Native Title Update: Federal Court Ruling on Notification of Claims
19 March 1997

Author:	Peter van Hattem Partner, Freehill, Hollingdale & Page (Barristers & Solicitors)
Subjects:	Aborigines - land tenure (Other articles) Native title -- Australia (Other articles) Native Title Act 1993 Australia (Other articles)
Issue:	Volume 4, Number 1 (March 1997)
Category:	Current Developments

Summary of the decision

1. The Federal Court has decided that the Native Title Registrar is obliged to notify the holders of mining leases and other mining tenements of the acceptance of native title claims. The decision, WMC Resources Ltd and Central Norseman Gold Corporation Ltd v. Lane (Native Title Registrar) was delivered in Perth on 19 March 1997. Justice RD Nicholson held that the Registrar is required to give written notice to people whose interests may be affected by accepted claims, and that failure to do so affects the validity of subsequent procedures under the Native Title Act. The decision could have significant implications for many of the native title claims which have been accepted - approximately 400 throughout Australia as at mid March, of which 16 have been referred to the Federal Court for determination.

   Background to the case

2. One of the objects of the Native Title Act is to establish a mechanism for determining claims to native title. The process involves the lodgement of a claim, the acceptance of the claim, notification of affected parties, mediation of the claim and referral of the claim to the Federal Court for determination.

3. Section 66(1)(a) of the Native Title Act provides that if a native title claim is accepted, the Registrar must give notice to all persons whose interests may be affected by a determination in relation to it. Section 66(2) provides a means of giving notice. The right of an affected person to become a party in relation to the claim, so as to participate in mediations and subsequent Federal Court proceedings, arises under section 68, and can depend on being notified by the Registrar. Being excluded from the process can be highly prejudicial if significant interests are likely to be affected.

4. The Ngadju native title claim (WC 95/17) was lodged on 30 June 1995, and accepted on 25 September 1995. It covered an area of approximately 104,000 km2 in the eastern goldfields region of Western Australia. At that time, approximately 1,600 mining tenements and 18 pastoral leases were affected. The Registrar decided not to notify each of the tenement holders individually, having regard to the time and expense involved in identifying and notifying each of them.

5. Two mining companies with a large number of mining leases and other tenements in the area became aware of the acceptance of the claim after the time had expired for notifying the Registrar that they wanted to be parties. There was no procedure by which they could become parties at that stage unless they received formal notification of the claim from the Registrar. They therefore requested the Registrar to formally notify them of the acceptance so as to reopen the time period and permit them to become parties. The Registrar refused. Their application to the Federal Court under the Administrative Decisions (Judicial Review) Act for review of that decision was successful.

   Implications of the decision

   Obligation to give notice

6. Justice Nicholson held that the Registrar must give notice to all persons whose interests may be affected and can not avoid giving notice to the people specified in section 66(2)(a), who include the holders of proprietary interests registered in a register of interests in land maintained by the Commonwealth, a State or a Territory. His Honour noted that there was potential for argument on whether certain mining tenements came within that description, but as the Registrar had made no submissions on that point, his honour concluded that the obligation to give notice was not confined to mining leases, but extended to other tenements.

7. It appears to follow that every holder of a mining tenement affected by a claim at the time it is accepted is entitled to notice. The right may extend beyond holders of direct interests, to include mortgagees, option holders and farminees under registered dealings. Consequently, notifying every tenement holder might not be enough to discharge the Registrar's duty. It might also be necessary to search the register more fully, to identify the holders of registered derivative interests in tenements. Those who acquire interests subsequent to the acceptance of the claim, for example by the grant of a new tenement, the grant of a new derivative interest or the transfer of an existing tenement, might not be entitled to notice.

8. The entitlement to notice may extend to holders of other types of interests who have not been notified. For example, the holders of registered fishing, pearling and other rights, and registered mortgagees and sub-lessees of pastoral and other interests, may also have a statutory right to individual notification as a result of the decision.

   Failure to give notice

9. The immediate effect of Justice Nicholson's decision is that the two companies concerned are entitled to receive written notice of the claim from the Registrar, and within the time specified in the notice become parties in relation to it. It follows that others with registered interests, who have not been formally notified of the acceptance of a claim and who wish to become parties, can request formal notification from the Registrar. Although there may be cases in which the circumstances are distinguishable, there are probably many cases where people, particularly the holders of mining leases, have not been properly notified and have not been able to become parties.

   Further consequences

10. Of wider and far reaching significance is his Honour's observation that:

    "Examination of the language of s66(1)(a) and the scope and object of the Act lead to the conclusion the paragraph is mandatory in the sense that subsequent acts done under the Act are invalid if there is non-compliance with it."

11. The consequence appears to be that where the Registrar has not given notice to all registered interest holders as required, all proceedings under the Native Title Act subsequent to the giving of notice are invalid. Their invalidity does not depend on an interest holder seeking to be notified after the notice period has closed, but on the failure of the Registrar to give the requisite notices in the first place.

12. The proceedings subsequent to the giving of a notice include mediation conferences, the referral of contested claims to the Federal Court, and proceedings in the Federal Court culminating in an approved determination of native title. Sixteen claims have been referred to the Federal Court for determination. This decision raises the possibility that they might be fundamentally flawed, and may have to be remitted to the National Native Title Tribunal for further notification and mediation.