Gardiner v Taungurung Land and Waters Council [2021] FCA 80
Gardiner v Taungurung Land and Waters Council (No. 2) [2021] FCA 253
What you need to know
- A$34 million settlement agreement between the Victorian Government and the Taungurung People under the Traditional Owner Settlement Act 2010 (Vic) is under threat as a result of a challenge to the National Native Title Tribunal's decision to register the ILUA that underpins the deal.
- In Gardiner v Taungurung Land and Waters Council [2021] FCA 80, the Federal Court held that the delegate made an error in the way she approached the question of whether the representative body certifying the ILUA had made 'all reasonable efforts' to identify ‘all persons who hold or may hold native title’ in relation to the land and waters covered by the agreement. In circumstances where there was no native title claim and not much research, the efforts required of the representative body were considerable.
- In Gardiner v Taungurung Land and Waters Council (No. 2) [2021] FCA 253, the Federal Court ordered that the ILUA be removed from the ILUA Register, and the application for registration be remitted for consideration accordance with the law.
What you need to do
- With the Taungurung ILUA removed from the ILUA Register, the Taungurung Land Use Activity Agreement, which has applied to 11% of Victoria's public land since April 2020, is in limbo. It can no longer operate to replace the Native Title Act 1993 (Cth)'s future act regime as a means of validating the grant of new interests in the settlement area.
- Watch out for the outcome of the application for registration of the Taungurung ILUA, which is now back before the Registrar. However, don't hold your breath for a speedy re-registration. It will be hard for the Registrar to decide to register the ILUA, given the Federal Court's detailed analysis of the of the certification process.
Gardiner v Taungurung Land and Waters Council [2021] FCA 80 (Taungurung Decision), the Federal Court has once again been asked to consider whether an Indigenous Land Use Agreement (ILUA) under the Native Title Act 1993 (Cth) was properly registered, given questions as to its certification by a representative body. This dispute follows a number of similar disputes relating to ILUAs in Queensland, the Northern Territory and Western Australia where disaffected Traditional Owners have argued that ILUAs were not properly authorised by the native title holders for the ILUA Area.
For more information about those earlier cases, see our article Delegation of the ILUA certification function: the end of uncertainty and our April 2020 Native Title Year In Review 2019 article Full Court resolves many uncertainties around ILUA registration and certification but the High Court to review delegation issue.
Taungurung ILUA underpinned the recognition and settlement agreement for 20,000 km2 across central Victoria
In October 2018, the Victorian government entered into an ILUA with the Taungurung Clans Aboriginal Corporation, which represented the Taungurung Traditional Owner group. The ILUA was part of a broader $34 million reconciliation and settlement agreement under the Traditional Owner Settlement Act 2010 (Vic) (TOS Act)
The Taungurung ILUA covers an area of more than 20,000 square kilometres consisting of land and waters south of the Murray River from Rochester to Wangaratta to the Great Dividing Range. The Taungurung ILUA included an agreement that the Taungurung people would not exercise their native title rights over the ILUA area in exchange for economic and non-economic benefits. Once registered, the ILUA is binding on all people who hold native title in the ILUA area, irrespective of whether they are parties.
The ILUA was authorised at a meeting of the Taungurung people on 20 October 2018. After this, First Nations Legal and Research Services (First Nations Legal), as the representative body, certified that the requirements which allow an ILUA to be registered had been met.
During the ILUA notification period, there were numerous objections to registration, including by the applicants in these proceedings. The applicants' central assertion was that the Taungurung ILUA extended beyond Taungurung country and that the Dhudhuroa, Waywurru and Ngurai Illum Wurring people hold interests separate from those of the Taungurung in the settlement area, yet they were not included in the TOS Act process nor authorised the ILUA.
Despite these objections, the Tribunal ultimately registered the Taungurung ILUA, on the basis that it was not up to the Registrar to make an assessment of who holds native title in the agreement area.
