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Federal Court of Australia - Full Court |
Last Updated: 22 October 2008
FEDERAL COURT OF AUSTRALIA
Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157
ABORIGINES – native title
– claimant application – registration of application –
criteria for registration – sufficiency
of asserted factual basis for
native title rights and interests claimed – relationship to statutory
requirements for contents
of application – review of Registrar’s
decision – nature of review – appeal against review decision –
whether unduly onerous standard applied by reference to sufficiency of evidence
in support of application
Held – appeal allowed
Native Title Act 1993 (Cth) s 62, s
190A(6), s 190D
Alphapharm Pty
Ltd v H Lundbeck A/S [2008] FCA 559 cited
Bodney v Bennell [2008] FCAFC 63; (2008)
167 FCR 84 cited
Borowski v Quayle [1966] VR 382 cited
Martin v Native Title Registrar [2001] FCA 16 cited
Members
of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422
cited
Northern Territory v Doepel [2003] FCA 1384; (2003) 133 FCR 112
cited
Wakaman People No 2 v Native Title Registrar [2006] FCA 1198; (2006) 155 FCR 107
cited
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 cited
Western
Australia v Strickland [2000] FCA 652; (2000) 99 FCR 33
cited
GUDJALA PEOPLE # 2 (DAVID ALLIE,
ROE HERO, WILLIAM SANTO, GAVIN ALLINGHAM, ALLAN HUEN, GLORIA SANTO) v NATIVE
TITLE REGISTRAR, STATE
OF QUEENSLAND and ATTORNEY-GENERAL OF THE COMMONWEALTH OF
AUSTRALIA
QUD 391 OF 2007
FRENCH, MOORE AND LINDGREN
JJ
27 AUGUST 2008
SYDNEY (HEARD IN BRISBANE)
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AND:
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
2. The order made by the learned primary judge dismissing the application for review of the Registrar’s decision be set aside.
3. The application for review be remitted to his Honour for reconsideration in accordance with the reasons for judgment herein.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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GUDJALA PEOPLE # 2 (DAVID ALLIE, ROE HERO, WILLIAM SANTO, GAVIN
ALLINGHAM, ALLAN HUEN, GLORIA SANTO)
Appellants |
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AND:
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NATIVE TITLE REGISTRAR
First Respondent STATE OF QUEENSLAND Second Respondent ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Intervenor |
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JUDGES:
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FRENCH, MOORE AND LINDGREN JJ
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DATE:
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27 AUGUST 2008
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PLACE:
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SYDNEY (HEARD IN BRISBANE)
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REASONS FOR JUDGMENT
Introduction
1 On 21 April 2006 David Allie, Roe Hero, William Santo, Gavin Allingham, Allan Huen and Gloria Santo filed an application for a native title determination in this Court. The application was designated the Gudjala People Core Country Claim # 2.
2 The native title claim group was defined in Schedule A to the application. Its members were referred to as the Gudjala Native Title Claim Group. The applicants (we will call them "appellants") asserted that they were entitled to make the application as Aboriginal persons descended from named ancestors and belonging, according to traditional law and custom, to the Gudjala People.
3 The land affected by the application is an area of Central Queensland near Charters Towers, south west of Townsville.
4 This was the second native title determination application filed by the appellants. An application entitled "Gudjala People Core Country Claim" had been filed on 22 March 2005 and accepted for registration under the Native Title Act 1993 (Cth) (the NTA) on 22 April 2005. The external boundaries of the area covered by the primary application were exactly the same as the external boundaries of the Gudjala People Core Country Claim # 2. However the two applications differed in the internal areas which they excluded. The primary claim covered the entire area within the external boundaries except for parts excluded by reference to other named native title applications. The second application covered only those areas excluded from the first. The function of the second application appears to have been to fill gaps excluded from the first application.
5 As required by s 63 of the NTA, the Registrar of the Federal Court gave a copy of the application to the Native Title Registrar. The Native Title Registrar then considered whether or not the application should be registered applying the statutory criteria set out in ss 190B and 190C. On 1 November 2006 a delegate of the Native Title Registrar decided not to accept the claim for registration. The delegate considered that the claim did not satisfy the conditions mentioned in s 190B(3), (5), (6) and (7) of the NTA.
6 The appellants filed an application in the Federal Court under s 190D on 7 December 2006 seeking a review of the delegate’s decision. A judge of the Court heard the application on 12 March 2007 and dismissed it on 7 August 2007. On 22 November 2007 the appellants filed an application for leave to appeal out of time against that decision. This Court granted leave at the beginning of the hearing of the appeal on 14 May 2008. Neither the respondents nor the intervenor opposed the granting of leave.
7 For the reasons that follow, we are of the opinion that the appeal should be allowed on the basis that his Honour applied to his consideration of the application a more onerous standard than the NTA requires. The application should be remitted to his Honour for reconsideration consistently with these reasons.
Statutory framework
8 The requirements for a claimant application under the NTA are set out in s 62 which provides, inter alia:
(1) A claimant application (see section 253): (a) must be accompanied by an affidavit sworn by the applicant: ... (iii) that the applicant believes that all of the statements made in the application are true; ... (b) must contain the details specified in subsection (2); and (c) may contain details of: (i) if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application – that traditional physical connection; or (ii) if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application – the circumstances in which the access was prevented. (2) For the purposes of paragraph (1)(b), the details required are as follows: ... (d) a description of the native title rights and interests claimed ...;(i) the native title claim group have, and the predecessors of those persons had, an association with the area; and (ii) there exist traditional laws and customs that give rise to the claimed native title; and (iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.(e) a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:
9 Part 7 of the NTA provides for a Register of Native Title Claims. The Register is established by s 185. It is to be kept by the Native Title Registrar. Section 190(1) requires that the Registrar include in the Register details of any claims accepted for registration by the Registrar under s 190A or in response to notification by the National Native Title Tribunal (NNTT) under s 190E.
10 The contents of the Register include (s 186):
... (f) a description of the persons who it is claimed hold the native title; (g) a description of the native title rights and interests in the claim that: (i) the Registrar or the NNTT in applying subsection 190B(6); or(ii) a recognised State/Territory body in applying provisions equivalent to that subsection;
considered, prima facie, could be established.
11 Under s 190A, where the Registrar is given a copy of a claimant application under s 63 or subs 64(4), the Registrar must in accordance with s 190A consider the claim made in the application. In considering a claim under s 190A the Registrar must have regard to the information contained in the application and in any other documents provided by the applicant (s 190A(3)(a)). The Registrar is also required to have regard to any information obtained by the Registrar as a result of any searches conducted of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory (s 190A(3)(b)). The Registrar may also have regard to any information supplied by the Commonwealth, a State or a Territory relevant to whether the conditions set out in ss 190B or 190C are satisfied in relation to the claim (s 190A(3)(c)). The Registrar may also have regard to "such other information as he or she considers appropriate" (the concluding words of s 190A(3)).
12 The test for registration is set out in s 190A(6) in the following terms:
The Registrar must accept the claim for registration if: (a) either:(i) the claim was made in an application given to the Registrar under section 63; or(ii) the claim was made in an amended application given to the Registrar under subsection 64(4) and subsection (6A) of this section does not apply; and
(b) the claim satisfies all of the conditions in:
(i) section 190B (which deals mainly with the merits of the claim); and
(ii) section 190C (which deals with procedural and other matters).
13 Section 190B provides, relevantly, as follows:
(1) This section contains the conditions mentioned in subparagraph 190A(6)(b)(i).
Identification of area subject to native title
(2) The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.
Identification of native title claim groups
(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.
Identification of claimed native title
(4) The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.
Factual basis for claimed native title
(5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:
(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.
Prima facie case
(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.
Physical connection
(7) The Registrar must be satisfied that at least one member of the native title claim group:
(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.(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
Section 190B(8), which relates to failure to comply with s 61A, and s 190B(9), which deals with extinguishment, are not material for present purposes.
