Registration Test Decision
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Registration test decision Native title determination application Palpamudramudra Yandrawandra Native Title Claim Applicant Leslie John Harris Snr, Leslie John Harris Jnr, Katherine Litherland, Tom Gallifant, Francis Roe Federal Court No. QUD106/2016 NNTT No. QC2016/002 As required by s 190A(1) of the Native Title Act 1993 (Cth) (the Act),1 I have considered the claim made in the Palpamudramudra Yandrawandra native title determination application, in accordance with s 190A, against each of the conditions contained in ss 190B and 190C of the Act. This document comprises notice to the applicant and to the Federal Court under s 190D(1) and a statement of my reasons for the decision not to accept the claim for registration, which I have made under s 190A(6B). For the purposes of s 190D(3), my opinion is that the claim does not satisfy all of the conditions in s 190B. ___________________________________ Nadja Mack, delegate of the Native Title Registrar2 7 April 2016 1 All references to legislative sections refer to the Native Title Act 1993 (Cth), as in force on the day this decision is made, unless otherwise specified 2 Pursuant to delegation instrument dated 12 October 2015 Shared country, shared future. Introduction [1] On 9 February 2016, the Registrar of Federal Court (Federal Court) provided a copy of the Palpamudramudra Yandrawandra native title claim native title determination application and accompanying documents (application) to the Native Title Registrar (Registrar)3. This has triggered the Registrar’s duty4 to consider the claim in that application for registration5. [2] Section 190A(6B) provides that the Registrar must not accept a claim for registration if it does not satisfy all of the conditions of s 190B (which deals mainly with the merits of the claim) and s 190C (which deals with procedural and other matters). [3] I have found that the claim does not satisfy all of the conditions of ss 190B and 190C. My reasons for this decision are set out below. Information considered when making the decision [4] There is certain information that I must have regard to when testing an application for registration and I may have regard to other information, as I consider appropriate – s 190A(3). [5] I have had regard to information in the application and accompanying documents as well as further information submitted by the applicant’s representative directly to the Registrar on 11 and 16 February 2016 and a response, received on 4 April 2016, to a submission received from Queensland South Native Title Services (QSNTS) dated 25 February 20166. I have also considered information contained in an overlap analysis and geospatial assessment of the map and description provided in the application by the Tribunal’s Geospatial Services dated 11 February 2016 (geospatial report) and an IspatialView assessment undertaken by myself on 8 April 2016. [6] In relation to QSNTS’ submission I note the following: when forming an opinion on whether it is appropriate to have regard to such information under s 190A(3)(c), I need to examine the content of the submission and consider the information against the requirements of the particular condition of the registration test to which it purports to speak 7. In relation to the ambit of what may be appropriate for me to have regard to, I am further guided by certain judgements of the Federal Court8 and quote relevant aspects of these decisions below. 3 under s 63 4 under s 190A(1) 5 in accordance with the provisions of s 190A 6 as required by s 190A(3)(a) 7 see Mansfield J in Attorney General of Northern Territory v Doepel (2003) 133 FCR 112 (Doepel) at [19] 8 Gudjala People #2 v Native Title Registrar [2008] FCAFC 157 (Gudjala FC), Strickland v Native Title Registrar [1999] FCA 1530 (Strickland), Western Australia v Strickland [2000] FCA 652 (Strickland FC) and Wiri People v Native Title Registrar [2008] FCA 574 (Wiri People) Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 2 Decided: 7 April 2016 [7] QSNTS, in summary, submits that the claim group description in Schedule A does not provide objective criteria to determine membership to the claim group. As such the requirements of s 190B(3)(b) are not met. Further, as the claim group description is not clear, it is not possible to determine if all of the people comprising the claim group have authorised the making of the application. QSNTS also submits that notice for the authorisation meeting was deficient. As such the requirements of s 190C(4)(b) are not met. Section 190B(3) Is it appropriate for me to have regard to adverse information? [8] According to