McIntyre, Greg; Ritter, David; Shenier, Paul --- "Administrative Avalanche: The Application of the Registration Test under the Native Title Act 1993 (Cth)" [1999] IndigLawB 31; (1999) 4(20) Indigenous Law Bulletin 8

• Administrative Avalanche: The Application Of The Registration Test Under The Native Title Act 1993 (Cth)
• The Purpose Of The Registration Test
• The Statutory Content Of The Registration Test
• Procedural Test:
• Merits-Based Test:
• Evidence/evidentiary Requirements
• Registration Test Decisions
• The Approach Of The Nntt Registrar And Delegates
• Administrative Burden On Representative Bodies
• Problems With Group Definition
• Conclusion

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Administrative Avalanche:
The Application of the Registration Test under the Native Title Act 1993 (Cth)

By Greg McIntyre, David Ritter and Paul Sheiner.

The Native Title Amendment Act 1998 (Cth) requires the Registrar of the National Native Title Tribunal ('NNTT') to decide whether or not to accept a native title determination application for entry on the Register of Native Title Claims^[1]. This new requirement and the approach which the NNTT has taken in making these decisions has led to a situation where:

• NT representative bodies are being forced to bear a tremendous administrative burden; and
• common law holders of native title are at risk of being denied protection under the Native Title Act 1993 (Cth)('the NTA') of their rights and interests.

The Purpose of the Registration Test

The purpose of the registration test was to replace the acceptance test, then in place under the NTA, and set a harder test for claimants to meet before they could access the right to negotiate.

In the light of the High Court's Waanyi decision^[2] and the Federal Court's decision in Northern Territory v Lane & Ors (1995), the acceptance test allowed the NNTT little discretionary power to 'weed out' those claims which lacked reasonable prospects of success or were procedurally deficient.

There were calls from both indigenous and non-indigenous interests for some kind of a threshold test for native title claims. For instance the National Indigenous Working Group acknowledged in its response to the Wik decision^[3] and the Government's proposed amendments to the NTA that the original Act needed various changes in order to minimise overlapping and ambit claims.^[4] By conferring on the NNTT the power to 'screen' applications using the registration test, it was hoped that claimant groups holding the right to negotiate would stand a reasonable chance of having a native title determination in their favour in respect of the land claimed in their application.

It was never intended that the registration test would operate so as to deny persons who are native title holders at common law, as groups or individuals, statutory protection under the NTA of their native title rights and interests. ^[5]

The Statutory Content of the Registration Test

The registration test under Part 7 of the NTA, introduced by the NTAA, requires the Registrar to use a procedural and merits-based assessment of an application.

Procedural test:

Prescribed under s190C and requires that the Registrar be satisfied that the application contains all the information required by ss61 and 62 of the NTA,^[6] which includes:

• a description of the external and internal boundaries together with a map of the claim area.
• a description of the native title rights and interests claimed.
• a description of the factual basis upon which the native title rights and interests claimed, exist, and a continuity of traditional association of the claim group and their ancestors with the claim area.
• details of the current activities of the claim group on the claim area.
• details of other applications in relation to the area; and
• details of notices of future acts under s29 relating to the area.

The Registrar must also be satisfied that:

• person included in the native title claim group on the application was a member of the native title claim group on any overlapping application that has been registered;^[7] and
• the application has been certified by the relevant representative body or that the applicants are authorised by the native title claim group.^[8]

Merits-based test:

Prescribed under s190B and requires that the Registrar be satisfied of a number of matters, including that:

• area in respect of which native title is claimed is clearly defined in the application;^[9]
• native title claim group is described sufficiently clearly;^[10]
• native title rights and interests claimed are readily identifiable;^[11]
• factual basis set out in the application in support of the claimed native title rights and interests is sufficient to support the assertion that those native title rights exist;^[12]
• least one member of the claim group has or previously had a traditional physical connection with some part of the land or waters covered by the application ;^[13]
• is a prima facie case as to the existence of native title;^[14]
• title is not claimed in respect of areas where native title has been extinguished under the NTA or at common law^[15] and/or a native title determination has already been made;^[16] and
• must be stated in the application whether the native title rights and interests claimed are regulated at common law and under the NTA by legislation, competing grants or statutory interests.^[17]

If an application for a determination of native title fails the registration test it remains in the Federal Court for determination but the applicants lose the right to negotiate and other procedural rights with respect to future acts that are available under the NTA. These rights can then only be granted after a determination by the Federal Court that native title exists and that granted a prescribed body corporate is to hold the native title or act as agent for the common law holders of the native title. The applicant can seek review by the Court under s 190D(2) of the NTA of a decision to deny registration and review is otherwise available under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Not all native title claims around the country are considered for registration simultaneously. Part 4, Schedule 5 of the NTA, stipulates time periods within which the Registrar must apply the threshold test to existing native title claims.^[18]

In order to meet the registration test in respect of existing claims, claimants are compelled to seek formal amendment of the application in the Court^[19].

