Quall v Native Title Registrar [2003] FCA 145 (7 March 2003)

Last Updated: 12 March 2003

FEDERAL COURT OF AUSTRALIA

Quall v Native Title Registrar [2003] FCA 145

NATIVE TITLE - review of decision of delegate of Native Title Registrar - decision not to accept an application for registration under ss 190A, 190B, 190C Native Title Act 1993 (Cth) - delegate found native title claim group in application not complete native title claim group - nature of information delegate entitled to consider - nature of review of delegate's decision under s 190D considered.

Native Title Act 1993 (Cth), ss 61-64, ss 190A-190C, s 251B

Native Title Amendment Act 1998 (Cth)

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Administrative Decisions (Judicial Review) Act 1976 (Cth)

Risk v National Native Title Tribunal and Quall [2000] FCA 1589 - followed

The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 - cited

Risk v Native Title Registrar [2001] FCA 1120 - followed

Borkovic v Minister for Immigration & Ethnic Affairs (1981) 39 ALR 186 - cited

Hamblin v Duffy (1981) 34 ALR 333 - cited

Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652 - followed

Powder v Registrar, Native Title Tribunal [1999] FCA 913 - cited

Strickland v Native Title Registrar (1999) 168 ALR 242; [1999] FCA 1530 - cited

Quall v Risk [2001] FCA 378 - cited

Daniel v State of Western Australia [2002] FCA 1147 - cited

Martin v Native Title Registrar [2001] FCA 16 - cited

Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1 - cited

The Queen v Commonwealth Conciliation & Arbitration Commission; Ex parte The Angliss Group [1969] HCA 10; (1969) 122 CLR 546 - cited

Ewert v Lonie [1972] VR 308 - cited

Shire of Swan Hill v Bradbury [1937] HCA 15; (1936) 56 CLR 746 - cited

KEVIN (TIBBY) QUALL v NATIVE TITLE REGISTRAR

D 10 of 2002

MANSFIELD J

7 MARCH 2003

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 10 OF 2002

BETWEEN:	KEVIN (TIBBY) QUALL APPLICANT
AND:	NATIVE TITLE REGISTRAR RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	7 MARCH 2003
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1. The application is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 10 OF 2002

BETWEEN:	KEVIN (TIBBY) QUALL APPLICANT
AND:	NATIVE TITLE REGISTRAR RESPONDENT

JUDGE:	MANSFIELD J
DATE:	7 MARCH 2003
PLACE:	DARWIN

REASONS FOR JUDGMENT

THE APPLICATION

1 On 30 September 1999, the applicant applied under s 61 of the Native Title Act 1993 (Cth) (the NT Act) for the determination of native title in respect of an area of land known as Howard River East. It is not necessary to identify the land the subject of the application for determination of native title in any further detail for present purposes. The applicant made a claim on behalf of himself and eight named individuals, who he elsewhere described in the application as members of the Danggalaba clan. The application was amended by leave given on 2 November 1999, but it did not change the identification of the native title claim group.

2 On 4 November 1999, a delegate of the Native Title Registrar accepted the application for registration under s 190A of the NT Act. On 12 April 2001, O'Loughlin J set aside the decision of the delegate of the Registrar, and directed the Registrar to refrain from accepting registration of the application in its then form. His Honour did so in accordance with his decision in Risk v National Native Title Tribunal [2000] FCA 1589, in which a challenge to the registration of a like application by the applicant in respect of a different piece of land was successful.

3 The applicant then sought, on 8 November 2001, and was granted leave to further amend the application. The amended application sought a determination of native title on behalf of the native title claim group described as Kulumbiringin. It identified the native title claim group as being four named families described as descendants of Kulumbiringin ancestors. The applicant asserted that he had been authorised to bring the claim, under the traditional and customary law that the Kulumbiringin hold, and that its elders had met and agreed by way of traditional and customary mechanisms to authorise the applicant to make the application.

4 On 3 May 2002, following the referral of the amended application to the Native Title Registrar pursuant to s 64(4) of the NT Act, a delegate of the Native Title Registrar determined not to accept the amended application for registration pursuant to s 190A of the Act. This is an application to set aside that decision of the delegate of the Native Title Registrar.

