Kemp v Native Title Registrar [2006] FCA 939

Kemp v Native Title Registrar [2006] FCA 939

The Registrar erred in law by treating Mr Kemp as bound by the majority authorisation process adopted by the claimant group represented by Dr Davis-Hurst. Section 251A did not permit that group's majority decision to authorise the Agreement on behalf of Mr Kemp, who was not a member of that group and whose claim to be a person who may hold native title was not merely colourable. The Court declined to read s 24CG(3)(b)(i) other than literally, so Mr Kemp's authorisation was required once he was identified as a person who may hold native title in the area. The requirements of s 24CG(3)(b) had therefore not been met.

Jurisdiction
Australia
Judgment Date
25 July 2006
Procedural Posture
Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) of a Decision of the Native Title Registrar to Register an Indigenous Land Use Agreement / Reasons for Judgment and Orders Setting Aside the Registrar's Decision and Remitting the Application for Registration
Outcome
Application allowed; decision of the Native Title Registrar set aside and application for registration remitted.
Legal Topics
['registration of Indigenous Land Use Agreements' 'area Agreements' 'authorisation Under S 251 a of the Native Title Act 1993 (cth)' 'meaning of All Persons Who Hold or May Hold Native Title in S 24 Cg(3)(b)(i)' 'judicial Review for Error of Law']
['native Title' 'administrative Law' 'statutory Construction'] ['registration of Indigenous Land Use Agreements' 'area Agreements' 'authorisation Under S 251 a of the Native Title Act 1993 (cth)' 'meaning of All Persons Who Hold or May Hold Native Title in S 24 Cg(3)(b)(i)' 'judicial Review for Error of Law']

Case Brief

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Procedural Posture

Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) of a Decision of the Native Title Registrar to Register an Indigenous Land Use Agreement / Reasons for Judgment and Orders Setting Aside the Registrar's Decision and Remitting the Application for Registration

Legal Issues

  1. 1 ['Whether the Registrar erred in concluding that Mr Kemp was bound by the majority authorisation decision of the claimant group represented by Dr Davis-Hurst.' 'Whether s 24CG(3)(b) required authorisation by Mr Kemp, who was found to be a person who prima facie may hold native title in the agreement area but was not a member of the claimant group and was not a party to the Agreement.' 'Whether the words "all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement" in s 24CG(3)(b)(i) should be given their literal meaning or a more limited meaning.']

Ratio Decidendi

The Registrar erred in law by treating Mr Kemp as bound by the majority authorisation process adopted by the claimant group represented by Dr Davis-Hurst. Section 251A did not permit that group's majority decision to authorise the Agreement on behalf of Mr Kemp, who was not a member of that group and whose claim to be a person who may hold native title was not merely colourable. The Court declined to read s 24CG(3)(b)(i) other than literally, so Mr Kemp's authorisation was required once he was identified as a person who may hold native title in the area. The requirements of s 24CG(3)(b) had therefore not been met.

Court Disposition

Application allowed; decision of the Native Title Registrar set aside and application for registration remitted.

Orders

  • ['The decision of the first respondent that the agreement must be registered pursuant to s 24CL(1) of the Native Title Act be set aside.' 'The application for registration be remitted to the first respondent to be determined according to law.']