14 There is a process for review of a delegate’s decision to refuse registration of an application. Section 190D provided, at the relevant time, inter alia:
If the claim cannot be registered(1) If the Registrar does not accept the claim for registration, the Registrar must, as soon as practicable, give the applicant and the Federal Court written notice of his or her decision not to accept the claim, including a statement of the reasons for the decision.
Content of notice where failure to satisfy physical connection test
(1A) If the only reason why the Registrar cannot accept the claim for registration is that the condition in subsection 190B(7) (which is about a physical connection with the claim area) is not satisfied, the notice must advise the applicant of the applicant’s right to make an application to the Federal Court under subsection (2) and of the power of the Court to make an order in accordance with subsection (4) in respect of the application.
Applicant may apply to Federal Court for review
(2) If the Registrar gives the applicant a notice under subsection (1), the applicant may apply to the Federal Court for a review of the Registrar’s decision not to accept the claim.
Federal Court has jurisdiction
(3) The Court has jurisdiction to hear and determine an application made to it under subsection (2).
Court order where physical connection test failed
(4) If, on an application under subsection (2) in a case to which subsection (1A) applies, the Court is satisfied that:
(iii) any holder or a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease;(a) prima facie, at least some of the native title rights and interests claimed in the application can be established; and
(b) at some time in his or her lifetime, at least one parent of one member of the native title claim group had a traditional physical connection with any part of the land or waters and would reasonably have been expected to have maintained that connection but for things done (other than the creation of an interest in relation to land or waters) by:
(i) the Crown in any capacity; or
(ii) a statutory authority of the Crown in any capacity; or
the Court may order the Registrar to accept the claim for registration.
Opportunity to be heard
(5) Before making an order under subsection (4), the Court must give to any person who is a party to the proceedings in the Court under Part 4 in relation to the application an opportunity to be heard in relation to the making of the order.
Subsequent to the appellants filing their application for review of the delegate’s decision, s 190D was amended by the Native Title Amendment Act 2007 (Cth) and the Native Title Amendment (Technical Amendments) Act 2007 (Cth). Unless otherwise stated, references in these reasons to s 190D are references to the section as it stood prior to those amendments.
The application – claim group description
15 The description of the native title claim group is required to be set out in Schedule A to the native title determination application. In this case the description was in the following terms:
The criteria for membership of the Gudjala native title claim group is in accordance with traditional laws acknowledged and customs observed by the Gudjala People who are traditionally connected to the area described in Schedule B ("application area") through: 1. physical, spiritual and religious association; and 2. genealogical descent; and 3. processes of succession; and who have communal native title in the application area, from which rights and interests derive. The Gudjala native title claim group is comprised of all persons descended from the following ancestors: . Alice Anning (White Huen) of Bluff Downs; . Cissy McGregor . Maggie Thomson . Topsy Hann.The delegate’s reasons for decision – native title claim group description (s 190B(3))
16 The delegate found, adversely to the appellants, that the requirements for identification of the native title claim group set out in s 190B(3) of the NTA were not met.
17 The delegate held that the description in Schedule A was in two parts. The second paragraph, taken on its own, would satisfy the requirements of s 190B(3). The first paragraph was said, however, to modify the simplicity of the second by apparently introducing "criteria for membership" which would raise doubts about what was meant by the term "descendants" in the second paragraph. The delegate said:
I have considered whether the paragraph is intended to be read as saying that the apical ancestry description in paragraph 2 is itself in accordance with the criteria in paragraph 1 but I do not think it can be taken that way. The explicit statement in the paragraph concerning membership criteria means that it cannot be regarded as simply some form of general assertion about the connection of the members defined in paragraph 2. Although on the face of it it seems to me to be more a statement about issues of connection, I must take it into account where it appears.18 The application of the criteria in the first paragraph would require definition of, or assumptions about, the meanings of "traditionally connected", "physical, spiritual and religious association", "genealogical descent" and "processes of succession". These terms were characterised as vague, generalised and undefined. The application of the criteria set out in the first paragraph was said not to provide any objective description that would enable reliable identification of persons in the native title claim group.
The application – native title rights and interests claimed
19 Schedule E of the application set out a description of the native title rights and interests asserted by the appellants. These were in the following terms:
The rights and interests claimed in relation toThe native title rights and interests claimed are the right to possession, occupation, use and enjoyment of the claim area as against the whole world, pursuant to the traditional laws and customs of the claim group but subject to the valid laws of the Commonwealth of Australia and the State of Queensland. 2) All remaining land and waters within the claim area the Native Title rights and interests claimed are not to the exclusion of all others and are the rights to use and enjoy the claim area in accordance with the traditional laws acknowledged and customs observed by the Gudjala for the purposes of: . accessing land and waters; . entering and remaining on the land being claimed; . hunting; . fishing;1) Land and waters where there has been no prior extinguishment of Native Title or where section 238 (the non-extinguishment principle) applies:
The application does not include a claim for exclusive possession over previous non- exclusive possession act areas as defined under section 23F of the Native Title Act 1993 save where the Native Title Act 1993 and/or the common law allows such a claim to the [sic] be part of the a Native Title Determination application. [sic]. gathering and using the products of the claim area such food, medicinal plants, timber, bark, ochres and earths, stone and resin, minerals, and using natural water resources of the area;. camping and erecting shelters;
. engaging in cultural activities;
. conducting ceremonies and holding meetings;
. teaching the physical and spiritual attributes of locations and sites;
. participating in cultural practices relating to births, marriages and deaths on the claim area; and
. making decisions, pursuant to Aboriginal law and custom about the use and enjoyment of the land by Aboriginal people.
The application – asserted factual basis for native title rights and interests claimed
20 Schedule F to the application set out a number of factual assertions and incorporated a report prepared by an anthropologist, Rod Hagen, and an affidavit sworn by William Charles Santo, a member of the Gudjala native title claim group.
21 The appellants recited in Schedule F assertions of their association with the claimed area, the existence of traditional laws and customs giving rise to the claimed native title rights and interests and the fact that they continued to hold their native title in accordance with those traditional laws and customs. They then stated:
The native title rights and interests claimed are those possessed under the traditional laws and customs of the Gudjala People which together form part of a body of customary law that is part of a broader system of Aboriginal culture. The broader system is a comprehensive body of law covering cultural values, norms of social behaviour and principles that comprise the land law component of that body of law that govern the landed interests of the claim group. The acquisition of land interests is by descent from ancestors and derived from fundamental rights of possession and ownership of land.22 There followed what were called "Examples of facts giving rise to the assertion of native title ...". These, which were expressed non-exhaustively were:
(i) members of the claim group continue to have a close association, including a spiritual connection with the claim area according to their traditional laws and customs;
(ii) members of the claim group continue to pass on to their descendants the body of traditional laws and customs rights to conduct activities under those traditional laws and customs stories and beliefs concerning their traditional country including the claim area;
(iii) members of the claim group continue to use the claim area for traditional hunting and fishing and for the gathering of traditional bush medicines and other materials;
(iv) members of the claim group continue to care for their traditional country, including the claim area, in accordance with traditional laws and customs passed down to them by their forebears and predecessors;
(v) members of the claim group continue to exercise a body of traditional laws and customs which has been passed down to them from generation to generation by their forbears and predecessors. Such traditions and customs include traditional laws and customs which deal with caring for country, controlling access to country by members of the native title claim group, the holding of ceremonies on traditional country and the use of traditional country.
23 The application included a number of standard form verifying affidavits sworn by David Allie, Roe Hero, William Santo, Gavin Allingham, Allan Huen and Gloria Santo. Each of the affidavits stated, inter alia, that the deponent believed that all of the statements made in the application were true. Each appears to have been sworn on 24 January 2006.
