Martin v Native Title Registrar [2001] FCA 16

FEDERAL COURT OF AUSTRALIA

Martin v Native Title Registrar [2001] FCA 16

ABORIGINES – native title – Register of Native Title claims – application of registration test – authorisation requirement – sufficiency of supporting affidavit – registration conditions – authorisation – factual basis for native title rights and interests claimed – association with area claimed – existence, acknowledgment and observance of traditional laws and customs – improper exercise of power – application dismissed.

Native Title Act 1993 (Cth) s 190B, 190C

Administrative Decisions (Judicial Review) Act 1977

Strickland v Native Title Registrar (1999) 168 ALR 242 cited

Western Australia v Strickland (2000) 99 FCR 33 cited

JOAN MARGARET MARTIN v THE NATIVE TITLE REGISTRAR, THE STATE OF WESTERN AUSTRALIA

W 6013 OF 1999

FRENCH J

19 JANUARY 2001

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W6013 OF 1999

BETWEEN: JOAN MARGARET MARTIN

APPLICANT

AND: THE NATIVE TITLE REGISTRAR

FIRST RESPONDENT

THE STATE OF WESTERN AUSTRALIA

SECOND RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 19 JANUARY 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application is dismissed. 2. No order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W6013 OF 1999

BETWEEN: JOAN MARGARET MARTIN

APPLICANT

AND: THE NATIVE TITLE REGISTRAR

FIRST RESPONDENT

THE STATE OF WESTERN AUSTRALIA

SECOND RESPONDENT

JUDGE: FRENCH J

DATE: 19 JANUARY 2001

PLACE: PERTH

REASONS FOR JUDGMENT

History of Proceedings 1 On 26 August 1997, Joan Margaret Martin and three others who designated themselves as the "Widi Mob", lodged with the Native Title Registrar a native title determination application. Details of that application were placed on the Register of Native Title Claims on the same day, pursuant to the provisions of the Native Title Act 1993 (Cth) as it then stood. By virtue of the Native Title Amendment Act 1998 all native title determination applications commenced on or after 30 September 1998 were to be instituted in the Federal Court. Native title applications which had been lodged with the Native Title Registrar under the Act as it stood before the amendments and which had not been referred to the Federal Court under s 74 of the Act, became proceedings in the Federal Court by operation of transitional provisions. 2 New applications lodged under the amended Act after 30 September 1998 would not be placed on the Register of Native Title Claims and thus attract the benefits of the right to negotiate regime, in relation to certain classes of future act, unless they satisfied the conditions in ss 190B and 190C of the Act (s 190A(6)). That is to say, new claims had to pass a registration test not previously applicable before being placed on the Register of Native Title Claims. Claims lodged prior to 30 September 1998 were also to be subject to the registration test in certain circumstances. One of those circumstances would arise if, after 30 September 1998, the relevant State government issued a notice under s 29 of the Act of its intention to do a future act to which the right to negotiate applied. So if, for example, a new s 29 notice relating to the proposed grant of a mining tenement were issued after 30 September 1998, the right to negotiate would only extend to claimants under pre-existing native title determination applications where they passed the registration test. 3 A s 29 notice affecting the area covered by the native title determination application lodged by the Widi Mob was published on 14 October 1998. A motion for leave to amend the application was filed in this Court with the proposed amended application on 5 February 1999 and was listed for hearing on 24 February 1999. In the meantime an officer of the Tribunal wrote to Mrs Martin's legal representatives indicating that the application would be considered as soon as reasonably practicable. A number of issues relating to the application and its compliance with the requirements of the registration test were raised in that letter. On 24 February, the District Registrar of the Federal Court made an order amending the native title determination application subject to certain changes which were to be incorporated in a fresh version of the amended application which was eventually filed on 4 March 1999. On 4 May 1999, a delegate of the Native Title Registrar decided that the application was not accepted for registration pursuant to s 190A of the Act. It is to be noted that the amended applications filed on 5 February and 4 March each named only Mrs Martin as the applicant. In each case the application was said to be brought on behalf of thirty two named persons and their biological descendants. 4 On 28 May 1999, Mrs Martin filed an application for an order of review of the delegate's decision. That application was expressed to be made under the provisions of the Administrative Decisions (Judicial Review) Act 1977. After various interlocutory steps were taken a minute of a proposed amended application for review was filed on 31 December 1999. On 11 February 2000, the State of Western Australia was joined as a second respondent to these proceedings and the application amended in accordance with the minute filed on 31 December 1999. It was adjourned to a date to be fixed. At that time the hearing by the Full Court of an appeal from my decision in Strickland v Native Title Registrar (1999) 168 ALR 242 was pending. That case raised issues potentially relevant to those raised in the present application. The parties were therefore, on 11 February, given liberty within fourteen days of the decision of the Full Court in the Strickland case to submit additional written submissions and to apply for a hearing date for further oral submissions if desired. In the event the Full Court gave its decision in Western Australia v Strickland (2000) 99 FCR 33 on 18 May 2000. Further written submissions were lodged by the parties thereafter. No party sought to make further oral submissions.