Gardiner v Taungurung Land and Waters Council [2021] FCA 80

The delegate of the Native Title Registrar erred in law by failing to actively and intellectually engage with the affidavit evidence and submissions of the objectors regarding the identification of persons who may hold native title within the ILUA area, and by unduly relying on broad or general submissions/assurances of First Nations Legal and the State without sufficient scrutiny. These failures meant the delegate did not properly perform the statutory task under s 24CK(2)(c) Native Title Act of forming an independent opinion as to whether all reasonable efforts had been made to identify all persons who hold or may hold native title, contrary to mandatory consideration obligations under...

Parties: First Applicant: Margaret Gardiner; Second Applicant: Gary Murray; Third Applicant: Vincent Peters; Fourth Applicant: Elizabeth Thorpe; First Respondent: Taungurung Land and Waters Council (Aboriginal Corporation ICN 4191); Second Respondent: State of Victoria; Third Respondent: Native Title Registrar
Jurisdiction: Australia
Judgment Date: 09 February 2021
Procedural Posture: Judicial Review / Post Trial Decision, Post Hearing, Orders for Further Submissions on Relief
Outcome: Application for judicial review upheld on some grounds; relief not yet determined pending further submissions.
Legal Topics: Indigenous Land Use Agreement (ilua) Registration, Judicial Review—procedural Fairness, Onus in Administrative Decisions—objections to ILUA Registration, Identification of Native Title Holders, Reasonable Efforts Standard Under S 203 Be(5)(a) Native Title Act

Aboriginal and Torres Strait Islander Law Native Title Administrative Law Indigenous Land Use Agreement (ilua) Registration Judicial Review—procedural Fairness Onus in Administrative Decisions—objections to ILUA Registration Identification of Native Title Holders Reasonable Efforts Standard Under S 203 Be(5)(a) Native Title Act

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Parties

Margaret Gardiner

First Applicant

Gary Murray

Second Applicant

Vincent Peters

Third Applicant

Elizabeth Thorpe

Fourth Applicant

Taungurung Land and Waters Council (Aboriginal Corporation ICN 4191)

First Respondent

State of Victoria

Second Respondent

Native Title Registrar

Third Respondent

Procedural Posture

Judicial Review / Post Trial Decision, Post Hearing, Orders for Further Submissions on Relief

Legal Issues

1 Whether the delegate of the Native Title Registrar erred in law or denied procedural fairness by approving registration of the Taungurung ILUA under s 24CK of the Native Title Act 1993 (Cth) despite objections.
2 Whether the delegate applied the correct legal test for 'all reasonable efforts' under s 203BE(5)(a) Native Title Act.
3 Whether the delegate actively and intellectually engaged with relevant affidavit evidence presented by objectors, as required by law.

Ratio Decidendi

Court Disposition

Application for judicial review upheld on some grounds; relief not yet determined pending further submissions.

Orders

The parties provide submissions on the question of the appropriate relief in light of the Court's reasons for judgment, limited to 5 pages each, including submissions as to costs, and whether the question of relief should be determined on the papers or after a further oral hearing.
The respondents each file and serve submissions by 23 February 2021.