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Australian Indigenous Law Reporter |
National Native Title Tribunal (French J, President)
12, 15 September 1994,
Perth
Aborigines and Torres Strait Islanders -- Native title -- Application for native title determination -- Application not accepted by Registrar -- Whether prima facie a claim can be made out -- Whether evidence requested to support application -- Reference of application to presidential member -- Opportunity to show a prima facie claim can be made out -- Whether onus on applicant to show native title not extinguished -- Construction of Native Title Act 1993 (Cth) by National Native Title Tribunal -- Whether presidential member should form view on questions of law -- (CTH) Native Title Act 1993 s. 63.
Real property -- Title -- Native title -- Application for native title determination -- Application not accepted by Registrar -- Whether prima facie a claim can be made out -- Whether evidence requested to support application -- Reference of application to presidential member -- Opportunity to show a prima facie claim can be made out -- Whether onus on applicant to show native title not extinguished -- Construction of Native Title Act 1993 (Cth) by National Native Title Tribunal -- Whether presidential member should form view on questions of law -- (CTH) Native Title Act 1993 s. 63.
Words and phrases -- "prima facie" -- (CTH) Native Title Act 1993 s. 63.
On 27 June 1994, the applicants lodged an application with the Registrar of the National Native Title Tribunal for a determination that native title existed over certain land. On 16 August 1994, the Registrar referred the application to the President of the Tribunal pursuant to s. 63(2) of the Native Title Act 1993 (Cth) as she was of the opinion that prima facie the applicants' claim could not be made out. On 18 August 1994 the applicants were advised pursuant to s. 63(3)(a) that the President was of the same opinion as the Registrar. The applicants were advised, as required by s. 63(3)(a), that they would be given a reasonable opportunity to show that a prima facie claim could be made out.
The first issue for decision concerned the requirements under s. 63(3)(a), whereby the applicants were given a reasonable opportunity to satisfy the President that "a prima facie claim" could be made out. A subsidiary issue concerned the range of matters which needed to be considered for the purpose of determining whether the application should be accepted.
Held, directing the Registrar not to accept the application:
(1) The Tribunal is an administrative body and its members and the Registrar perform administrative functions. In approaching questions of statutory construction the Tribunal and its officers must apply the same rules as are applied by the courts. Section 63 of the Native Title Act can be construed by reliance upon the language of the section, its context and the stated objectives of the Act.
South Australian Commissioner for Prices and Consumer Affairs v. Charles Moore (Aust.) Ltd [1977] HCA 38; (1977) 139 CLR 449; 14 ALR 485, followed.
(2) An application for a determination must be accompanied by certain documents, including a supporting affidavit: s. 62. There is no requirement, however, to submit evidence in support of the application which would make out a prima facie case in a court of law. When the Registrar considers an application, the applicants are not required to demonstrate a positive case. The condition of non-acceptance by the Registrar ("prima facie the claim cannot be made out") does not operate on a lack of evidence but is satisfied if something is disclosed in the application or supporting affidavit to indicate at first sight that the applicants could not establish the elements of native title or that native title has been extinguished. The Registrar is not obliged to make any investigation beyond the application and accompanying documents, but such an investigation is not precluded by s. 63.
(3) The test to be applied by a presidential member, once an application has been referred pursuant to s. 63(2), in determining whether he or she is "of the same opinion" as the Registrar, is the same as the test applied by the Registrar. The presidential member will usually form an opinion on the basis of the materials relied upon by the Registrar, but the presidential member is not limited to the issues upon which the Registrar formed her opinion.
(4) A presidential member must advise an applicant in writing of the opinion that prima facie the claim cannot succeed and must invite the applicant to show that a prima facie claim can be made out: s. 63(3)(a). The words "prima facie claim" in s. 63(3)(a) are used in a permissive sense. It is satisfied when there is evidence of each of the elements necessary to establish native title and from which the conclusion can be drawn that native title exists. The applicant does not have to produce evidence. A prima facie case does not have to be made out. The applicant can show that a prima facie claim can be made out by specifying sufficient of the evidence to be called in relation to the elements of native title that the presidential member is satisfied that there is enough to support each of those elements.
(5) The question of the onus in relation to extinguishment of native title is arguably open at common law. The Act does not contemplate that the applicants would have to demonstrate non-extinguishment as an element for making out a prima facie case for native title. It is not necessary that the applicants identify comprehensive evidence of non-extinguishment as a condition of acceptance of their claim. On the other hand, evidence of an extinguishing event may be acted upon by the registrar in deciding that prima facie the claim cannot be made out.
(6) If there is a question of law which, if decided one way, would be fatal to the application in a court of law, the presidential member should form a view on it for the purpose of deciding whether a prima facie claim can be made out.
The decision is reported in (1995) 129 ALR 100.
See also (1995) 3(73) Aboriginal Law Bulletin 10; (1995) 3(73) Aboriginal Law Bulletin 14.