Case: Western Australia v Native Title Registrar [1999] FCA 1591 ; (1999) 95 FCR 93
Outcome: discussed
In Western Australia v Native Title Registrar [1999] FCA 1591 ; (1999) 95 FCR 93 , Carr J decided that the State of Western Australia was a "person aggrieved" for the purposes of making an application for review under s 5 of the ADJR Act in respect of a decision of the Registrar to admit for registration a particular native title claim. His Honour found that the adverse effect of registration upon the State so qualified it, because as owner of the land the subject of that particular native title claim, the State was restricted in its capacity to deal with its proprietary interest, and was obliged to submit to the statutory requirements of negotiation in respect of future acts under the NT Act. Obviously, the impact upon an owner of land of an application for the determination of native title being admitted for registration under s 190A of the NT Act is different from the impact upon a person or persons in the position of the Batchelor No 1 applicants. They are competing native title claimants whose claim has been registered, and not land owners. 16 One of the reasons Carr J reached that conclusion in Western Australia v Native Title Registrar [1999] FCA 1591 ; 95 FCR 93 was that the government, being primarily responsible for the development and manner of use of the land the subject of that particular native title claim, had a "very close relationship with the subject matter" of the registration decision, and that the NT Act recognised that closeness by, for example, the requirement in s 66(2) of the Act not only that the State be notified of the application for registration, but also that it be supplied with all affidavits and documents in support of it: see at [20]. 17 A similar obligation is imposed upon the Registrar under s 66(2A) of the NT Act in relation to the relevant representative body of the area covered by the application, in this case the NLC. 18 I was referred by counsel for the Batchelor No 1 applicants to s 66(3)(a)(i) of the NT Act. Under that provision, the Registrar is obliged to give notice containing details of an application for determination of native title to any registered native title claimant in relation to any of the area covered by the application which is being assessed for registration under s 190A. I do not think that that provision operates to provide or enhance the status of the Batchelor No 1 applicants in this matter as persons aggrieved by the decision of the Registrar. That is because s 66(3) commences by saying that it is generally subject to the section. The Registrar's obligation is specifically then explained or qualified, at least in terms of the time when it must be implemented, by s 66(6)(a). Pursuant to s 66(6)(a), in the event of a claimant application, the Registrar must not comply with sub-section (3) until the Registrar has decided, in accordance with s 190A, whether or not to accept for registration the claim made in the application. In my view the position is clear. Not only is the Registrar not required by s 66(3)(a)(i) to have given notice of the Batchelor No 2 application to the Batchelor No 1 applicants, as registered native title claimants in respect of the same claim area, until the Registrar has decided whether or not to accept the Batchelor No 2 application for registration, but he is positively directed not to do so by s 66(6)(a). 19 Consequently, if the Town of Batchelor No 1 applicants are to establish that they are persons aggrieved by the decision of the Registrar, they must do so by some circumstance un-unsupported by, and perhaps even informed by, s 66(6)(a). 20 In my view, the procedural rights which they obtained by registration of the Town of Batchelor No 1 application are not, in terms, diminished by the fact of the acceptance for registration of the Town of Batchelor No 2 application. Their procedural rights under the Act remain the same. But, at a practical level, it is said that the enjoyment of those procedural rights is diminished because the persons with whom they have rights of negotiation would also have to deal with the Town of Batchelor No 2 applicants who would possess equivalent rights of negotiation. The outcomes of negotiations in relation to a future act or future acts which might be the subject of such negotiation would, it is argued, in a practical sense have to be shared or may have to be shared between the two sets of registered applicants. In my view, as a matter of commonsense, that is likely to be correct. In such negotiations, the person or entity who is the potential beneficiary of the future act is unlikely to negotiate in a way which would give each of the negotiating registered native title applicants the same benefits as if there were only one group of registered native title applicants with whom those negotiations should be conducted. To put it somewhat crudely, the potential fruits of the negotiations would probably be shared rather than doubled.