Hollier, William Edward for the Holliers of the Bass Strait Islands v Registrar of the National Native Title Tribunal & Ors [1997] FCA 390

IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY GENERAL DIVISION No VG 6001/96 WILLIAM EDWARD HOLLIER FOR THE HOLLIERS OF THE BASS STRAIT ISLANDS Applicant -and- REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL First Respondent -and- COMMONWEALTH OF AUSTRALIA Second Respondent -and- STATE OF VICTORIA Third Respondent -and- STATE OF TASMANIA Fourth Respondent Coram: Olney J Place: Melbourne Date: 19 May 1997 MINUTE OF ORDERS THE COURT ORDERS THAT: 1 The application be dismissed. 2. The direction of Deputy President Wootten to the first respondent not to accept the applicant's application for a determination of native title be affirmed. 3. The applicant pay the respondents' costs including any reserved costs. NOTE: Settlement and entry of orders is dealt with in order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY GENERAL DIVISION No VG 6001/96 WILLIAM EDWARD HOLLIER FOR THE HOLLIERS OF THE BASS STRAIT ISLANDS Applicant -and- REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL First Respondent -and- COMMONWEALTH OF AUSTRALIA Second Respondent -and- STATE OF VICTORIA Third Respondent -and- STATE OF TASMANIA Fourth Respondent Coram: Olney J Place: Melbourne Date: 19 May 1997 REASONS FOR JUDGMENT This is an application brought pursuant to s 169(2) of the Native Title Act 1993 (the Act) whereby the applicant appeals to the Court from a decision of a presidential member of the National Native Title Tribunal (the tribunal) not to accept an application under s 61 of the Act given to the Registrar of the Tribunal (the registrar) by the applicant. (In reality the decision appealed against is a direction to the registrar not to accept the application).

The appeal raises the question as to whether a person who is not a descendant of the inhabitants of Australia who were in occupation of the country prior to the assertion of British sovereignty can claim native title rights under the Act. The scheme of the Act insofar as it relates to the making of an application for a determination of native title may be summarised as follows. A person or persons claiming to hold, either alone or with others, native title in relation to an area for which there is no approved determination of native title may make a "native title determination application" for a determination of native title by giving the application to the registrar (s 13(1); s 61(1)). The form and content of such an application are dealt with in s 61(2), (3) and s 62. If the requirements of s 62 are complied with in relation to the application the registrar must accept it unless of the opinion either that the application is frivolous or vexatious or that prima facie the claim cannot be made out (s 63(1)) and if the registrar is of such opinion, the application must be referred to a presidential member of the tribunal (s 63(2)). If the presidential member is not of the same opinion as the registrar, the presidential member must direct the registrar to accept the application (s 63(4)) but if of the same opinion as the registrar, the presidential member must advise the applicant in writing to that effect and give the applicant a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out (s 63(3)(a)). In the event that the applicant so satisfies the presidential member, the presidential member must direct the registrar to accept the application (s 63(3)(b)) but otherwise the presidential member must direct the registrar not to accept the application (s 63(3)(c)). A person who has given an application to the registrar under s 61 may appeal to the Federal Court on a question of fact or law, from a decision of a presidential member not to accept the application (s 169(2)). (The wording of s 169(2) is inconsistent with that of s 61(3)(c) in that the presidential member is not required or empowered to make a decision not to accept an application but rather, in the appropriate circumstances, must direct the registrar not to accept the application. For present purposes I am prepared to construe s 169(2) as giving a right of appeal against a decision directing the registrar not to accept an application. The point was not raised in argument). On or about 28 September 1995 the applicant forwarded to the registrar an application for a determination of native title made pursuant to ss 13 and 61 of the Act. The application is expressed to have been made on behalf of the applicant and others described as "Holliers of the Bass Strait Islands". The area covered by the application is described as: Deal Island, Bass Strait as the principal site of the area which also includes both the immediate region of the Kent Group and the islands and waters east to south-east of Wilson's Promontory and north to north-west of Flinders Island. This is principally in the State of Tasmania but includes area in the State of Victoria.