5 At the hearing, the applicant appeared in person. He indicated that he wished to secure legal representation. He had been unsuccessful over some time in so doing. He presented his arguments in person, but was given a further significant period during which he could explore the prospect of obtaining legal representation, and if he were able to do so, for his legal representative to make further submissions to the Court. In the event, no further submissions were made by the applicant or by any legal representatives on his behalf.

6 The Native Title Registrar entered a submitting appearance. That of course was an appropriate attitude to adopt in the proceedings: see The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-36. I directed service of the application upon the Northern Territory and upon the Northern Land Council. Ms Brownhill on behalf of the Northern Territory of Australia sought, and was granted, leave to appear as amicus curiae. It seemed to me to be appropriate to grant that leave in the absence of any contradictor in the proceedings. I thus had the benefit of her helpful written and oral submissions on behalf of the Northern Territory.

THE LEGISLATION

7 The procedures in the Act for the registration of applications for determination of native title were introduced by the Native Title Amendment Act 1998 (Cth). Prior to those amendments, there was no requirement under the Act that an applicant for native title had the authority on behalf of the native title claim group to have pursued the claim. The focus upon the central importance of those bringing such claims to have the authority of the native title claim group derives in large measure from the 1998 amendments. Sections 190A-190D were introduced as part of that package of amendments.

8 Under s 190A the Registrar is directed to consider a native title claim referred under s 63 or s 64(4) of the Act - the latter provision requiring the referral to the Registrar of an amended application. He is directed by s 190A(6) to accept the claim for registration if it satisfies all of the conditions in ss 190B and 190C of the NT Act, but in any other case is directed not to accept the claim for registration. Section 190B deals mainly with the merits of the claim, and s 190C deals with procedural and other matters. In particular, s 190C(2) requires that the Registrar be satisfied that the application contains all the details and other information, and is accompanied by any other affidavit or other document, required by ss 61 and 62 of the NT Act. Sections 61 and 62 of the NT Act as now in force were themselves part of the 1998 amendments.

9 It is not necessary to set out all of the terms of those provisions. That is because, in respect of certain conditions, the delegate of the Registrar determined that the application as amended met those requirements. I shall set out only those parts of ss 190B and 190C which the Registrar found not to have been met. They were as follows:

"190B

(1) This section contains the conditions mentioned in paragraph 190A(6)(a).

...

(3) The Registrar must be satisfied that:

(a) the persons in the native title claim group are named in the application; or

(b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.

...

(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:

(a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and

(b) 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

(c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

(6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

(7) The Registrar must be satisfied that at least one member of the native title claim group:

(a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or

(b) previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters 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.

...

190C

(1) This section contains the conditions mentioned in paragraph 190A(6)(b).

(2) The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.

(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.

(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

(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."

THE FOUNDATION FOR THE APPLICATION

10 It is unclear whether the present application is brought under the Administrative Decisions (Judicial Review) Act 1976 (Cth) (the ADJR Act) or pursuant to s 190D(2) of the NT Act. The application does not on its face refer to either of those possible bases. The applicant in his oral submissions did not do so, although in the supporting affidavit he referred to the ADJR Act. I propose to consider the application as if it were brought under both of those provisions.

11 Jurisdiction under the ADJR Act to review the Registrar's decision not to accept a native title determination application for registration has been accepted in Risk v Native Title Tribunal [2000] FCA 1589 and in Risk v Native Title Registrar [2001] FCA 1120. It is clear that an application under the ADJR Act is strictly an application to review the legality of the decision making process, and does not involve a fresh determination of issues of facts in substitution for those of the Registrar: see e.g. Borkovic v Minister for Immigration & Ethnic Affairs (1981) 39 ALR 186 at 188; Hamblin v Duffy (1981) 34 ALR 333 at 335.

12 The nature of the Court's review of the Registrar's decision not to accept a claim for registration under subs 190D(2) and (3) is not clearly expressed in the NT Act. Section 190B(2) simply provides for the applicant to have the right to apply to the Court for a review of the Registrar's decision not to accept the claim for registration, and it gives the Court jurisdiction to hear and determine such an application. Ms Brownhill drew to my attention the decision of the Full Court (Beaumont, Wilcox and Lee JJ) in Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652 in which their Honours said at [65], [49]:

"It is important to note that a s 190D review is not restricted to consideration and determination of a question of law. Section 190D(4) makes it plain that the review extends to determination of issues of fact. The NTA does not proceed on the premise that questions of fact in the relevant controversy have been settled by the administrative determination, and the only matter in respect of which jurisdiction is conferred is any controversy on questions of law. The review proceeding enlivens the jurisdiction of the Court in respect of the whole of the matter."

