Case: Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 
Outcome: applied
I have before me an amended application by Len Watson, Vassa Hunter and Nancy Riehl jointly on behalf of the Wiri People ("the applicant") to review a decision of a delegate of the first respondent, the Native Title Registrar ("the Registrar") not to accept the Wiri People #2 Claimant Application (QUD 6251 of 1998) ("the Wiri #2 Application") for registration under section 190A Native Title Act 1993 (Cth) ("the Act "). The decision was made by the delegate on 24 May 2007. The jurisdiction of the Court to review a decision of the Registrar not to accept a claim for registration is enlivened by s 190D of the Act , with the Court being seized of broad powers pursuant to that section ( Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 at 49-50). 2 The relief sought by the applicant is as follows : A. An order setting aside the decision of the Registrar to not accept the Wiri #2 Application for registration effective as from 24 May 2007 B. An order directing the Registrar to accept the Wiri #2 Application for registration and include in the Register of Native Title claims details of the application with effect from 24 May 2007 C. Such other orders as the Court thinks just and necessary. 3 The Wiri #2 Application was first entered on the Native Title Register on 2 April 1998. The application covered a broad area of country in Central Queensland, the eastern boundary of which abutted and extended to offshore islands beyond the coastline to the north and south of Mackay and the western boundary of which was located well inland of the coastline. 17 Reading together ss 190A (6) and 190C (4)(b), the logical conclusion is that, unless the Registrar or his delegate is satisfied that the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group, the Registrar or his delegate must not accept the claimant application for registration. The information which the Registrar or his delegate can consider in making a decision as to whether the claimant application should be accepted is defined broadly by s 190A (3), and includes not only information contained in the application and other documents provided by the applicant (s 190A (3)(a)), but also any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests (s 190A (3)(b)). The breadth of the information the Registrar can take into account pursuant to s 190C (4)(b) was recognised by the Full Court in Western Australia v Strickland at 52 19 Further, the Full Court in Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 at 53, in considering the state of satisfaction required under s 190C (4)(b), agreed with French J that the decision of the Registrar or his delegate should stand if the decision was reached on material available to the Registrar's delegate, and it was not shown that the delegate had been informed by any error in principle in so doing. 20 In the circumstances of this case the delegate, inter alia : &#8226; was informed by the Central Queensland Land Council that, pursuant to s 203BE of the Act , it had certified another claim of the Wiri People, which overlapped and competed with the Wiri #2 Application, namely the Wiri Core Application; &#8226; considered anthropological reports attached to the Wiri Core Application supporting the existence of wider native title claim group than identified in the Wiri #2 Application; &#8226; after searching the Tribunal records, noted that the Wiri #2 Application and the Wiri Core Application were but two of a number of applications that had been made over the years by differently described or differently composed groups of Wiri People; and &#8226; noted that the meeting notice for the authorisation meeting for the Wiri #2 Application invited only the very persons ultimately described as the native title claim group in the Wiri #2 Application. 21 In these circumstances, it was open to the delegate to find that the relevant native title claim group was larger than the group identified in the Wiri #2 Application. The finding of the delegate that she was not satisfied that the applicant was authorised to make the application and deal with matters arising in relation to it by all the other persons in the native title claim group was, in my view, available on the material. 22 In relation to grounds 1 and 2 of the applicant's claim I consider that the applicant has itself misconstrued the basis of the delegate's decision, and incorrectly described the principles on which the delegate was required to make her decision. I take this view for the following reasons. 23 First, as I have already observed, s 190C(4)(b) does not confine the Registrar or his delegate to the statements made in the affidavit or the information provided in the application in reaching the relevant state of satisfaction : Western Australia v Strickland at 52. The existence and nature of, and information in, the Wiri Core Application, which had been before the Native Title Tribunal previously, was both available to the delegate and relevant to her consideration of whether the applicant in the Wiri #2 Application was authorised to make the application on behalf of all the other persons in the native title claim group. 24 Second, in written submissions the applicant contended that the delegate erroneously considered that she was required to adjudicate between differing descriptions of a native title claim group, and make a factual determination as to the "correct" description of the group. However, it is clear from reading the delegate's Reasons for Decision that the delegate carefully avoided making such a determination. Indeed, the delegate clearly stated that : the identity or composition of the Wiri People native title claim group is an intractable dispute of many years standing.... The dispute amongst those who claim to be Wiri is not one that I can decide or resolve in the course of this administrative decision as it is not my role to determine the identity of all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed in the area of this application. 25 While the delegate did consider at some length the fact, and nature, of the Wiri Core Application, there is no indication the delegate was adjudicating between that group and the group identified in the Wiri #2 Application. As I have already found however, it was open to the delegate, in reaching her decision under s 190C (4)(b), to take into consideration, inter alia , the existence of that overlapping and competing application, the fact that the native title claim group it described was broader than the description in the Wiri #2 Application, and the fact that it had been certified pursuant to s 203BE by the Central Queensland Land Council. 28 Fourth, I do not accept the applicant's argument that s 190C (4)(b) restricts the Registrar to considering whether he is satisfied that the applicant is authorised to make the application by the persons described in the application as the native title claim group. Indeed, this argument runs contrary to findings in other cases, including that of the Full Court (endorsing the decision of French J) in Western Australia v Strickland , that the Registrar or his delegate is not confined in s 190C (4) to statements made in the affidavit or the information in the relevant application.