Evidence/Evidentiary Requirements

In applying the registration test, the Registrar must have regard to the following:

Information contained in the application and in any other documents provided by the applicant;^[20]

• information obtained by the Registrar as a result of any searches conducted by the Registrar or registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory;^[21]
• the extent that it is reasonably practicable in the circumstances - any information supplied by the Commonwealth, a State or a Territory that, in the Registrar's opinion is relevant to whether any one or more of the conditions set out in s190B or s190C are satisfied in relation to the claim;^[22] and
• other information as he or she considers appropriate.^[23]

Registration Test Decisions

The Registrar and Tribunal staff to whom the Registrar has delegated his power under s99 of the NTA ('the delegates') have, to the knowledge of the authors at the time of writing this article, made eighteen substantive decisions on the registration of claims. As many as 600 other claims are awaiting registration nationally.

The appropriateness of the registration test decisions should be assessed by reference to the following three criteria:

• purpose of the registration test to deny any procedural rights including the right to negotiate to claims which are uncertain, by reason of procedural deficiencies, or lacking reasonable prospects of success.
• requirements in s109 of the Act stipulating that the NNTT 'must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way', that it 'may take into account the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders' and that it 'is not bound by technicalities, legal forms or rules of evidence'.
• main objects of the NTA as set out in section 3, 'to provide for the recognition and protection of native title' and ' to establish a mechanism for determining claims to native title'.

In the view of the authors some of the decisions to date rate poorly when judged by such criteria.

The Approach of the NNTT Registrar and Delegates

There is no doubt that the registration test is one of a number of factors contributing to a reduction in the number of overlapping claims.^[24] However, the decisions of some of the delegates to date go well beyond what is required for the reduction of overlapping claims and the efficient operation of the Act.

The NNTT has adopted an extensive array of procedures governing how it deals with the registration test. This prescriptive approach is reflected in some of the decisions made by delegates so far, and has intensified the burden on Representative Bodies established under the NTA.

Administrative Burden on Representative Bodies

The logistical implications for native title claimant groups and representative bodies involved in the registration test are enormous. This is demonstrated dramatically in a recent submission by the Kimberley Land Council ('KLC'), which states that KLC

...is required under the Native Title Act to re-register, within the next six months, twenty-seven country native title claims and fifty-five polygon claims...Sixteen specific tasks must be completed in order to gather and collect the information required about the native title claimants and produce requisite forms and documents... The completion of the sixteen-step process for each claim will require the following number of work days for various staff and consultants in the KLC: 288 consultant days, 597 legal officer days; 377 project development officer days; and 236 field officer days.^[25]

Most delegates are taking the view that affidavits deposing to the matters set out in s62(1)(a) of the NTA must be sworn or affirmed by each of the persons who are applicants.^[26] However it is arguable that only a single affidavit is required on behalf of the applicants.^[27]

Many field-based practitioners have also found it difficult to meet the NNTT's request for an 'objective means of ascertaining' membership of a claimant group^[28].

Problems with Group Definition

In the decisions to date, delegates have taken different approaches to the definition of the native title claim group, some of which are inconsistent with requirements for proof of common law native title under the NTA.

The issue of group definition arises in different contexts in the registration test. A key requirement of the procedural part of the registration test is that the applicant/s making the application be 'authorised' to make the application by the claimant group. To this end, the application must either name the persons who have so authorised the applicant/s; or

otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.^[29]

The merits-based part of the test requires that the Registrar be satisfied that the persons in the native title claim group are named in the application, or that the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.^[30] This aspect of the test is designed to ensure that the applicants' case, if established on the evidence at trial, would be capable of showing that they have remained 'an identifiable community'. This is a requirement for proof of native title at common law set out in the judgment of Brennan J in Mabo v Queensland (1992).^[31]

In Ward v Western Australia (1999),^[32] Lee J applied the following principles relevant to group definition:

• The NTA is not concerned with the creation of a new statutory form of title. The definition of native title in the NTA reflects the elements of native title at common law. Persons determined to hold native title under the NTA are therefore the common law holders.
• community that holds native title must be 'identifiable'. However, difficulties in proving membership of that community will not prevent that community from being recognised as holding native title.
• descent' does not constitute an exclusive test for defining the community that holds native title.
• laws and customs upon which native title are based are dynamic and not static.
• manner of operation of the 'internal' traditional laws and customs of a community including those laws and customs which govern membership of the community is irrelevant to a determination that native title exists.