The review under s 190D which the Full Court was there considering raised the question whether the Court should re-determine factual issues in the light of material available at the time of its determination, but not available at the time of the Registrar's decision. The Full Court held the Court was not restricted to the material before the Registrar. The Court was therefore able to take into account events that had occurred since the Registrar's decision. Counsel for the Northern Territory also drew my attention to the earlier decision of Kiefel J in Powder v Registrar, Native Title Tribunal [1999] FCA 913 in which her Honour at [16]-[33] considered the nature of a review under s 190D of the NT Act. Her Honour concluded at [34]:

"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 re-hearing 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."

French J in Strickland v Native Title Registrar (1999) 168 ALR 242; [1999] FCA 1530 at 255 [43] referred to and agreed with that passage in the reasons for judgment of Kiefel J in Powder. It may be that the Full Court in Strickland did not have brought to its attention the decision of Kiefel J in Powder.

13 However, I am of course bound to follow the decision of the Full Court in Strickland. In doing so, the outcome of the present application is not going to change. In the present matter there is no additional information adduced of substance by the applicant, or which has otherwise come to the attention of the Court subsequent to the decision of the Registrar relating to the grounds upon which the amended native title determination application was not accepted for registration. Consequently, the Court is conducting a review of the Registrar's decision essentially on the same material as was available to the Registrar.

14 The application identified the ground of review in his application as being that:

"A constituted group (amend) all claims do not overlap as they are a consolidated claim. There is no overlapping of common membership. ... bias."

The applicant also sought to rely upon his affidavit sworn 22 November 2002. Apart from reciting the history of the matter, it alleges that the Tribunal acted in bad faith "of evidence provided by other parties". It also asserts that the application should have been accepted for registration as a majority of the requirements of the Act were met.

15 In the light of that material, and the applicant's oral submissions, the grounds for review appear to be as follows:

(a) that a majority of the requirements of the NT Act were met, so the delegate's decision not to register the claim amounted to an error of law;

(b) that the delegate's decision was an improper exercise of power because she took into account an irrelevant consideration, namely her reliance on "evidence provided by the other parties";

(c) that the delegate's conclusions that the requirements of ss 61(1), 61(4), 190B(3), 190B(5), 190C(3), 190C(4) and 190C(4)(b) were not met was erroneous because:

(i) the conclusion that the native title claim group comprised in the present application was not a properly constituted native title claim group was wrong; and

(ii) the conclusion that the claim overlapped another registered claim under which there was membership in common with the claimant group in the present application was also wrong;

(d) that the delegate of the Native Title Registrar was biased or acted in bad faith, by considering the application with a closed mind. It appeared from the oral submissions that the contention was that the delegate of the Registrar had regard to evidence and findings made in the Kenbi Land Claim.

16 That is a reference to the Report and Recommendations of the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) entitled The Kenbi (Cox Peninsula) Land Claim No 37. It concerned a land claim in respect of a large area of land on the Cox Peninsula, on the western side of the Darwin Harbour, across the harbour from Darwin. There were four claimant groups, including one called the Larrakia group, as well as one called the Danggalaba group. The Northern Land Council instructed counsel on behalf of the Larrakia group, as well as separate counsel for the other claimant groups except for the Danggalaba group. The present applicant appeared as a separate party during the hearing on certain occasions, before counsel for the Danggalaba group was retained. The Larrakia group is a larger group than the Kulumbiringin group (as now identified). The applicant's contention appeared to be that the delegate of the Registrar had proceeded simply to accept evidence in the Kenbi Land Claim without considering its rightness or wrongness. The applicant disputed that the Kulumbiringin are simply a sub-group of the wider Larrakia native title claim group. The wider Larrakia group has also made a claim for determination of native title in respect of the land at Howard River East (and other extensive areas around Darwin).

CONSIDERATION

17 In my judgment, the first of the identified grounds of review must fail. That is because s 190A(6) directs the Registrar not to accept the claim for registration unless all of the conditions specified in ss 190B and 190C are met. It does not provide the Registrar with any discretion to accept the claim for registration if the majority of the requirements of those provisions are met.

