Case: Risk v National Native Title Tribunal (2000) FCA 1589 
Outcome: discussed
The submissions of the applicant in relation to grounds 1 and 2 can be summarised as follows : &#8226; The delegate misconstrued the principles set out in Risk , and, as a consequence, 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. This function is reserved for the Court in native title proceedings; &#8226; The delegate, because of her misconstruction of the principles in Risk , failed to appreciate that, in so far as the registration test is concerned, an assessment of the composition of a native title claim group is a function of the duty contained in s 190C (2), not s 190C (4)(b), and is limited to an assessment of the description of the claim group as it appears in the application and accompanying material; and &#8226; Having been satisfied that the requirements of s 190C (2) were met, the only matter which the delegate was required to be satisfied of in relation to section 190C (4)(b) was whether the claimant group, as it was described in the Wiri #2 Application, had authorised the making of the application. 12 In summary, the Registrar submitted in reply that s 190C (4)(b), on its proper construction, required the delegate's satisfaction that the applicant was authorised to make the application by all the other persons in the native title claim group (as that phrase is defined in ss 253 and 61 (1) of the Act ) and this requirement involved consideration of the composition of the native title claim group. In other words, the Registrar's role goes beyond merely accepting the correctness of an applicant's assertion that the persons who, according to their traditional laws and customs, hold communal rights and interests comprising the particular native title claimed are confined to those named or described in the application. 13 The term "native title claim group" for the purposes of the Act is defined by s 253 which, so far as relevant, reads: native title claim group means : (a) in relation to a claim in an application for a determination of native title made to the Federal Court - the native title claim group mentioned in relation to the application in the table in subsection 61 (1) ... 34 Finally, I do not accept the applicant's argument that the delegate misconstrued the decision of O'Loughlin J in Risk v National Native Title Tribunal (2000) FCA 1589. 35 In that case an application was made by Mr Quall which stated that the native title claim group were eight "members of the Danggalaba Clan" who were all members of the one family. O'Loughlin J held that the delegate had erred in accepting the relevant application for registration. As his Honour pointed out, although the persons who claimed to be the native title claim group also claimed to be members of the Danggalaba Clan, they did not claim to be the only members of that Clan (at [40]). Further, as his Honour noted, it was apparent to the delegate that the family of eight was not the native title claim group - but, at most, only part of the relevant group (at [60]) - which comprised approximately 140-150 people. His Honour quashed the decision of the delegate on the basis that it should not have been accepted for registration. On reviewing the decision it is clear that his Honour was correct for at least two reasons relevant to the application before me - namely that: (i) the description of the native title claim group in the application before his Honour - clearly on its face a sub-group of a larger clan - did not comply with s 61 (1) and hence could not be satisfactory to the delegate for the purposes of s 190C (2); and (ii) because on the material before the delegate it was clear that the delegate could not be satisfied within s 190C (4)(b) that the applicant was authorised to make the application by all the other persons in the native title claim group. 36 So explained, the finding of the delegate in the matter before me - relying on Risk - that she was satisfied of the Application's compliance with s 190C (2), but not satisfied of its compliance with s 190C (4)(b), is correct. Further, I do not agree with the submission of the applicant that it was clear from O'Loughlin J's reasons that, notwithstanding the continued existence of the dispute between the relevant parties, if the purported native title claim group in the Quall application had been differently framed, the delegate could, lawfully, have accepted the application for registration. On the contrary - in my view it is clear from his Honour's reasons that not only did the evidence indicate that the applicant was not authorised by all the other persons in the native title claim group, but a reframing of the application by the applicant to so contend (when he was clearly not authorised) would not have allowed the delegate to accept the application for registration (see in particular his Honour's comments at [63]-[66]). 37 Accordingly, in my view grounds 1 and 2 of the applicant's claim cannot be substantiated. 38 Ground 3 of the applicant's claim relates to grounds 1 and 2, and raises no additional issues. This is clear from the terms of ground 3 itself, and the submission of the applicant that, had the delegate not misdirected herself regarding the principles in Risk , she would have been satisfied that the requirements of s 190C (4)(b) were met. 39 I have already considered the decision of the delegate in relation to her state of satisfaction under s 190C (4)(b), and found that no error was made in the delegate's reasons for decision. 40 Like grounds 1 and 2, this ground also fails. THE COURT ORDERS THAT: 1. The application be dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 29 April 2008 Counsel for the Applicant: N Kidson Solicitor for the Applicant: D &amp; G Lawyers Counsel for the Respondents: D C Rangiah Solicitor for the Respondents: Holding Redlich Date of Hearing: 8 February 2008 Date of Judgment: 29 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/574.html