Mansfield J in Doepel the requirements of s 190B(3) do not appear to go beyond consideration of the terms of the application – at [16] and [51]. Decision [9] Therefore, in my view, I cannot consider the information contained in the QSNTS submission when considering the application against the requirements of s 190B(3). Section 190C(4)(b) Is it appropriate for me to have regard to adverse information? [10] The application considered by Mansfield J in Doepel was certified and therefore his Honour had to consider the provisions of s 190C(4)(a). Whilst not specifically addressing the question of what information the Registrar may have regard to when considering the requirements of s 190C(4)(b), Mansfield J observed that ‘[i]f s. 190C(4)(b) applies, s. 190C(5) imposes requirements which must appear from the application itself’ at— [16]. His Honour also relevantly states in relation to the two alternatives in s. 190C(4) — certification under subsection (4)(a) or authorisation under subsection (4)(b) - that The contrast between the requirements of subs (4)(a) and (4)(b) is dramatic. In the case of subs (4)(a), the Registrar is to be satisfied about the fact of certification by an appropriate representative body. In the case of subs (4)(b), the Registrar is required to be satisfied of the fact of authorisation by all members of the native title claim group. Section 190C(5) then imposes further specific requirements before the Registrar can attain the necessary satisfaction for the purposes of s 190C(4)(b). The interactions of s 190C(4)(b) and s 190C(5) may inform how the Registrar is to be satisfied of the condition imposed by s 190C(4)(b), but clearly it involves some inquiry through the material available to the Registrar to see if the necessary authorisation has been given. The nature of the enquiry is discussed by French J in Strickland v NTR at 259 - 260, and approved by the Full Court in WA v Strickland at 51 - 52. Both Martin at [13] - [18], and Risk v National Native Title Tribunal [2000] FCA 1589 involved consideration of the condition imposed by s 190C(4)(b) — at [78]. [11] French J in Strickland at [57] found that subsections 190C(4) and 190C(5) do not confine the delegate to the statements in the application or in the prescribed accompanying s. 62(1)(a) affidavit when deciding whether s. 190C(4)(b) is satisfied: the delegate may have regard to other material provided by the applicant or otherwise available in relation to the authorisation of the applicant. This finding was approved on appeal to the Full Court in Strickland FC at [78]. Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 3 Decided: 7 April 2016 Decision [12] Based on the above, I am of the view that it is appropriate for me to have regard to the QSNTS submission in relation to the requirements of s. 190C(4)(b). [13] The question that remains to be considered by me is how much reliance I place on the information contained in the submission. I refer to my discussion at s. 190C(4) below. Procedural fairness steps [14] As I was of the preliminary view that the application could not be accepted for registration, there was no requirement to invite the State of Queensland to make submissions. [15] The applicant was provided with a copy of QSNTS’ submission on 31 March 2016 and invited to make a response by 8 April 2016. A response was received on 4 April 2016. QSNTS was advised on 31 March 2016 that the delegate is of the view that procedural fairness is not owed to QSNTS and the applicant’s response was not provided to QSNTS. My consideration [16] In my reasons for my decision I first test the application against the requirements under s 190C and then against the s 190B requirements. To assist the reader, in my assessment I have highlighted in grey the relevant Schedules and Attachments of the application which contain the information tested. Reasons for decision: QC 2016/002 Palpamudramudra Yandrawandra People Page 4 Decided: 7 April 2016 Procedural and other conditions: s 190C Subsection 190C(2) Information etc. required by ss 61 and 62 The Registrar/delegate must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62. [17] The application does not satisfy the conditions of s 190C(2), because it does not contain all of the details and other information and documents required by ss 61 and 62, as set out in the reasons below. [18] This condition is procedural only and simply requires me to be satisfied that the application contains the information and details, and is accompanied by the documents, prescribed by ss 61 and 62. This condition does not require me to undertake any merit or qualitative assessment of the material for the purposes of s 190C(2)9.