Case: Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157
Outcome: considered
The Delegate commenced her consideration of whether the application's factual basis supported the assertions set out in subparas 190B(5)(a) to (c) by reminding herself of what Mansfield J had said of s. 190B(5) of the Native Title Act in Northern Territory v Doepel [2003] FCA 1384 ; (2003) 133 FCR 112 at 120, [17] : Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the "factual basis on which it is asserted" that the claimed native title rights and interests exist "is sufficient to support the assertion". That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts. I note that this particular passage from Doepel's Case was recently expressly approved by the Full Court in Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 (French, Moore and Lindgren JJ) at [82]. The emphasis evident in the passage quoted is that which the Full Court gave to those words in the Gudjala People # 2 Case. For reasons which will become apparent, it will be necessary later to return to the Full Court's reasons in the Gudjala People # 2 Case. 32 A noteworthy and commendable feature of the submission made by the Applicant's solicitor and of the supporting affidavit evidence was their candour. It was stated in the Applicant's written submission: The Applicant has not yet sought to again amend the Application since the date of the registration test decision. However such a course of action has not been dismissed by the Applicant. The Applicant cannot properly consider its position in this regard until such time as there is further anthropological research undertaken in respect of the claim. The Applicant apprehended that there were two primary reasons why the claim had failed the registration test. As put in the written submission, these were submitted to be: (a) The initial decision of Justice Dowsett in The Gudjala People # 2 v Native Title Registrar [2007] FCA 1167 was the applicable law at the time of the registration test.. The requirements for registration testing as enunciated in that decision (particularly those as apply to s 190B(5)(a) and (b)) have been softened somewhat by the recent full court decision in that matter. (b) There was a lack of material placed before the registration test delegate such that would allow her to satisfy herself as to the requirements of a factual basis to the claim as required by s 190B(5)(c). [sic] 33 Regard to the Delegate's reasons confirms a reference by her to the judgement of Dowsett J in The Gudjala People # 2 v Native Title Registrar in the course of her consideration of the factual basis for the assertions described in s 190B(5)(a) and (b), but not in her consideration of s 190B(5)(c). His Honour delivered judgment in that case on 7 August 2007. There was delay in the institution of an appeal against his Honour's decision. Further, the appeal was not heard until 14 May 2008, i.e. after the Delegate had made her decision. On 27 August 2008 the Full Court allowed the appeal. At the time when she reached her decision reference by the Delegate to the judgment of Dowsett J in The Gudjala People # 2 v Native Title Registrar was both understandable and appropriate. 34 My assessment of why, having regard to the Delegate's reasons, she decided not to accept the claim for registration accords with that of the Applicant's solicitor. 58 The Applicant's submission, it may be recalled, contended that the Full Court's decision in the Gudjala People # 2 case (supra) had "softened somewhat" the requirements for registration testing (particularly in relation to s 190B(5)(a) and (b) of the Native Title Act ). The relevance of this contention was not developed in the submission. 59 In the Gudjala People # 2 case (supra, at [90] to [92] ) the Full Court offered the following guidance as to the inter-relationship between s 62 of the Native Title Act , which relevantly governs the material to be contained in a claimant application such as the present and the consideration of a claim for registration for which s 190A of that Act provides and the ramifications of that inter-relationship in terms of satisfaction by the Registrar or the NNTT or the Court on review that the conditions in s 190B of the Act are or are not met. [90] A convenient starting point, in considering the correctness of his Honour's approach, is to consider the interaction between s 62 and s 190A in the terms they were in at the time the application was lodged. The former provision prescribes what an applicant must do to commence an application. The latter provision establishes a statutory regime under which the Registrar of the Tribunal assesses the application to determine whether it should be accepted. It is tolerably clear that what the assessment entails is informed by what is required of an applicant to commence an application. Indeed, there is no reason to doubt that this statutory scheme contemplates that it would be open to the Registrar to accept an application based on the application, including the accompanying affidavit, without having regard to other information of the type referred to in s 190A(3). Accordingly, the statutory scheme appears to proceed on the basis that the application and accompanying affidavit, if they, in combination, address fully and comprehensively all the matters specified in s 62 , might provide sufficient information to enable the Registrar to be satisfied about all matters referred to in s 190B. This suggests that the quality and nature of the information necessary to satisfy the Registrar will be of the same general quality and nature as the information required to be included in the application and accompanying affidavit. Of course, if an applicant fails to fully and comprehensively furnish the information required by s 62 then there is a risk that the Registrar will not accept the claim although that risk is ameliorated by the power of the Registrar to consider information additional to that contained in the application, including documents (other than the application) provided by an applicant: see s 190A(3)(a). [91] What then is the nature and quality of the information required by s 62? In substance, s 62(1) requires that the accompanying affidavit must contain evidence that the applicant believes the claimed rights have not been extinguished, believes none of the claimed area is covered by an entry in the Register, believes all the statements made in the application are true and that the applicant is authorised to make the application. The application must contain the details specified