18 The delegate of the Registrar identified in her decision the information which she had considered. It was extensive information recorded in files and data bases, and included correspondence from the Northern Land Council, from the Solicitor for the Northern Territory, and extracts from the Kenbi Land Claim Report as well as material presented by the applicant.

19 Section 190A directs the Registrar, in considering a claim, to have regard to a range of information in the following terms:

"(3) In considering a claim under this section, the Registrar must have regard to:

(a) information contained in the application and in any other documents provided by the applicant; and

(b) any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and

(c) to the extent that it is reasonably practicable to do so in the circumstances - any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar's opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim;

and may have regard to such other information as he or she considers appropriate."

20 The delegate's reasons for decision indicate that she also had regard to earlier decisions of the Court dealing with the same issue as that arising in the current native title determination application, that is the composition of the native title claim group as presented by the applicant in other claims but in almost identical terms to the present application. It appeared from the applicant's oral submissions that his concern about the use, or wrongful use, of "evidence provided by other parties" was essentially the delegate's use of information in the Kenbi Land Claim Report. He complained that the information referred to by the Aboriginal Land Commissioner about the nature of the Danggalaba group and about the Larrakia group was erroneous, and the findings of the Aboriginal Land Commissioner on those matters were erroneous. He complained in submissions about the process by which evidence was given during the Kenbi Land Claim hearing, although he did not specifically adduce on this hearing evidence himself other than that which was in the application and to which reference has been made above. In effect, he disputed the finding that the Kulumbiringin (or the Danggalaba) are a sub-group of the Larrakia native title claim group, and asserted that they are a native title claim group in their own right. He did not otherwise identify any evidence provided by other parties of which, he complained, the delegate of the Registrar had made use, or had made wrongful use, in reaching her decision. The applicant himself in a supplementary submission to the delegate on 17 December 2001 referred to parts of the Kenbi Land Claim Report.

21 In my judgment, the delegate of the Registrar did not err in having regard to the information contained in the Kenbi Land Claim Report, or indeed in having regard to any of the information to which she referred in her reasons for decision. Section 190A(3) provides that the Registrar may have regard to such other information as he or she considers appropriate in addition to the information specifically referred to in sub par (a)-(c). Section 190A(3)(b) clearly contemplates that the Registrar may obtain information by searching registers of interests in relation to land or waters maintained by the Commonwealth, State or Territory and may also have regard to information supplied by the Commonwealth, State or Territory that is, in the Registrar's opinion, relevant to whether any one or more of the conditions set out in ss 190B or 190C are satisfied. O'Loughlin J in Risk v National Native Title Tribunal [2000] FCA 1589 at [25] referred to the breadth of information to which the Registrar may have regard under s 190A(3).

22 It must also be borne in mind that the effect of registration of a native title claimant application is that the person or persons in whose name or names the application for determination of native title is made becomes a registered native title claimant (s 253), and is thereby, in general terms, a native title party as defined in s 30 of the NT Act entitled to be a negotiation party for the purpose of negotiations under Sub Div P of Div 3 of Part 2 of the NT Act. The Native Title Register, therefore, as a public document has considerable public significance. The functions and powers of the Native Title Registrar in determining whether to accept an application for registration should not be circumscribed or confined to some form of administrative inquiry in which reliance may be placed only on the information provided by an applicant. The public significance of the Native Title Register also indicates the Registrar should be entitled to inform himself or herself of matters of significance, and (as contemplated by s 190A(3) of the NT Act) to receive information from the relevant Commonwealth, State and Territory governments or land councils.

23 In my judgment, therefore, the delegate of the Registrar was entitled to have regard to the information identified in the reasons for decision, and did not err in law by having regard to that information.

24 The substance of the applicant's complaints relate largely to the use to which such information was put in concluding that the application should not be received for registration. The delegate's decision carefully considered the amended native title determination application. She discerned (as the applicant now asserts) that the native title determination application is now in respect of the Kulumbiringin people as a discrete native title claim group who, in accordance with traditional laws and customs, hold the common or group rights and interests in the claim area. That is, it is not for a sub-group of the Larrakia group but for a different discrete native title claim group.

25 The delegate then proceeded to address whether there was evidence why the Kulumbiringin group as identified is an appropriate claim group in the face of the earlier claims in the native title determination application that the appropriate claim group was the Danggalaba clan, and in the light of information more generally of the claim area being subject to a native title determination application on behalf of the Larrakia group of which the Kulumbiringin as a separate clan may be part of.