The application – asserted factual basis – the Hagen Report
24 Rod Hagen described himself in his report as an anthropologist engaged by the Central Queensland Land Council Aboriginal Corporation to provide advice on matters relating to indigenous interests in land in Central North Queensland. He has worked intermittently with members of the Gudjala group since June 2000 and on similar matters with other indigenous groups in the Northern Territory, South Australia, Victoria, New South Wales and Queensland since October 1975. He was asked to comment on the factual basis for the asserted native title rights and interests in the application. He said that he had the opportunity in the course of his work in the region to review a wide range of materials relating to the area. He also had the opportunity to speak with indigenous members of the native title claim group and with many others in the general vicinity.
25 Mr Hagen began by referring to what he called "the Gudjala families". He first referred to the Santo and Boyd families which he said traced their ancestors from Maggie Thompson also known as Maggie Ton-Ton. Available information identified her with the claim area and most closely with "Bluff Downs" and the nearby "Great Basalt Walls" in the heart of Gudjala country to the west-north-west of Charters Towers. Evidence suggested she was born around 1860. Many members of the Santo and Boyd families continue to live in the vicinity of Charters Towers. Documentary and oral historical material make it clear that the family has maintained a presence in the claim area at all times since non-indigenous occupation. The available evidence was said to provide "strong support" for the view that they were descendants of the Gudjala people with traditional interests including the Charters Towers area.
26 The Reid and Masso families were said to trace their Gudjala ancestry to "Topsy Hann" who was identified with the Maryvale/Bluff Downs/Sandy Creek area to the north of the Great Basalt Walls. Persons on the Reid side of the group might also possess connections with the area through "Kitty Anderson", the mother of "George Reid Jnr" who was a partner of Topsy Hann’s daughter. Kitty Anderson also appeared to have come from the Bluff Downs/Maryvale area. The Masso family also traced its descent through Sadie Jerry and a different partner, Charlie Johnson. The evidence located the known Gudjala ancestors of these families in the general vicinity of the Great Basalt Walls/Bluff Downs/Maryvale area to the west-north-west of Charters Towers. Topsy Hann’s birth date was said to be around 1855 to 1860. Members of the families descended from Topsy Hann continued to live in Charters Towers and play a significant role in the affairs of the indigenous community.
27 The Huen family traced its Gudjala ancestry from a woman named Alice Bluff or Alice Anning, also of Bluff Downs. Bluff Downs is on the Basalt River just to the north of the Great Basalt Walls in Gudjala country. Alice Bluff is said to have gone by a variety of surnames including Huen, Ewen, White, Anning, Rutter and Robertson or Robinson. Her suggested birth date was in the 1860s or 1870s.
28 The Huen-Kerrs were said also to be descended from Cissy McGregor who was born at St Pauls pastoral station in about 1880. Members of the family continue to live in Charters Towers and also play a prominent role in the affairs of the indigenous community of the area. Mr Hagen said that documentary and oral historical evidence indicated an unbroken chain of association with the claim area.
29 By way of summary Mr Hagen said:
The available materials support the identification of the current claimants and applicants as members of the Gudjala group, on the basis of their descent from Alice Huen, Sissy [sic] McGregor, Maggie Thompson, and Topsy Hann. Contemporary members of the group continue to maintain an association with the Gudjala area, as did their ancestral predecessors. This presence includes maintenance of an unbroken chain of occupation of the overall claim area.30 Mr Hagen then discussed what he called "Ethnographic and Anthropological Interpretations of Indigenous Society in the Area". He said that documentary support for Gudjala interests in the current claim area could be found in the work of a number of authors that he specified. The evidence of senior Gudjala men and those of other neighbouring groups in the 19th and early 20th centuries clearly located the Gudjala in the Charters Towers area. He said that on the basis of available material it could reasonably be concluded that, in accordance with contemporary and earlier indigenous views and the views of non-indigenous commentators, the lands subject to the present claim traditionally belonged to the Gudjala.
31 Mr Hagen referred to the traditional laws and customs of the predecessors of the native title claim group. He quoted Edward Palmer who wrote in 1883 about indigenous connections to land in north west Queensland:
The tribal territories, or tribal boundaries, though not very cleared defined, were sufficiently well known to form landmarks for them to observe when getting into neutral or debateable ground ... These aborigines have no idea when they commenced ownership or when they first entered on their territory. All they can say is that their fathers were there before they were, and others before them, back to times out of reach; they had been there always, and had had that country for use. From the old ideas connected with their rights of hunting over territory, each tribe must have remained in possession for countless generations of its particular locality.32 Underlying principles of "law" identified by Mr Hagen arising out of Palmer’s text were:
1. A concept of priority and antiquity – namely people possessing their territories because they have always done so.
2. A principle of the passage of such interests through descent/filiation.
3. A principle of territoriality.
4. A concept of "shared interest" or "neutrality" at boundaries between the groups.
33 Mr Hagen referred to WE Roth who spoke of the "general government of the community" lying in the hands of "an assembly of elders". He also went on to say that the very composition of the assembly of elders gave it strength and enabled it to put its wishes into execution. Older women had an important say in many matters. He saw this as an indication of a body responsible for decision making, not only with respect to internal matters, but also in the dealings of the tribe with the outside world.
34 In his discussion of law and customs underpinning current interests in the land, Mr Hagen said that members of the families mentioned demonstrated the existence of a number of contemporary laws when asked about land issues and speaking among themselves about such things. These, he said, are clearly important and generally held both among them and among the indigenous population generally in the region. They are applied by members of all the families identified above when dealing with the traditional Gudjala land.
35 Within the local indigenous system today ancestry provides the primary overtly expressed rule for recognition of membership of land related groups. This usually involves establishing, to the satisfaction of senior members of the community, that one’s earliest known ancestor was from the area. Most families currently would speak of a particular ancestor or ancestors identified in the area in the early days of occupation. Some people refer on occasion to their own parents or grandparents in explaining their relationship to an area. The linearity or otherwise of relationships to an ancestor is not seen as relevant within the indigenous framework today.
36 Lifetime associations are seen to be important, but secondary to recognised ancestry. Knowledge of particular areas derived through prolonged association with the area or knowledgeable older community members can enhance claims made on other bases. People also spoke of the practical fulfilment of responsibilities towards the land as evidence of their connection. Actions perceived as damaging traditional interests, either by causing damage to the land or diminishing the political or legal status of the broad group are likely to result in the application of negative sanctions such as social disapproval or prevention of attendance at meetings.
37 The establishment of ancestral connection with an area to the satisfaction of the community is of principal importance. Those who now live in other areas but possess an ancestral connection are recognised by the community, while those who are seen as having arrived only in "historical" times are generally not.
38 Official documentary materials dealing with ancestry do not necessarily have primacy under indigenous law. In a dispute people are likely to rely upon a wide range of evidence including oral, historical and documentary material. Within the indigenous system people continued to strongly assert that they possess a collective and personal right to the land and its resources. In "border" situations where different groups came into contact, an incorporative approach in which the views of both parties are regarded as necessary has to be adopted.
39 According to Mr Hagen contemporary community members see indigenous rights as ultimately underpinned by both spiritual or religious factors and by rights of prior possession. Seniority, ability and closeness of connection play important roles in determining status within any decision making group.
40 The framework of the law thus set out is said to provide a basis upon which it is possible for indigenous people in the area to determine who belongs where, who has the right to make decisions concerning land related matters and who has a right to receive benefits flowing from activities on the land. It provides a mechanism within which groups regularly made decisions concerning their relationship with the "outside world", whether that involved relationships with other indigenous groups or the broader local Australian community.
41 Mr Hagen concluded that the indigenous community associated with the Gudjala area has not abandoned the legal principles on which its system of land tenure was based and continues today to be guided by laws and customs which have their origins in pre-contact time.
42 Mr Hagen said that members of the native title claim group today carry on a variety of activities relating to land in the Charters Towers area. They deal regularly with issues connected with their welfare and interests collectively and mainly relating to the external affairs of the group. These can involve matters relating to development activity, the use of land for community purposes, heritage issues, dealings with government and the education and traditional matters of younger members. The Gudjala families are extremely active in pursuing such matters. Meetings dealing with them are frequent, usually very well attended and involve extensive debate. Members of the community also make use of the resources of the claim area, both fishing and collecting bush foods and other materials in the area generally and have always done so. Members of the community continue to reside in the general area at Charters Towers.