in s 62(2) and may contain details of the matters referred to in s 62(1)(c). There is an obvious link between the requirement that the evidence of the applicant include a statement that the applicant believes that all the statements in the application are true and the requirement that the application contain the details specified in s 62(2) together with the identification of the details in that subsection. [92] Of central importance in this appeal are the details specified by s 62(2)(e) , namely details which constitute a general description of the factual basis on which it is asserted that the native title rights and interests claimed existed and, in particular, the matters referred to in ss 62(2)(e) (i), (ii) and (iii). Those details are in aid of the description, with some particularity, required by s 62(2)(d) of the asserted native title rights and interests. The fact that the detail specified by s 62(2)(e) is described as "a general description of the factual basis" is an important indicator of the nature and quality of the information required by s 62. In other words, it is only necessary for an applicant to give a general description of the factual basis of the claim and to provide evidence in the affidavit that the applicant believes the statements in that general description are true. Of course the general description must be in sufficient detail to enable a genuine assessment of the application by the Registrar under s 190A and related sections, and be something more than assertions at a high level of generality. But what the applicant is not required to do is to provide anything more than a general description of the factual basis on which the application is based. In particular, the applicant is not required to provide evidence of the type which, if furnished in subsequent proceedings, would be required to prove all matters needed to make out the claim. The applicant is not required to provide evidence that proves directly or by inference the facts necessary to establish the claim. (Emphasis added). 60 The Full Court observed (supra, at [93]) that, "[We] think there are observations of the primary judge in his reasons which suggest that his Honour approached the material before the Registrar on the basis that it should be evaluated as if it was evidence furnished in support of the claim. If, in truth, this was the approach his Honour adopted, then it involved error." This observation though did not form the basis upon which the appeal in the Gudjala People # 2 case was allowed. The appeal was allowed on the basis of an error perceived by the Full Court in the way that learned trial judge had evaluated and come to discount the report of an expert anthropologist, Mr Hagen which formed part of the application for determination of native title. That evidence had been criticised or in many respects rejected on the basis that it "provides opinions and conclusions rather than any alleged factual basis for such opinions and conclusions or for the claim". 61 That was held to be in error for two reasons. It was inconsistent with the position under the Evidence Act 1995 (Cth) in which a "basis rule" requiring facts upon which an expert opinion or conclusion is based to be established before that opinion or conclusion is admissible does not prevail. Rather, under that Act, an absence of establishment of such facts may diminish the weight to afford that opinion or conclusion. Further, it ignored the position that expert anthropological evidence may not necessarily be opinion evidence at all but rather be direct evidence of the anthropologist's observations and thus admissible in the ordinary course. Even though Mr Hagen's report did not fall for consideration by reference to questions of admissibility that would arise on a trial of the application, the Full Court (supra, at [96]) considered that his Honour's erroneous conception "affected his approach in assessing the matters required to be considered by s 190B(5)". 62 Certainly, in evaluating for the purposes of s 190F(6)(a) of the Native Title Act the prospect of a different outcome an amended application was considered by the Registrar, it is necessary to make that evaluation informed by what was said by the Full Court in the Gudjala People # 2 case, particularly in the parts I have emphasised in the passage from the Full Court's judgement quoted above 63 Even though, by the time when a show cause proceeding under s 190F(6) is conducted, the occasion for the review of an adverse registration decision will have passed, I am prepared to accept that, for the purposes of s 190F(6)(b), an "other reason" might be found for not dismissing an application in circumstances where later judicial authority in another case disclosed that the Registrar's approach to whether the conditions in s 190B had been satisfied had been overly rigorous. 64 Even allowing for such matters, it seems that the Applicant acknowledges that in its present form the application is wanting in detail, especially in the provision of a factual basis for an assertion that the native title claim group have continued to hold the native title in accordance with acknowledged traditional laws (s 190B(5)(c)). It is not clear to me, having regard to what I have regarded as key passages in the Delegate's reasons and quoted above, that her conclusions in relation to s 190B(5) were wholly attributable to the influence of decision of Dowsett J in the Gudjala People # 2 case. In the absence of a more developed and particularised submission as to the ways in which, having regard to her reasons, his Honour's reasons for judgment in the Gudjala People # 2 case impacted upon the Delegate's reasons and how the outcome may have differed in light of the observations of the Full Court further consideration of this subject is not, in my opinion, warranted. 65 It was further submitted on behalf of the Applicant that the State was aware of the status of the application. 66 It is relevant to note that the State has not moved under s 190F(6) to strike out the application but neither is it necessary that it do so. The Court is empowered under this sub-section to dismiss an application of its own motion. That may perhaps evidence a recognition by the Parliament that, even where the claim made in an application has proved incapable of furnishing, even at the registration stage, a factual basis for the assertions mentioned in s 190B , a respondent body politic may be unable or unwilling to seek dismissal of that application. If so, that recognition is unarticulated in secondary materials.