26 It is apparent that the identification of the native title claim group is one which goes to the heart of a native title claim: Quall v Risk [2001] FCA 378 at [67] per O'Loughlin J; Daniel v State of Western Australia [2002] FCA 1147 at [11] per French J. Section 190C(2) thus requires the application to contain all the details and other information required by ss 61 and 62 of the NT Act. Section 61(1) requires the native title determination application to identify the person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claim, provided the person or persons are also included in the native title claim group. Consequently, the delegate of the Registrar had to consider whether, on the basis of the native title determination application and such other relevant information as was received or considered, the application had been made on behalf of a native title claim group. The delegate had regard to the observations of O'Loughlin J in Risk v National Native Title Tribunal [2000] FCA 1589 at [60] that:

"A native title claim group is not established or recognised merely because a group of people (of whatever number) call themselves a native title claim group. It is incumbent on the delegate to satisfy herself that the claimants truly constitute such a group ... [T]he tasks of the delegate include the task of examining and deciding who, in accordance with traditional law and customs, comprised the native title claim group."

The applicant did not suggest the delegate was wrong to have addressed the matter in that way. Rather, as I understood him, his complaint was that the wrong factual conclusion had been reached.

27 The native title determination application specified the Kulumbiringin to comprise four senior people: Yula Williams, Mary Raymond, Rona Alley and Ron Quall and their descendants. There were 27 named persons comprising the Kulumbiringin group. In fact, as the delegate noted, the information available suggested that some of the offspring of the families of the four elders or senior members named had not been included. The applicant did not explain the apparent deficiency.

28 More importantly, as it seems to me, the delegate referred to Attachment S to the native title determination application to discern the apical ancestors of the Kulumbiringin group. It revealed that the claimant group are descendants of three Kulumbiringin ancestors: Dedja Batcho, Dolly Gurrinyee and Sam Gundook. The Kenbi Land Claim reports identifies Dedja Batcho as having eight children, seven of whom had descendants. Four of those descendants are the four senior people referred to in the preceding paragraph. Thus, the delegate observed, three of those seven descendants are omitted from the native title claim group, namely Victor Williams, Bert Batcho and Lucy May (Batcho). Information in the Kenbi Land Claim Report also indicated that each of those three people had some descendants. The delegate noted that the applicant had explained that certain of those descendants preferred to remain with the larger Larrakia group, and had therefore "opted out" of the Kulumbiringin claim group. The delegate further noted that the application did not indicate whether Dolly Gurrinyee and Sam Gundook were deceased, or whether they had any living descendants, and if they had living descendants as to why their descendants should not be included in the claim group. (In another matter before the Court, it appeared that both of those persons are deceased). In any event, it is correct (as the delegate found) that the native title claim group as expressed did not address the issue of their descendants. The delegate also observed that essentially the same persons as now comprise the Kulumbiringin native title claim group appeared to be those previously identified by the applicant, during the Kenbi Land Claim hearings, as Danggalaba people.

29 On the basis of that material, the delegate concluded that the native title claim group as currently described is not properly constituted within the meaning of s 61(1) of the Act as it does not include all those people "who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed". It also followed that the requirements of s 61(4) of the NT Act also were not satisfied. It requires the application to name all the persons in the native title claim group, or to describe them sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. As the claim group was not properly described or constituted, the delegate concluded that that requirement also was not met. Consequently the delegate considered there was a failure to comply with s 190C(2).

30 In my judgment, that process of reasoning of the delegate is not attended by any demonstrated factual misconception or any error of law in the way in which she approached the material. The delegate identified the appropriate issue and addressed it. Her determination of the facts is not shown to have been erroneous. She has explained the material upon which she relied in reaching the conclusion which she did. That material was capable of leading to that conclusion. Although the delegate's conclusion does not expressly use the word "described" to which reference is made in s 61(4)(b), it is apparent that that is what the Tribunal intended to convey. The delegate did address the right question, and was entitled to conclude that the native title claim group described in the application does not include all of the persons who hold the common or group native title rights or interests.

