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Dolman, Kevin J --- "Native Title Representative Bodies Cautioned: Hicks v Aboriginal Legal Service of Western Australia (Inc)" [2000] IndigLawB 58; (2000) 5(2) Indigenous Law Bulletin 16


Native Title Representative Bodies Cautioned:

Hicks v Aboriginal Legal Service of Western Australia (Inc)

Federal Court of Australia

[2000] FCA 544

Carr J

Application for judicial review

28 April 2000

By Kevin J. Dolman

Native title representative bodies making decisions about whether to fund native title claims have been reminded to avoid actual or perceived conflicts of interest. In this case, Justice Carr found that the Aboriginal Legal Service of Western Australia (‘the ALSWA’) appeared biased when it refused to fund a Pilbara native title case. The decision gives some indication of what may be considered as perceived bias and how to avoid it in the context of Native title representative body functions.[1]

Wilfred Hicks of the Wong-Goo-tt-Oo group made an application to the ALSWA for funding to pay for legal assistance in making a native title claim. The application was refused. Hicks sought to have the decision judicially reviewed. He argued that the lawyer who refused the application made the decision under a perceived or apprehended bias. This bias arose from the fact that the ALSWA had already agreed to fund, and were already acting in, the Ngaluma Injibandi group's application for a native title determination and an area of the Ngaluma Injibandi group's application overlapped the Wong-Goo-tt-Oo group’s proposed native title claim.

Justice Carr found that the decision in relation to funding was made under section 202 of the Native Title Act 1993 (Cth) and was a reviewable decision for the purposes of the Administrative Decision (Judicial Review) Act 1977 (Cth). Justice Carr highlighted that there was no actual bias on the ALSWA’s part but he said any fair-minded observer might think that the ALSWA was unable to act impartially. He said that independent legal advice would have avoided any questions of perceived bias and that the advice in this case could have been obtained for about $1000 - $1500. His Honour set aside the ALSWA’s original decision and ordered them to make the decision again, this time in accordance with the law.

Kevin Dolman is Eastern Arrernte and a law graduate currently employed as an editor at both the Indigenous Law Bulletin and the Australian Indigenous Law Reporter.

[Editor’s Note: ALSWA failed in its bid for re-recognition of NativeTtitle Representative Body status under the amended Native Title Act 1993 (Cth). In Hicks v Aboriginal Legal Service of Western Australia (Inc) [2000] FCA 1448 (13 October 2000), the Federal Court directed the Wong-Goo-tt-Oo group to make a new application to the Yamatji Barna Baba Maaja Aboriginal Corporation (Yamatji Land and Sea Council), which has been recognised as the Native Title Representative Body for the Geraldton area.]


[1] See Tracey Summerfield, ‘The Native Title Representative Body Regime: a Site of Cross-cultural Tension and Political Vulnerability’ [2000] IndigLawB 23; (2000) 4(28) Indigenous Law Bulletin 13.

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