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Nettheim, Garth --- "The Re - recognition Process for Native Title Representative Bodies: Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs" [2000] IndigLawB 77; (2000) 5(4) Indigenous Law Bulletin 25


The Re-recognition Process for Native Title Representative Bodies:

Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs

[2000] FCA 1113; 175 ALR 706

Administrative Decisions (Judicial Review) Act 1977 (Cth)

14 August 2000

By Garth Nettheim

The processes followed in the re-recognition process for Native Title Representative Bodies (‘NTRBs’) under the 1998 amendments to the Native Title Act 1993 (Cth) (‘the NTA’) were recently considered by Justice Merkel in the Federal Court.

The Pilbara Aboriginal Land Council (‘the PALC’) was originally incorporated in 1982 under the Aboriginal Councils and Associations Act 1976 (Cth) (‘the ACA Act’). In March 1996, it was recognised as a NTRB for ‘the original Pilbara area’ but it did not have a monopoly over representing native title groups in that area. A total of four bodies were invited to apply for recognition as the NTRB for the ‘Pilbara invitation area’ as part of the process of implementing the post-1998 NTRB regime.[1] The re-recognition process was conducted by ATSIC through assessment teams acting under a document entitled ‘Procedures Relating to Applications for Recognition as a Native Title Representative Body’.

An ATSIC assessment team met with members of the PALC in October 1999. It eventually reported to the Minster. The report contained a number of adverse observations and opinions. The Minster, acting ‘substantially if not entirely’ on the report of the assessment team, decided in March 2000 not to recognise the PALC as the representative body for the area. The PALC sought judicial review for breach of the rules of natural justice, arguing that the adverse material in the report to the Minister should have been disclosed to them so that they might have an opportunity to respond.

Justice Merkel, after extended consideration of the law, held that the rules of natural justice were applicable to the re-recognition process under the NTA. However he accepted that all the adverse matters had, in fact, been raised by the assessment team during its field visit and that the PALC had the opportunity to respond at that time. There was no further obligation on the assessment team or the Minister to bring those portions of the team’s written report to the attention of the PALC. The application was dismissed.

Garth Nettheim is Emeritus Professor at the Faculty of Law, University of New South Wales.


[1] See Tracey Summerfield, ‘The NTRB Regime: A Site of Cross-Cultural Tension & Political Vulnerability’ (2000) 4(28) ILB 10.

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