31 In my judgment, it is not appropriate for the Court on the present application to go beyond that conclusion and to re-address afresh the issues of fact which the delegate decided. If the application is made under the ADJR Act, it is not the function of the Court to do so. If the application is made under s 190D(2), accepting that there may be circumstances in which the Court on review of a Registrar's decision may substitute its own findings of fact as explained by the Full Court in Strickland, it is not appropriate to do so in this instance. The applicant argued the review application on the basis of demonstrating legal error in the process of the delegate's reasoning. He did not have before the Court all the material which was before the delegate, as disclosed in her reasons for decision. He did not adduce any fresh evidentiary material. The Court was thus asked to review the delegate's decision only by reference to the scanty material in the application for review, and the documents filed in the native title determination application and material presented to the Registrar in relation to the registration decision by the applicant and by the Northern Territory (helpfully assembled by the Northern Territory).

32 In my view, therefore, the delegate's conclusions that:

(i) it cannot be said that the persons in the "native title claim group" are named in the application, because there are some members of that group who are not known, and

(ii) it cannot be said that the persons in the "native title claim group" are described sufficiently clearly, because of the inconsistency between the specific list of 27 named persons in Schedule A and the broader description of the claimant group as descendants of certain apical ancestors in Attachment S to the native title determination application,

are not demonstrated to be erroneous. It follows that the delegate's conclusion that the requirements of s 61(4) and s 190B(3) were not satisfied is also one which should stand.

33 Those matters are sufficient to deal with the present application. That is because s 190A(6) requires all the conditions imposed by ss 190B and 190C to be met before a native title determination application may be registered. However, it is appropriate to briefly refer to the other matters upon which the delegate based her decision.

34 Section 190C(3) addresses common claimants in overlapping claims. It precludes the registration of an overlapping claim where there are members of the claimant group common to a prior registered claim and the one being tested for registration. The correct approach to this issue was described by French J in Strickland at [29]. It was not a matter which the Full Court on appeal in Strickland was required to address. The delegate correctly identified that at the time of the original application on 30 September 1999, and continuing at the time of the current application, another claim was made in respect of the claim area which fell within s 190C(3). The applicant did not directly attack that conclusion.

35 Section 190C(4) is set out above. The relevant provision is sub par (b), concerning authorisation. Section 190C(5) directs the Registrar not to be satisfied that the condition in sub par (b) has been met unless the application includes a statement to the effect that the requirements set out in sub par 4(b) have been met and briefly sets out the grounds on which the Registrar should consider that such conditions have been met. The formal requirements of s 190C(5) are met. The delegate, however, was not satisfied that the requirements of s 190C(4)(b) were met, following from her decision that the native title claim group was not properly described or constituted. The delegate was not satisfied therefore that the applicant was authorised by all other persons in the relevant native title claim group to make the claim in accordance with the process of decision-making recognised under the traditional laws and customs of the group. Section 251B makes it clear that authorisation must be given by all the persons in the native title claim group in accordance with the process of decision-making under traditional laws and customs, unless there is no such process. It followed, from the delegate's view that the claim group was not properly described and constituted, that the applicant was not authorised on behalf of all the persons in the native title claim group. Once the delegate was not satisfied that the native title claim group as described met the requirements of s 61(1) and s 190B(3) that conclusion followed.

36 The Registrar was also not satisfied that the requirements of s 190B(5) were met. That is, the delegate was not satisfied that there was a sufficient factual basis to support the assertion that the claimed native title rights and interests exist. The delegate referred at length to the factual material supplied by the applicant and to additional material: see e.g. per Martin v Native Title Registrar [2001] FCA 16 at [23] per French J. She described the material provided as "extensive and compelling". However, because she was not satisfied that the application was made by a properly constituted native title claim group as defined by the Act in s 61(1), and s 190C(2), she did not think it possible to be satisfied of a sufficient factual basis to support the assertions set out on behalf of the particular native title claim group specified in the application. Otherwise, the particulars provided would have been sufficient.

37 Thus, the delegate's decision turned in this regard on her approach to s 61 and the identification of the native title claim group for the purposes of s 190B(3). For the same reasons, the delegate found that the requirements of ss 190B(6) and 190B(7) were not met. As I have concluded that the delegate's decision as to the requirements of s 61 and s 190B(3) should not be disturbed, her conclusion as to those further provisions should also remain undisturbed.