43 Mr Hagen said that members of the community actively seek to have traditional heritage sites within the area protected from damage. They want a direct role and involvement to minimise the impact of any activity likely to cause damage or otherwise to interfere with such places.
44 By way of conclusion, Mr Hagen made the following statements:
1) The native title claim group have, and the predecessors of those persons had, an association with the area. The areas concerned are traditionally associated with the Gudjala peoples. The current claimants are members of this group by descent. Members of the group continue to reside within their traditional lands and to pursue other land based activity upon them.
2) The native title claim group continues to acknowledge and observe traditional laws and customs pertaining to land in the area. Discussion of such laws and customs in the early literature pertaining to the area, and my own observations of their activity today, indicates a high degree of congruence between underlying legal principles followed then and now.
3) The native title claim group’s ongoing observance of traditional laws and customs is consistent with the maintenance of traditional rights and interests in the land subject to the claim.
The application – asserted factual basis – the principal Santo affidavit
45 William Charles Santo swore an affidavit on 24 January 2006 which was relied upon in Schedule F of the application as providing part of the factual basis for the native title rights and interests claimed. This was in addition to his standard form verifying affidavit.
46 Mr Santo is a grandson of Maggie Thompson who he said was born in the mid 1800s at Lolworth Range in the claim area. He was told by an elder cousin, Eva Kennedy, and by his uncle, Bill Santo, and his aunt, Eva Lee, that his grandmother’s tribe was from the Lolworth Range and were massacred in the 1860s for killing two shepherds. His grandmother had escaped into the Basalt and then went on to Bluff Downs Station where she was taken in by the wife of the station owner. Her four children were all born at Bluff Downs Station.
47 Mr Santo said his grandfather on his father’s side, Willie Santo, was one of Maggie Thompson’s four children. I note that this would make her his great grandmother rather than his grandmother. His grandfather was born in 1882 and worked as a stockman/gardener on Bluff Downs and later moved to Tomba Station. He lived all his life in the claim area and died at Charters Towers in 1963. Mr Santo’s father, Allan Santo, was born in 1930 in Charters Towers and lived there until his removal to Palm Island in 1953. There he met Mr Santo’s mother and their first child, Lillian, was born. His father returned to Charters Towers with the family in the late 1950s. He did so, inter alia, and most importantly, because he was comfortable in his own country.
48 Mr Santo’s father worked as a stockman on station properties in the claim area. He knew his father was already fighting for country and land rights by the late 1970s. He died in 1990.
49 Mr Santo was born in Charters Towers in 1967 and has lived there all his life. As a child he used to spend a lot of time with his aunt, Quinny Santo Masso (his father’s sister) because his father was working at the stations. They would often camp at places like Lincoln Springs, Gainswood Station and Full Stop Station. He remembered that when his aunt took him to Red Falls near Gainsford in the claim area she would sing out to the spirits to tell them they were coming in and make it safer for them to wander around. She was very strict about the children not doing anything wrong to disturb the spirits. Throwing rocks into the water at night was seen as disrespectful.
50 Mr Santo said they used to do a lot of fishing at Red Falls. His aunt showed him how to stun fish using a particular plant. Some of the fish had to be left as an offering to the uranji. She also taught him how to find mussels in the Burdekin River. She told him which plants were edible.
51 Mr Santo said he learnt how to find porcupines by following their tracks in the dirt. He was taught to burn the spikes and flick them off with a knife and bury the body in the hot coals to cook it. He was taught these things by the old men in the community. Another Gudjala, Lilly Smith, whom he called Granny Kerr, would collect him with his cousins. She would teach them how to catch and cook freshwater long neck turtles. Her son would take them fishing.
52 A Gudjala elder, Dickie Davis, would show Mr Santo the bora rings of the corroboree ground at Lincoln Spring. He said he and others were frightened to step in it. They would walk around it. Mr Santo said that when he goes out fishing and camping on his own country he feels welcome and knows he belongs there. He feels he is protected there. He feels this way anywhere in the claim area. However, if he goes beyond his country he does not feel comfortable about camping out. The Gudjala elders would speak in their language at all times when he was a child. They would sit down and explain the past including massacres that had occurred.
53 Mr Santo has compiled a Gudjala dictionary. He has also written books for children in Gudjala language. He has taken his nephews and other Gudjala children to Red Falls and has shown them the old grave sites. He has taken them fishing and shown them how to fish with a spear.
Application – factual basis for native title rights and interests and traditional physical connection – McLean affidavit
54 Schedule M to the application contained the assertion that:
Members of the Native Title Claim Group currently have a traditional physical connection with the claim area. For example, members have used the land and water covered by the application to reside, to hunt and to enter and travel across.Reference was then made to Schedule F and also to the affidavit of Stella McLean sworn on 25 January 2006 which appeared as Attachment M to the application.
55 By her affidavit sworn on 25 January 2006 Ms McLean, who resides at Charters Towers, described herself as a member of the Gudjala Native Title Claim Group. She was born at Maryvale Station within the claim area in 1931. Her maiden name was Masso. Her mother, Stella Johnson, was born at Maryvale Station in about 1903 and died in Charters Towers. Her grandmother, Sadie Jerry, was also born at Maryvale Station in the 1880s and died in Charters Towers. Sadie’s mother was Topsy Hann who was a young girl when Maryvale was set up and who worked on the station. She had tried to escape to join her people in the bush but was found and brought back. Ms McLean said she had lived all her life on stations in or near the claim area. Her mother, grandmother and great grandmother had done the same. Her grandchildren live in Charters Towers today. There have always been members of the family living on the claim area from before white people starting settling there up to the present day.
56 According to Ms McLean, as a senior woman in the Gudjala community, she helps to teach younger people about their ancestors, laws and customs and life in the earlier days. She helps to look after the young ones and makes sure that they grow up understanding about their own culture and family. When matters affecting her Gudjala community occur she expects to be consulted along with other senior community members about the problem. These may include anything to do with the community including new developments on their traditional lands and important places which may be in danger. She also expects to be consulted about agreements with government and private developers, education and study projects.
The delegate’s reasons for decision – factual basis for native title rights and interests (s 190B(5))
57 The delegate found that the application did not disclose a factual basis for the claim to native title: see s 190B(5). He was not satisfied that the information in the application was sufficient to support either the assertion that the claimed native title rights and interests existed or the following assertions:
. that the native title claim group and their predecessors had an association with the area;
. that there existed traditional laws acknowledged by, and traditional customs observed by, the native title claim group that gave rise to the claim to native title rights and interests; and
. that the native title claim group had continued to hold the native
title in accordance with those traditional laws and customs.
On the question
of association, the delegate said he was unable to determine the basis for
membership of the group. He observed that
he was not limited by the statements
in the application and that regard could also be had to other relevant
information. He referred
to the decision of the High Court in Members of the
Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422. He adopted
the following description of the task in Northern Territory v Doepel
[2003] FCA 1384; (2003) 133 FCR 112 (at [17]):
58 The delegate referred to information provided by the appellants which included a report by an anthropologist, Rod Hagen, and affidavits by three of the appellants: two by Mr Santo and one by Ms McLean. He also referred to affidavits and documents filed with or provided in relation to associated claims. He held, however, that such affidavits and documents were of little direct relevance as the anthropological reports were written in 1999 and prior to the major decisions in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 and Yorta Yorta [2002] HCA 58; 214 CLR 422, and that some sections were not responsive to issues raised by the later development of native title law.
59 The delegate was not satisfied that the members of the native title claim group and their predecessors had an association with the area. He was unable to determine the basis for the membership of the group and thus who its members might be. The second part of the description of the native title claim group used in the application drew no distinction between male and female descendants. All descendants were said to be members. However the claim was not supported by some of the material. The delegate referred to an affidavit by Mr Santo about his membership of the group and said that his statements seemed to be consistent with the claim group description being more than purely descent defined. The membership of the group appeared to the delegate to be more complex and mediated than suggested by the verbal formula "all the descendants of ...".
