provision for such notification, too, suggests that applications

which, in the form filed, contain a claim which, for one reason or another is not legally

effective are to be given to and are able to be considered by the native title registrar. The

defect in a claim might be able to be addressed, prior to a registration decision, by the

amendment by the Court of the application in which the claim is made.

48 In my view, that the native title registrar’s role is to “consider” an application and then,

materially, to decide whether he is “satisfied” that it is procedurally compliant in particular

ways means that, so far as s 190C(4) is concerned, the relevant “jurisdictional fact” is an

opinion or belief held by the native title registrar. Materially, that official had to be

“satisfied” as to certification or authorisation before the claim could be registered. It is that

“satisfaction”, not certification or authorisation per se which is the relevant “jurisdictional

fact”. The authorities concerning this type of pre-condition for the exercise of a statutory

power were notably collected and discussed by Gummow J in Minister for Immigration and

Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [127] – [137]. It is not necessary in

this case to explore those authorities, only to highlight, as did Gummow J at [136], the basis

upon which decisions so based may be judicially reviewed, which was explained by Gibbs J

in Buck v Bavone (1976) 135 CLR 110 at 118-119:

In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.

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49 In the course of her consideration of the BKY application, the native title registrar identified a

need, arising from the location of the area claimed, for the certification of the claim in that

application by both QSNTS and the NQLC. This was because she identified that the

additional blue northern area lay within the boundary of the area for which the North NQLC

was the representative body. The need for such dual certification was communicated by the

native title registrar to QSNTS. Initially, QSNTS thought that it would be possible to secure

certification of the claim by the NQLC. By 28 August 2013, it had become apparent to

QSNTS that no such certification by NQLC would be forthcoming. Accordingly, on that date,

QSNTS made a submission to the native title registrar that the claim was, in any event,

authorised such that the requirements of s 190C(4)(b) were met. In her registration decision

of 27 September 2013, the native title registrar concluded that, although she was not satisfied

that the claim was certified as s 190C(4)(a) required she was satisfied for the purposes of

s 190C(4)(b) that the claim was authorised.

50 In Northern Territory v Doepel (2003) 133 FCR 112 at [78] (Doepel), Mansfield J observed

of s 190C(4)(b) and s 190C(5) of the NTA:

In the case of subs (4)(b), the Registrar is required to be satisfied of the fact of authorisation by all members of the native title claim group. Section 190C(5) then imposes further specific requirements before the Registrar can attain the necessary satisfaction for the purposes of s 190C(4)(b). The interactions of s 190C(4)(b) and (5) may inform how the Registrar is to be satisfied of the condition imposed by s 190C(4)(b), but clearly it involves some inquiry through the material available to the Registrar to see if the necessary authorisation has been given.

I respectfully agree with these observations.

51 Also in Doepel (at [78]), Mansfield J referred with approval to the discussion in Strickland v

Native Title Registrar (1999) 168 ALR 242 at 258-259 by French J, when a member of this

Court, of the nature of the inquiry which the native title registrar must conduct “to see if the

necessary authorisation has been given”. What French J there stated was:

The affidavit attached to the application meets the requirements of s 190C(5)(a) which requires no more than a statement that the requirement of authorisation referred to in s 190C(4)(b) has been met. It is also required briefly to set out the grounds on which the Registrar should consider that it has been met. The insertion of the word “briefly” at the beginning of par 190C(5)(b) suggests that the legislature was not concerned to require any detailed explanation of the process by which authorisation is obtained. The sufficiency of the grounds upon which the Registrar should consider that the requirement has been met is primarily a matter for the Registrar. The specified grounds in this case constitute an assertion that as elders the

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two applicants have authority under traditional law and custom acknowledged by the members of the native title claim group to make decisions of this kind. The brevity of the assertion may be criticised and it might be thought consistent with the two applicants merely arrogating authority to themselves without any or any meaningful consultation with the members of the native title claim group. On the other hand, neither the Registrar nor this Court is in a position to reject the contention that all relevant authority is vested in the elders of the relevant native title claim group and that the applicants fall into that category. It is to be noted that s 190C(4) does not confine the Registrar to the statements made in the affidavit or the information provided in the application in reaching the relevant state of satisfaction. Nor is the Registrar so confined by subs 190C(5).

As did Mansfield J in Doepel, I accept this discussion as correct. Even so, it must be apparent

that there was some material before the native title registrar on the basis of which that official

could reasonably be satisfied that s 190C(4)(b) was met.

52 In this case, for all the detail which was contained in the submission which QSNTS made to

the native title registrar on 28 August 2013, there was nothing which showed that the “area

outlined in red on the map marked ‘Proposed Claim Area’ [the authorisation map] and

presented to this meeting” as referred to in Resolution 5 of those passed at the meeting of 13

April 2013, the text of which, but not the authorisation map, was provided in the submission,

was one and the same as the claim area specified in the application which had been given to

that official by this Court’s registrar for consideration.

53 Put another way, there was nothing in the material before the native title registrar upon which

she might reasonably have been satisfied that the claim as contained in the BKY application

had been authorised. That is because the evidence before the native title registrar did not

provide a basis for a conclusion that there was, as to area claimed, correspondence between

that authorised by Resolution 5 and the claim as described in the application filed in Court.

Brief though the grounds contemplated by s 190C(5)(b) need be, they must at least provide

such a basis. There must also be an evidenced correspondence between the area identified

and considered for the purposes of satisfying the native title registrar about the merits of the

claim (materially, s 190B(2) of the NTA) and the area in respect of which a claim is

authorised.

54 This was not a case where the native title registrar had no jurisdiction to consider the BKY

application. Rather, it was a case where it was not reasonably possible, on the material before

her, for the native title registrar to be satisfied that the claim in that application met the

requirements of s 190C(4)(b) of the NTA. It is for this reason that the registration decision of

27 September 2013 must be set aside.

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55 It does not follow from the setting aside of the registration decision that the BKY application

is incapable of later amendment, only that the registration decision was affected by the

jurisdictional error mentioned. The Court has power in an appropriate case to order the

amendment of an application for the determination of native title. Whether or not to order any

amendment so as to align the claim in the BKY application with what has been authorised is

not an issue before the Court in this case.

56 The Barada Barna People did raise other grounds of challenge to the native title registrar’s

decision. In light of the concession made by the BKY in response to the amended ground, it

is unnecessary to consider the other grounds of review raised. It was only necessary to make

plain, because of the submissions made by the parties, why it was that the concession did

indeed have the consequence that the native title registrar’s registration decision of 27

September 2013 should be set aside.

57 Magnusson (at 224) records that the government of the Kingdom of Scotland was

disappointed in its expectation that the public judicial combat known as the Battle of the Inch

would resolve clan rivalry and disputing between Highlander and Lowlander. As it was, it did

not with the valour displayed by the clansmen of each side serving only to add lustre to the

legend of the savage courage of each. Hundreds of years would pass in Scotland before that

rivalry and violent disputation ceased and with that greater mutual prosperity. In this case,

greater mutual magnanimity is evident, not only in the concession made by the BKY but in a

statement by the Barada Barna People that no order as to costs is sought.

58 Especially in light of an apparently common apical ancestor, it may perhaps be that the

differences between the Barada Barna People and the BKY are more apparent than real. I

therefore urge them and those representing them to reflect on whether, with that same mutual

magnanimity, further public judicial combat with respect to native title rights and interests

might be avoided by a consensual resolution of their presently overlapping claims. They and

might well find, as did the Scots, that greater mutual prosperity is the result.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

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Associate:

Dated: 31 July 2014