38 I note that the Northern Territory drew attention to the delegate's decision that the requirements of s 190D(4) of the Act were satisfied. It requires the native title determination application to describe, in accordance with s 62(2)(d) of the NT Act, the native title rights and interests claimed so that they may be readily identified. The Northern Territory contended that the native title rights as expressed and described in the native title determination application did not make their nature and content readily ascertainable. Reference was made to the remarks of French J in Strickland at 261, and to Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1 at [52]. It is asserted in the native title determination application that the statements or descriptions of the claimed native title rights and interests are subject to the effect of all existing native title rights and interests, and subject to any native title rights and interests which may be shared with any others who establish that they are native title holders of the area. The contention was that such an expression is inconsistent with the claimed rights. It was contended that the delegate erred in treating the expression of the claimed rights as being claims to exclusive rights to the extent that s 47B can operate so as to require the Court to disregard any previous non-exclusive possession act. As I have determined to reject the application in any event, I do not need to address that issue further.

39 The complaint of bias or lack of good faith is a serious allegation. It should not be made without there being a proper foundation for the allegation. In this instance, the complaint of bias or pre-judgment is based upon the assertion that the Tribunal did not genuinely address the applicant's claims, but simply adopted material from other claims and particularly information from the Kenbi Land Claim. I do not think the delegate's approach to this matter demonstrates that she did not approach her consideration of the applicant's claim with a mind open to persuasion. Her reasons bespeak otherwise. I have concluded she was entitled to have regard to an extensive range of material to reach her views. I do not think her approach demonstrates either actual bias, or apprehended bias, namely that a suspicion may be reasonably engendered in the minds of those who came before the Registrar or in the minds of the public that the Registrar or his delegates may not bring to the resolution of the questions arising before them fair and unprejudiced minds: see The Queen v Commonwealth Conciliation & Arbitration Commission; Ex parte The Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 553-554. The applicant has not pointed to evidence of any bias on the part of the delegate other than a reference to material provided by others. As I have said, reference to such material on the part of the delegate is proper. I do not discern from the applicant's oral submissions any other grounds upon which he asserts bias on the part of the delegate.

40 The fact that the Registrar or the delegate of the Registrar had previously considered like applications on the part of the applicant, and has rejected them, does not mean that the delegate could not bring to the making of the decision an unbiased mind: see Ewert v Lonie [1972] VR 308. In fact, as the delegate's reasons indicate, she considered the fresh amended description of the claim group carefully and the material advanced by the applicant in the application extensively and otherwise to determine whether the native title claim group as asserted satisfied s 61(1) of the NT Act. Given previous decisions, it would not be unrealistic for the applicant to have thought that he would not have much chance of succeeding in having his application accepted for registration, but there were differences between the application as presently expressed and his earlier applications which had been considered by the delegate of the Registrar. The delegate addressed those differences, and sought to explore their significance. At the end of the day, however, the decision was adverse to the applicant. The decision, in my judgment, resulted from a careful analysis of the present application, noting the significant differences between it and the unamended version of the application and other applications made by the applicant in respect of other areas of land. She considered earlier decisions in relation to previous expressions of native title claim groups involving the applicant, and in other cases. It was appropriate to do so. She had regard to the findings of the Aboriginal Land Commissioner in the Kenbi Land Claim, and the apical ancestors described in it. The delegate was entitled to refer to such material, having regard to s 190A(3) of the Act. She gave the applicant an opportunity to respond to the material provided by the Northern Territory and by the Northern Land Council. The applicant made use of that opportunity.

41 In my judgment, the delegate's reasons reflect a careful and considered approach to the fulfilment of her task. It does not give rise to a conclusion that she was biased either in an actual sense or in an apprehended sense. Nor does it give rise to any conclusion that she did not approach her task in good faith and with a view to achieving an end or objective outside the purpose for which the decision-making power was conferred: cp Shire of Swan Hill v Bradbury [1937] HCA 15; (1936) 56 CLR 746.

42 Accordingly, I consider that the application should be dismissed. I so order. There is no issue as to costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 5 March 2003

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr J Brohier
Solicitor for the Respondent:	Australian Government Solicitor
Counsel for the Northern Territory appearing by leave as amicus curiae:	Ms S Brownhill
Solicitor for the Northern Territory:	Solicitor for the Northern Territory
Date of Hearing:	3 December 2002
Date for Close of Submissions:	24 January 2003
Date of Judgment:	7 March 2003