60 The delegate accepted that the material provided supported an assertion that Anning, Thomson and Hann were associated with the claim area. There was, however, no reliable information from which he could reasonably draw inferences concerning Cissy MacGregor. The delegate said (at 28):
Because of the vagueness of the first paragraph of the description in schedule A, and the subjective aspects of membership revealed, it is not possible to know how large the membership of the group is nor who they are and thus I am not able to be satisfied that there is a factual basis for the assertion that such members have and their predecessors had an association with the area claimed.The delegate did not deny that some members of the claim group maintained an association. However, a sufficient factual basis from which reasonable inferences could be drawn as to the whole group had not been provided.
61 The delegate considered whether there was a sufficient factual basis upon which it could be asserted that there existed traditional laws and customs acknowledged and observed by the native title claim group and giving rise to native title rights and interests. He referred to the High Court’s reasoning in Yorta Yorta [2002] HCA 58; 214 CLR 422 and the requirements the High Court set out for determination of the continuity of traditional law and custom. He said (at 30):
Bearing these strictures in mind I am unable to find a sufficient factual base for the assertion that there exist traditional laws and customs and I will now consider why.62 The delegate held that there was virtually no factual base provided from which the existence of a normative society at the time of sovereignty could be inferred. There was no material that would constitute a sufficient factual basis to suggest that the four apical ancestors named in Schedule A to the application could be said to have constituted a society. It appeared to be a corollary of those findings that there was no sufficient factual basis for the assertion that the claim group had continued to hold native title in accordance with traditional law and custom.
The delegate’s reasons for decision – prima facie native title rights and interests (s 190B(6))
63 In addressing the condition for registration set out in s 190B(6), the delegate drew on the conclusions he had made in his consideration of s 190B(5). He concluded that the application did not establish a sufficient factual base for the assertion of traditional law and customs and that therefore he could not be satisfied, under s 190B(6), that there were rights and interests linked to them.
The delegate’s reasons for decision – traditional physical connection
64 The delegate interpreted the phrase "traditional physical connection" to mean that physical connection should accord with the particular traditional laws and customs relevant to the claim group. The word "traditional" was to be understood as defined in Yorta Yorta [2002] HCA 58; 214 CLR 422. It was therefore necessary to show that the connection accorded with the laws and customs of the group that had there origins in pre-contact society.
The primary judge’s reasons for decision
65 The appellants sought review of the delegate’s decision pursuant to s 190D(2) of the NTA. The contentions raised before the primary judge were as follows:
1. The [appellants were] misled by documents and information received from the [NT Registrar and delegate] and acted in reliance on those documents to its detriment.
2. The information and other material available to the [NT Registrar and delegate] did not justify the application failing the registration test.
3. The [NT Registrar and delegate] took into account irrelevant material.
4. The [NT Registrar and delegate] failed to take into account relevant material.
5. The decision involved an error of law.
Late in the piece the appellants also alleged that they had been deprived of procedural fairness in the decision making process.
66 The learned primary judge disagreed with the delegate as to the sufficiency of the description of the claim group. He adopted the approach that it was a matter for him to consider, upon the review, whether the delegate should have been satisfied as to compliance with s 190B(3). His Honour said (at [33]):
The better view is that the identification of the claim group as the descendants of the apical ancestors is the asserted outcome of the correct application of traditional laws and customs observed by the Gudjala People, although those laws and customs are not identified. It is curious that laws and customs concerning physical, spiritual and religious association, genealogical descent and processes of succession should lead to the outcome that the only people who have ‘communal native title’ in the area are the descendants of four apical ancestors. One would have thought it more likely than not that some such descendants, although satisfying the laws relating to genealogical descent, would fail in connection with physical, spiritual and religious association and/or processes of succession. As the laws and customs in question are not identified, this curiosity cannot be resolved. However subs 190B(3) requires only that the members of the claim group be identified, not that there be a cogent explanation of the basis upon which they qualify for such identification.67 His Honour held that the preferable construction of the description of the claim group in Schedule A was that all its members were descendants of the four apical ancestors. He accepted its membership was said to be based upon law and custom, although details were not given. He concluded that the description sufficiently identified the members of the claim group by reference to apical ancestors.
68 In considering whether there was a factual basis for the claimed native title, his Honour said that s 190B(5) required that the delegate be satisfied that there was an alleged factual basis sufficient to support the assertion that the claim group was entitled to the claimed native title rights and interests. That is to say it was necessary that the alleged facts supported the claim that the identified claim group (and not another) held the identified rights and interests (and not some other rights and interests). His Honour then considered the claim against each of the three headings in s 190B(5).
69 In relation to the requirement of "association with the area", his Honour said that there "must be evidence that there is an association between the whole group and the area". Moreover there must be evidence of such an association between the predecessors of the whole group and the area over the period since sovereignty. He found that the evidence of Ms McLean and Mr Santo did not go so far. Mr Hagen’s evidence provided opinions and conclusions rather than any alleged factual basis for those opinions and conclusions or for the claim.
70 The delegate had accepted that three of the four apical ancestors had an association with the claim area and that they were in that area when the first European settlors arrived. He had found no reliable information from which he could infer that Cissy McGregor or her descendants had any association with the claim area. Descent from Ms McGregor had no relevance as the Huen-Kerrs were also allegedly descended from Alice Anning. Ms McGregor’s inclusion as an apical ancestor served no purpose if that were so. It neither extended nor limited the claim group. His Honour held that the application did not demonstrate the relevant association.
71 His Honour then considered whether there was a factual basis sufficient to support the assertion that there existed traditional laws and customs acknowledged and observed by the claim group whose laws and customs gave rise to the native title rights and interests claimed. He adverted to the requirement arising out of the decision of the High Court in Yorta Yorta [2002] HCA 58; 214 CLR 422 that traditional laws and customs must, in order to answer that description, have their source in a pre-sovereignty society and have been observed since that time by a continuing society. He accepted that this did not require that the apical ancestors themselves comprised a society.
72 His Honour referred to the delegate’s conclusion that effective sovereignty occurred at about 1850-1860. He took that conclusion to mean that European occupation had occurred at about that time. He defined the task before him as identification of the existence in 1850-1860 of a society of people living according to identifiable laws and customs having a normative content. Such laws and customs must establish normal standards of conduct or perhaps be prescriptive of such standards. His Honour accepted the appellants’ submission that it was not necessary to show that the apical ancestors were members of the society and were used only to define the claim group. But a link would have to be identified between the apical ancestors and any society existing at sovereignty even if it arose at a later stage.
73 His Honour then turned to evidence concerning the apical ancestors. Ms McLean associated Topsy Hann with Maryvale Station. Mr Hagen also identified her with Bluff Downs and Sandy Creek, north of the Great Basalt Wall. Mr Santo associated Maggie Thomson with Lolworth Range. She had gone to Bluff Downs after European settlement. Mr Hagen also identified her with the Great Basalt Wall. He identified Alice Anning with Bluff Downs but offered no factual basis for that opinion. His Honour could see no evidence of any known connection between the three apical ancestors, save for their presence in a relatively large area. None of them lived in isolation, each had parents and, apparently, children. It might be inferred they had siblings and other members of extended families. Ms Hann and Ms Thompson apparently lived on stations. There was no evidence of the relationship between station owners and indigenous employees on the one hand and any pre-existing indigenous society on the other. There was no factual basis for inferring that there was a society defined by its acknowledgement and observation of laws and customs.