The approach of the Registrar and delegates in, for instance, the Dja Dja Wurung decision,^[33] has been to require claimants to meet a higher threshold than that required for proof of native title at common law. In that decision it was held that the Act requires the claimant group to be defined by reference to biological descent; and/or by rules or principles by which adoption, and other customary means of inclusion such as birth and marriage, are recognised. Such rules must be identified sufficiently clearly so that they can be applied by persons outside the claimant group in order to determine whether or not a particular person is or is not a member of that group.

Such an interpretation of the Act is patently inconsistent with the principles set out in the Ward decision summarised above. The result is likely to be that common law holders of native title are denied any statutory protection under the NTA of their native title rights and interests pending a native title determination by the Federal Court.

Conclusion

In our opinion, the Registrar and his delegates are paying too much attention to issues of form and process and fine interpretations of legislative formulae when applying the registration test. Instead, they should be focusing more clearly on the beneficial objects of recognising and protecting native title,^[34] and their obligations as administrative decision-makers to take into account international standards requiring the protection of indigenous property interests in accordance with their unique communal customs and traditions.^[35] It should not be necessary for claimant groups and representatives bodies to have to turn again to the Court in order to ensure that their claims receive the benefit of fair and efficient administrative decision making.

Greg McIntyre, David Ritter and Paul Sheiner are members of the Western Australian Native Title Support Team set up to assist Native Title representative bodies in Western Australia. This paper is based on a submission to be made to the Commonwealth Parliamentary Joint Committee on Native Title and the Land Fund in relation to the effectiveness of the National Native Title Tribunal by the WA Native Title Support Team.

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^[1] See: Part 7 of the Native Title Act 1993 (Cth).

^[2] North Ganalanja Aboriginal Corporation v Queensland (1995-6) 185 CLR 595.

^[3] Wik Peoples v Queensland (1996) 187 CLR 1.

^[4] National Working Group on Native Title, Coexistence - Negotiation and Certainty: Indigenous Position in Response to the Wik Decision and the Government's Proposed Amendments to the Native Title Act 1993, April 1997.

^[5] See: NTAA Second Reading Speech, House of Representatives, Monday 9 March 1998 at Hansard 784-5.

^[6] Section 190C(2).

^[7] Section 190C(3).

^[8] Section 190C(4) and (5).

^[9] Section 190B(2).

^[10] Section 190B(3).

^[11] Section 190B(4).

^[12] Section 190B(5).

^[13] Section 190B(7).

^[14] Section 190B(6).

^[15] Sections 190B(8),190B(9)(c).

^[16] Sections 190B(8).

^[17] Sections 190B(8) and (9).

^[18]Transitional Provisions, Part 4 Item 11(3-7).

^[19] See Strickland & Nudding v The State of Western Australia [1999] FCA 221.

^[20] Section 190A(3)(a).

^[21] Cf s66(2)(c).

^[22] Section 190A(3)(c).

^[23] Section 190A(3).

^[24] A large number of orders consolidating and combining applications have been made by the Federal Court. However, no formal statistics are available on the extent of the reduction. Other factors contributing to this reduction include the greater effectiveness of representative bodies and the better understanding of native title flowing from the first native title determinations by the Court in contested matters.

^[25] Submission to the Joint Parliamentary Committee on Native Title and the Land Fund, Broome, 13 April 1999.

^[26] Cf Western Wakka Wakka People decision, NNTT, March 1999.

^[27] See Re Worimi People (2) NTS [110.025], but compare Explanatory Memorandum, para 25.30.

^[28] Personal comment to the authors from Julie Finlayson and solicitors assisting with claims in Kimberley and Eastern Goldfields of Western Australia.

^[29] Section 61(4).

^[30] Section 190B(3).

^[31] [1992] HCA 23; 175 CLR 1 at 61.

^[32] [1998] FCA 1478; 159 ALR 483.

^[33] NNTT, 4 December 1998.

^[34] NTA s 3

^[35] Mabo (No.1) (1988) 166 CLR 186; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.