Case: R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13
Outcome: considered
Given that QWI was an active contradictor, the Delegate properly took the stance of abiding the order of the court and not wishing to be heard save if need be in respect of costs: R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 , at 17, 35-36. 12 For the reasons which follow, I have concluded that the various grounds upon which, by their amended application, the Applicants sought the judicial review of the agreement registration decision do not lead to the result that the decision should be set aside. Work done under the Traveston Dam Agreement is therefore a valid future act for the purposes of the Native Title Act . 13 The grounds of review which came to be advanced by the Applicants are set out below: 1. The First Respondent erred in law and/or improperly exercised the power conferred upon her in finding that the requirements of Section 24CG(3)(b) of the Native Title Act had been satisfied in circumstances where: (a) There was no evidence from which the First Respondent could reasonably be satisfied that the Gubbi Gubbi People and the Kabi Kabi People were part of the same wider group; (b) The First Respondent failed to take into account the following relevant considerations in reaching the conclusion that the Gubbi Gubbi People and the Kabi Kabi People were part of the same wider group: (i) That membership of the Gubbi Gubbi People was based on matrilineal descent from the apical ancestors James Crowe and Maggie Palmer whereas membership of the Kabi Kabi People was based on cognatic descent from a number of apical ancestors in addition to James Crowe and Maggie Palmer; and (ii) That the Gubbi Gubbi People have a mandatory traditional decision making process in relation to matters affecting land involving the reaching of a consensus decision by the Elders of the respective family groups within the clan without recourse to a majority vote of the group as adopted by the Kabi Kabi People when purporting to authorise the ILUA. (c) There was no evidence from which the First Respondent could reasonably be satisfied that the Gubbi Gubbi People did not adhere to a mandatory traditional decision making process as aforesaid; (d) The First Respondent failed to take into consideration the fact that the Gubbi Gubbi People both before and at the authorisation meeting disputed the decision making process adopted at the authorisation meeting and did not authorise the making of the ILUA; (e) The First Respondent concluded that there was no mandatory traditional decision making process applicable to the subject decision in reliance upon evidence that emanated from persons who where no traditional custodians of such information; (f) There was no evidence from which the First Respondent could reasonably have concluded that the Gubbi Gubbi People withdrew from the agreement making process; (g) The evidence showed that the Gubbi Gubbi People were not afforded the opportunity to separately consider the terms of the ILUA in accordance with the their mandatory traditional decision making process, in circumstances where the persons said to hold native title where encompassed by three separately represented constituent groups; (h) By reason of the matters referred to in paragraphs 1(a) (g) hereof the Applicants are not bound by the Kabi Kabi Peoples authorisation decision and did not themselves authorise the meeting of the ILUA. 2. The First Respondent erred in law and/or improperly exercise the power conferred on her in: (a) Limiting her registration decision to the criteria set out in Section 24CL of the Native Title Act ; (b) Failing to consider or properly consider whether the ILUA was an area agreement that complied with the requirements of Sections 24CB and 24CE of the Native Title Act . (c) Failing to find that the Cultural Heritage Investigation Management Agreement ("the CHIMA") component of the ILUA contravened the provisions of the ACHA and so by reason of Section 24CE of the Native Title Act , that the ILUA was invalid either in whole or in part and was thereby no an area agreement capable of being registered. (d) Failing to find that the CHIMA component of the ILUA in so far as it dealt with the regulation of Cultural Heritage matters over land where Native Title rights had been extinguished was no properly the subject matter of an area agreement pursuant to Section 24CB of the Native title Act and thereby the ILUA was not an area agreement capable of being registered. Particulars (a) The CHIMA regulates Aboriginal Cultural Heritage matters as defined in the ACHA over areas where Native Title rights have been extinguished; and (b) To the extent that the ILUA deal with areas where Native Title rights have been extinguished: (i) The Aboriginal Party under the ACHA ought to have been a party to the ILUA as required by Section 23(3)(a)(iii) of the ACHA; (ii) The Aboriginal ILUA Parties did not have standing under the Native Title Act to enter into ILUA which purported to regulate Aboriginal Cultural Heritage matters over such areas; and (iii) It is not competent for an ILUA to deal with Cultural Heritage maters properly regulated by existing State legislation over land where Native Title rights do not exist.