74 His Honour found only scant evidence of contact in modern times amongst the family groups identified by Mr Hagen. He concluded (at [70]):
On the material presently available, I find no factual basis supportive of an inference that there was, in 1850-1860, an indigenous society in the area, observing identifiable laws and customs.75 It was not necessary for his Honour to go further for the purposes of s 190B(5) but he went on to comment on the evidence concerning the broader question whether there are now traditional laws and customs acknowledged and observed by the claim group that had their origins at or before European occupation. Again, he found the evidence to be scant. He referred to the evidence of Ms McLean and Mr Santo. He acknowledged that a certain amount of Mr Santo’s evidence might be said to describe laws and customs of a normative character. However, although some of it asserted rights and interests in land, none of it identified traditional laws and customs derived from a pre-sovereignty society supporting or justifying the claim group’s claims. It was impossible to understand why descendants of the identified apical ancestors had rights and interests in the land whereas others did not. His Honour could see no clear basis for Mr Hagen’s opinion that it could reasonably be concluded that the claim area belonged to the Gudjala people.
76 His Honour referred to Mr Hagen’s assertion that when speaking amongst themselves, members of the various families demonstrated the existence of contemporary laws that were important and generally observed. Mr Hagen expressed the view that ancestry provided the primary overtly expressed rule for the recognition of membership of land-related groups and concluded:
The indigenous community associated with the Gudjala area have clearly not abandoned the legal principles on which their system of land tenure is based and continue to today to be guided by laws and customs which have their origin in pre-contact time.His Honour again observed that Mr Hagen offered no real basis for that inference. While he might have described the society having apparently traditional laws and customs, there was no basis for inferring that they originated in any pre-sovereignty society. Some or all of the traditional laws and customs may have been handed down through two or more generations but it was impossible to say any more than that. His Honour said (at [81]):
The real deficiencies in the Application are twofold. Firstly, it fails to explain how, by reference to traditional law and customs presently acknowledged and observed, the claim group is limited to descendants of the identified apical ancestors. Secondly, no basis is shown for inferring that there was, at and prior to 1850-1860, a society which had a system of laws and customs from which relevant existing laws and customs were derived and traditionally passed on to the existing claim group.77 His Honour next considered the requirement under s 190B(5) that there be a factual basis supporting the assertion that the native title claim group had continued to hold native title in accordance with traditional laws and customs. In this respect, the problem with the application lay in the inability of the appellants to demonstrate the existence, at the time of sovereignty, of a society observing laws and customs from which current traditional laws and customs were derived. That difficulty led the delegate to conclude that the requirement had not been satisfied. His Honour agreed.
78 His Honour also concluded that it followed from his previous reasons that the requirements of s 190B(6) had not been satisfied.
79 His Honour discussed the requirement of traditional physical connection imposed by s 190B(7). He accepted, as consistent with the approach taken in Yorta Yorta [2002] HCA 58; 214 CLR 422, the delegate’s reasoning that the reference to "traditional physical connection" should be taken as denoting, by use of the word "traditional", that the relevant connection was in accordance with laws and customs of the group having their origin in pre-contact society. He said (at [89]):
As I can see no basis for inferring that there was a society of the relevant kind, having a normative system of laws and customs, as at the date of European settlement, the Application does not satisfy the requirements of subs 190B(7).His Honour dismissed the application for review of the delegate’s decision.
Grounds of appeal
80 The grounds of appeal are as follows:
In relation to sections 190B(5), (6) and (7) of the Native Title Act 1993 (Cth) (‘NTA’):1. His Honour failed to find that the factual assertions in the materials provided to the delegate, including and in particular the material summarised by his Honour at reasons for decision paragraphs [44 to 45], [47 to 50], [52], [70 to 80], if proven, would be sufficient for a Court to draw such inferences as would be necessary for it to find that:
(i) practiced and observed by some members of the claim group’s "predecessors", including predecessors living at the time of sovereignty; (ii) practiced and observed by members of a "society" both at the time of sovereignty and since then to the present time; (iii) amongst those that were held by, and defined, a society which existed at the time of sovereignty and has continued to exist to the present time; (iv) rules and customs pursuant to which native title rights were held in the claim area at the time of sovereignty and subsequently to the present time; (v) rules and customs pursuant to which one or more of the native title rights and interests identified in the Application can be established;(a) the rules and customs, including those identified in the Application at Schedule E and in the reasons for decision at paras [70 to 80] were:
(b) the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion as required by s 190B(5) NTA;
(c) the native title claim group have, and the predecessors of those persons had, an association with the areas as required by s 190B(5)(a) NTA;
(d) 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 as required by s 190B(5)(b) NTA;
(e) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs as required by s 190B(5)(c) NTA;
(f) prima facie, at least some of the native title rights and interests claimed in the Application can be established as required by s 190B(6) NTA; and
(g) at least one member of the native title claim group currently has or previously had a traditional physical connection with part of the land or waters covered by the Application as required by s 190B(7) NTA; and
(h) thus, the Registrar through his delegate erred in not being satisfied of the matters referred to in ss 190B(5), (6) and (7) NTA.
2. His Honour applied the wrong tests in relation to the requirements of s 190B(5) NTA in that he:
(a) imposed a burden of proof not required or intended by s 190B(5);
(i) regarding the society under whose laws and customs native title rights and interests were held in the claim area – paras [68], [70]; (ii) regarding the existence and content of laws and customs pursuant to which native title rights and interests were held by predecessors of the native title claim group; (iii) regarding the existence and nature of the association which the claim group and their predecessors had with the claim area – paras [51], [52], [66]; (iv) to the effect that the apical ancestors named in the Application (perhaps together with others who may have died without leaving known descendants) and their predecessors were the native title holders at the time of European settlement – para [68]; (v) that at all material times there was an identifiable group of people, probably known as Gudjala People, who held the native title rights and interest in certain land and waters, probably known as "Gudjala country", in land and waters which includes the claim area, pursuant to traditional laws and customs applicable to them – paras [72] to [80]; (vi) regarding the reasons, if relevant, as to why only 4 apical ancestors have been identified in the Application and why the claim group is limited to their descendants – paras [68] and [81].(b) required that the factual basis on which it is asserted that the native title rights and interests claimed exist must "lead to" certain conclusions, as distinct form must be "sufficient to support" the assertions identified in s 190B(5) – para [51];
(c) disregarded various assertions by anthropologist Mr Hagan [sic] for the reason that they comprised opinions and conclusions rather than, or without demonstrating, an alleged factual basis for such opinions and conclusions – paras [52], [67], [68], [79], [80], [81];
(d) failed to have regard to the fact that a Court can and will often need to draw inferences, without there being hard evidence, particularly in relation to facts and circumstances at about and prior to European settlement, including inferences:
3. His Honour erred in his consideration of ss 190B(6) and (7) NTA because of the errors, made in relation to his consideration of s 190B(5) NTA.
81 The appellants seek the following orders:
1. The decision of the Federal Court in Gudjala People #2 v Native Title Registrar [2007] FCA 1167 given on 7 August 2007 at Brisbane in the State of Queensland be set aside;
2. The First Respondent accept the native title claimant application QUD 147/06 for registration on the Register of Native Title Claims;
3. The First Respondent include details of the claim in the Register of Native Title Claims effective from 1 November 2006.
The Registrar’s function in deciding upon registration
82 The Registrar’s general functions under s 190A and the following provisions were considered at some length by Mansfield J in Doepel [2003] FCA 1384; 133 FCR 112. In respect of s 190B his Honour said (at [16]):
Section 190B also has requirements which do not appear to go beyond consideration of the terms of the application: s 190B(2), (3) and (4). Section 190B(5), (6) and (7) however clearly calls for consideration of material which may go beyond the terms of the application, and for that purpose the information sources specified in s 190A(3) may be relevant. Even so, it is noteworthy that s 190B(6) requires the Registrar to consider whether "prima facie" some at least of the native title rights and interests claimed in the application can be established. By clear inference, the claim may be accepted for registration even if only some of the native title rights and interests claimed get over the prima facie proof hurdle. Indeed it may be that the Registrar, upon being satisfied that some of the native title rights and interests claimed can, prima facie, be established, might not apply that evidentiary test to each of the claimed native title rights and interests.83 His Honour went on to discuss the requirement that the Registrar consider whether the factual basis upon which it is asserted that the claimed native title rights and interests exist is sufficient to support the assertion. His Honour said (at [17]) the words that we set out at [57] above, and which we find it convenient to repeat:
Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the "factual basis on which it is asserted" that the claimed native title rights and interests exist "is sufficient to support the assertion". That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts. (Emphasis added)We respectfully agree with and adopt that characterisation of the criterion set out in s 190B(5). See also Martin v Native Title Registrar [2001] FCA 16 at [22] (French J).
84 His Honour distinguished the task imposed on the Registrar by s 190B(5) from that imposed by s 190B(7). As his Honour pointed out, the latter subsection requires the Registrar to be satisfied of a particular fact or particular facts and therefore requires the presentation of evidentiary material. His Honour, however, qualified that observation (at [18]):
The focus is, however, a confined one. It is not the same focus as that of the court when it comes to hear and determine the application for determination of native title rights and interests. The focus is upon the relationship of at least one member of the native title claim group with some part of the claim area. It can be seen, as with s 190B(6), as requiring some measure of substantive (as distinct from procedural) qualify control upon the application if it is to be accepted for registration.85 The preceding cases sufficiently describe the law applicable to the function of the Registrar or his delegate in the present case and the principles which inform the Court’s approach to review of the Registrar’s or delegate’s decision.
The approach to review of the Registrar’s decision
86 The function undertaken by the learned primary judge was "a review of the Registrar’s decision not to accept the claim" pursuant to s 190D(2) of the NTA. The jurisdiction to entertain such a review was conferred by s 190D(3) as it stood then. Where registration has been refused only because of failure to satisfy the physical connection requirement in s 190B(7), then upon a successful review the Court may, under s 190D(4), order the Registrar to accept the claim for registration if it is satisfied of the matters set out in s 190D(4). There is, however, no other provision expressly setting out the orders which the Court can make upon a successful review application where registration has been refused on grounds not limited to failure to satisfy the physical connection test. It seems that the power of the Court to direct the Registrar to accept a claim that is not covered by s 190D(1A) and which the Registrar has refused to accept derives from s 23 of the Federal Court of Australia Act 1976 (Cth).
87 The Full Court of the Federal Court in Western Australia v Strickland [2000] FCA 652; (2000) 99 FCR 33 at [63] observed that an application for review under s 190D "has some similarity to an application for review of a decision made in a matter by an officer of the Court under power delegated by the Court". Although the Native Title Registrar does not exercise a delegated power in determining whether he or she should accept a claim for registration, the decision to accept or not accept a claim is the exercise of "administrative power in respect of a matter in which the Court has, and is then exercising, jurisdiction."
88 The Court observed that a review under s 190D is not restricted to consideration and determination of a question of law. Section 190D(4) was said to make it plain that the review extends to a determination of issues of fact. Their Honours said (at [66] – [68]):
It seems to us it was Parliament’s intention that the right of review created in s 190D(2) would place before the Court the controversy constituted by the issues of fact and law raised between the parties. Upon a ground of review being established, appropriate orders may be made to do justice between the parties. Such orders are made in the Court’s discretion in the exercise of the original jurisdiction of the Court ... The review may require redetermination of factual issues according to the material then available; it is not restricted to the material before the Registrar ... Accordingly, at the time of review the Court may take into account events that have occurred since the decision under review was made.89 In Wakaman People No 2 v Native Title Registrar [2006] FCA 1198; (2006) 155 FCR 107, Kiefel J applied the reasoning of the Full Court in Strickland [2000] FCA 652; 99 FCR 33 and characterised it thus (at [29]):
The legislation does not specify the nature or the extent of the Court’s review under s 190D(3) or impose any limitation upon the material that may be taken into account. Jurisdiction is conferred by s 190D(2) and (3) in the broadest of terms (at [64]). A review under s 190D is not restricted to considerations and determination of a question of law. Section 190D(4) makes it plain that the review extends to determinations of issues of fact. The NTA does not proceed upon the premise that determinations of fact in the relevant controversy have been settled by the administrative determination and that the only matter in respect of which jurisdiction is conferred upon the Court is any controversy on questions of law.Whether the learned primary judge erred in his approach
90 A convenient starting point, in considering the correctness of his Honour’s approach, is to consider the interaction between s 62 and s 190A in the terms they were in at the time the application was lodged. The former provision prescribes what an applicant must do to commence an application. The latter provision establishes a statutory regime under which the Registrar of the Tribunal assesses the application to determine whether it should be accepted. It is tolerably clear that what the assessment entails is informed by what is required of an applicant to commence an application. Indeed, there is no reason to doubt that this statutory scheme contemplates that it would be open to the Registrar to accept an application based on the application, including the accompanying affidavit, without having regard to other information of the type referred to in s 190A(3). Accordingly, the statutory scheme appears to proceed on the basis that the application and accompanying affidavit, if they, in combination, address fully and comprehensively all the matters specified in s 62, might provide sufficient information to enable the Registrar to be satisfied about all matters referred to in s 190B. This suggests that the quality and nature of the information necessary to satisfy the Registrar will be of the same general quality and nature as the information required to be included in the application and accompanying affidavit. Of course, if an applicant fails to fully and comprehensively furnish the information required by s 62 then there is a risk that the Registrar will not accept the claim although that risk is ameliorated by the power of the Registrar to consider information additional to that contained in the application, including documents (other than the application) provided by an applicant: see s 190A(3)(a).
91 What then is the nature and quality of the information required by s 62? In substance, s 62(1) requires that the accompanying affidavit must contain evidence that the applicant believes the claimed rights have not been extinguished, believes none of the claimed area is covered by an entry in the Register, believes all the statements made in the application are true and that the applicant is authorised to make the application. The application must contain the details specified in s 62(2) and may contain details of the matters referred to in s 62(1)(c). There is an obvious link between the requirement that the evidence of the applicant include a statement that the applicant believes that all the statements in the application are true and the requirement that the application contain the details specified in s 62(2) together with the identification of the details in that subsection.
92 Of central importance in this appeal are the details specified by s 62(2)(e), namely details which constitute a general description of the factual basis on which it is asserted that the native title rights and interests claimed existed and, in particular, the matters referred to in ss 62(2)(e) (i), (ii) and (iii). Those details are in aid of the description, with some particularity, required by s 62(2)(d) of the asserted native title rights and interests. The fact that the detail specified by s 62(2)(e) is described as "a general description of the factual basis" is an important indicator of the nature and quality of the information required by s 62. In other words, it is only necessary for an applicant to give a general description of the factual basis of the claim and to provide evidence in the affidavit that the applicant believes the statements in that general description are true. Of course the general description must be in sufficient detail to enable a genuine assessment of the application by the Registrar under s 190A and related sections, and be something more than assertions at a high level of generality. But what the applicant is not required to do is to provide anything more than a general description of the factual basis on which the application is based. In particular, the applicant is not required to provide evidence of the type which, if furnished in subsequent proceedings, would be required to prove all matters needed to make out the claim. The applicant is not required to provide evidence that proves directly or by inference the facts necessary to establish the claim.
93 Turning to the specifics of this case, we think there are observations of the primary judge in his reasons which suggest that his Honour approached the material before the Registrar on the basis that it should be evaluated as if it was evidence furnished in support of the claim. If, in truth, this was the approach his Honour adopted, then it involved error. But there is another problem with the approach taken by his Honour. It leads us to the conclusion that the appeal should be allowed. As noted earlier, his Honour was critical of, and in many respects did not accept, the opinions expressed by Mr Hagen. For example, his Honour said "Mr Hagan’s [sic] evidence provides opinions and conclusions rather than any alleged factual basis for such opinions and conclusions or for the claim" (at [52]).
94 Mr Hagen’s report of March 2005 contained much material which, if accepted as a recitation of facts, went a considerable way towards establishing the factual basis asserted by the applicant in relation to the various matters referred to in s 190B(5). The role of an anthropological report in native title proceedings was recently considered by a Full Court in Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84. The Full Court said in a lengthy but important passage (at [88] - [94]):
There are in our view three problems with the passages set out at [85] to [87] [in which the trial judge had, in effect, rejected the evidence of expert anthropologists because the factual assumptions on which opinions had been expressed were not otherwise proved]. The first is that assuming the basis rule has survived the Evidence Act 1995 (Cth) (as to which see [90] and [91]), its application to the material the subject of the passages set out at [85] and [86] should have led the primary judge to disallow it altogether, rather than to derive little assistance from it. That rule, as his Honour understood it, does not confer a discretion as to the treatment of that to which it applies. The second is that while the evidence that was put aside or accorded no weight may be irrelevant to the situations at sovereignty and the present, it is clearly relevant to whether the claimants have established the continued observance of their law and customs generation by generation between sovereignty and the present time. To take Professor Berndt as the example, his opinions about the position in 1970 are relevant to continued observance since sovereignty, though not to the positions at sovereignty or the present.The third problem is that the common law basis rule is not incorporated in s 79 of the Evidence Act: Neowarra v Western Australia (No 1) [2003] FCA 1399; (2003) 134 FCR 208 at [22] - [27] where the case law is collected and considered. See also Sampi v Western Australia [2005] FCA 777 at [799] (Sampi) and Jango v Northern Territory (No 4) 214 ALR 608 at [19].
At [37] - [38] of Neowarra (No 1) [2003] FCA 1399; 134 FCR 208 it was said:
(The full citations of the decisions in the above passage (other than Harrington-Smith) are Daniels v Western Australia [2000] FCA 858; (2000) 178 ALR 542; Quick v Stoland Pty Ltd (1998) 87 FCR 371; Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queensland [2000] FCA 1548; R v Welsh (1996) 90 A Crim R 364 and Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594). Section 60 of the Evidence Act (referred to in the first paragraph of the quoted passage) provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. Section 135 confers power to exclude evidence, and s 136 enables a court to limit the use to be made of evidence.Because any common law basis rule has not been imported into s 79, so that at the stage of admissibility there is no requirement that the facts upon which the expert’s opinion has been formed be supported by admissible evidence, the fact that an expert’s opinion is based in whole or in part on a "fact" supported by hearsay, is not a ground upon which the opinion must be rejected. In any event, an expert’s opinion that is based on "facts" supported by hearsay is prima facie admissible under s 60.
Subject to the application of ss 135 and 136, hearsay material on which an expert’s opinion is based will qualify for admission as relevant to the basis upon which the expert holds the opinion ("a purpose other than proof of the fact intended to be asserted by the representation"). If it qualifies, it can then be used as proof of the fact intended to be asserted. That is the view that has been taken in relation to expert evidence in Daniel, Quick v Stoland, Lardil and Harrington-Smith v Western Australia [2003] FCA 893; (2003) 130 FCR 424. See also Welsh v The Queen at 368 and Lee v The Queen at 604. The weight to be accorded to that evidence is a matter for the Court.
Before the Evidence Act it was well established that experts are entitled to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, as a basis for their opinions. In Borowski v Quayle [1966] VR 382 at 386 (Borowski) Gowans J, quoting Wigmore on Evidence (3rd ed,) Vol 2, pp 784-785, said that to reject expert opinion because some facts to which the witness testifies are known only upon the authority of others, "would be to ignore the accepted methods of professional work and to insist on finical and impossible standards". Experts may not only base their opinions on such sources, but may give evidence of fact which is based on them. They may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information, in the sense they rely for such data not on their own knowledge but on the knowledge of someone else. The weight to be accorded to such evidence is a matter for the court: see generally Borowski [1966] VR at 385-387; PQ v Australian Red Cross Society [1992] 1 VR 19 at 34-35; H v Schering Chemicals [1983] 1 WLR 143 at 148-149; Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 161-163 and Jango (No 4) 214 ALR 608 at [8].
There is nothing in the Evidence Act that displaces this body of law. The Australian Law Reform Commission, on whose report the Act was based, said:
See Interim Report No 26, Evidence (1985) Vol 1, para 685. It is also to be remembered, as Selway J pointed out in Gumana v Northern Territory [2005] FCA 50; (2005) 141 FCR 457 at [156], that expert evidence is not necessarily opinion evidence. In the case of anthropologists, it will often be direct evidence of the anthropologist’s observations and thus admissible in the ordinary course. See also R v Patents Appeal Tribunal; Ex parte Baldwin & Francis Ltd [1959] 1 KB 105 and Borowski [1966] VR at 385-386.Under existing law hearsay evidence that is admissible for a non-hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court’s assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non-hearsay purpose – eg to prove a prior consistent or inconsistent statement, or to prove the basis of the expert’s opinion – will be admissible also as evidence of the facts stated.
95 Judgment was delivered in Bodney [2008] FCAFC 63; 167 FCR 84 on 23 April 2008. The following day, Lindgren J delivered judgment in Alphapharm Pty Ltd v H Lundbeck A/S [2008] FCA 559 in which his Honour addressed an objection to the admissibility of expert evidence of an eminent psychiatrist of clinical studies and the results that had been reported in reputable journals but which the witness had not himself carried out. His Honour discussed, inter alia, Borowski v Quayle [1966] VR 382, s 60 of the Evidence Act 1995 (Cth) and the Australian Law Reform Commission’s reviews of the law of evidence referred to in the above passage. His Honour arrived at a conclusion that was in line with that which had been reached by the Full Court the preceding day in Bodney [2008] FCAFC 63; 167 FCR 84. Both cases were, of course, concerned with the admissibility of expert evidence in judicial proceedings. Mr Hagen’s report did not fall for consideration by reference to questions of admissibility that would arise on a trial of the application.
96 The general approach the primary Judge took in relation to the evidence of Mr Hagen affected his approach in assessing the matters required to be considered by s 190B(5). For example, his Honour said (at [70]) that on the material presently available he could find no factual basis supportive of an inference that there was, in 1850-1860, an indigenous society in the area, observing identifiable laws and customs. However Mr Hagen’s report, which formed part of the application (and in respect of which there were affidavits from members of the claim group saying the statements in the application were true), contained several statements which, together, would have provided material upon which a decision maker could be satisfied that there was, in 1850-1860, an indigenous society in the claim area observing identifiable laws and customs. It may be accepted that Mr Hagen’s report does not deal in direct and unequivocal terms with this question and others that s 190B requires must be addressed. But it is not true that his report provides no factual basis in the way described by his Honour. Had his Honour given appropriate weight to Mr Hagen’s report, that report together with other material could well have sustained a conclusion that the application should be accepted. We accept that in relation to some of the asserted native title rights and interests there was a dearth of material that such rights and interests had been and continue to be observed, but that would not have been fatal to the acceptance of the claim.
97 In our opinion the appeal should be allowed, and the orders of the trial judge set aside. While it would be open to us to consider the primary material ourselves and reach a view about whether the application should be allowed, the preferable course is to remit the matter to the primary judge to consider further the application in the light of these reasons for judgment, the material originally presented by the appellants and such other material as the appellants might wish to furnish.
98 His Honour was not engaged in a judicial review limited to error of law
or process. The nature of the review his Honour undertook
required a
consideration of the material before the Registrar and any other material which
might be placed before him. It would
not therefore be appropriate to remit the
matter directly back to the Registrar. This does not prevent his Honour, in the
exercise
of his discretion under s 23 of the Federal Court Act, from remitting
the matter to the Registrar with directions if he thinks it
appropriate.
Alternatively, his Honour may decide to direct the Registrar to register the
claim. Alternatively, his Honour might
come to the conclusion, on all of the
materials that were before him or are to be before him, that the claim should
not be accepted
and so dismiss the review application.
Associate:
Dated: 27
August 2008
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Solicitor for the Appellant:
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Central Queensland Land Council Aboriginal Corporation
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Counsel for the Intervenor:
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Ms H Bowskill
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Solicitor for the Intervenor:
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Australian Government Solicitor
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/157.html