This is the second set of proceedings by the applicants in respect of the Taungurung settlement agreement. In 2020, they sought judicial review of the Victorian Attorney General's decision under the TOS Act to enter into the Settlement Agreement. That proceeding has been stayed pending the outcome of the Federal Court's decision on ILUA registration discussed in this article.
Traditional Owner Settlement Act intended to be an alternative to the Native Title Act in Victoria
This dispute revolves around the uneasy interrelationship between the TOS Act and the Native Title Act. The TOS Act has its origins in the failure of the Yorta native title claim over land and waters in northern Victoria and southern New South Wales. It was enacted as an alternative to the Native Title Act, with a different threshold for recognition as Traditional Owners. The prospect of using the resources that would otherwise have been consumed by native title litigation to achieve more socially productive outcomes was compelling for the State of Victoria at the time.
Beyond recognition, the TOS Act establishes a mechanism through which Traditional Owner groups can negotiate a settlement which cover covers input into future land use, joint management of parks, funding and land transfers. The Traditional Owner entity will also be recognised as a registered Aboriginal party under the Aboriginal Heritage Act 2006 (Vic).
Because the TOS Act settlement involves the giving up of rights by Traditional Owners and also alters the Native Title Act future act validation processes, the settlement needs to be given effect by an ILUA registered under the Native Title Act. Crucially, once registered on the Tribunal's ILUA Register, an ILUA binds all native title holders.
To be registered, the Tribunal must be satisfied that the people who will be bound by the ILUA have authorised it. For the Taungurung ILUA, that assurance was intended to come through certification by First Nations Legal. To properly certify the ILUA, they must be satisfied that all reasonable efforts had been made to ensure that all persons who hold or may hold native title in the area had been identified and those persons have authorised the ILUA.
The Federal Court found that the Taungurung ILUA should not have been registered
This was a judicial review application so the key question was whether the delegate of the Registrar of the Tribunal properly understood and applied the law before making her decision to register the ILUA, including whether she appropriately engaged with the material in the many formally made objections.
The Court ultimately found that the delegate made two material and significant errors of law which undermined the decision to register the Taungurung ILUA.
The "wrong question"
The Court found that the delegate had approached the task of assessing whether "all reasonable efforts" had been made by First Nations Legal to identify those who hold or may hold native title in the agreement area, too narrowly.
The Court observed that the delegate did not properly engage with research put before her by the objectors because she did not consider that she needed to form a view as to whether the Taungurung are the right people for the agreement area or to 'weigh the research' of First Nations Legal 'against the contradictory assertions'. However, the Court found that matters as to who may hold native title in the agreement area were capable of going to the reasonableness of the efforts made by First Nations. As such, the delegate should have engaged with the objectors' material in forming a conclusion on the appropriateness of First Nations Legal's certification.
Failing to consider affidavit material
The applicants also succeeded on a second related ground.
The Court held that the delegate was required to actively consider the affidavit material submitted as part of the formal objection process. Instead, the delegate had relied on First Nations Legal's statements about the thoroughness and accuracy of its research and of its 'obviously deficient' database of interest holders, without sufficiently engaging with the objectors' affidavit evidence.
In fact, those affidavits included informed views that the Taungurung and the Ngurai Illum Wurrung were properly seen as separate and distinct groups. Failure to consider the affidavit material contributed to the 'wrong question' error referred to above. The affidavits included factual matters for the delegate to weigh. However, while her decision referenced the affidavits, the Court concluded that there was no active intellectual engagement with the material. Failure to do this meant she failed to have regard to a mandatory consideration.
Can the ILUA be removed from the ILUA Register?
When handing down the first decision, the Court was unsure whether it could order that the Taungurung ILUA be removed from the ILUA Register, given the limited criteria for removal in the Native Title Act.
In mid-March 2021, the Court handed down its decision on this point. In the end, it was accepted by all parties that the Court's jurisdiction under the Administrative Decisions (Judicial Review) Act 1997 (Cth), under which the application had been brought, was not limited by the terms of the Native Title Act. The Court ordered that the decision of the delegate be set aside and the ILUA removed from the Register until the ILUA registration application is considered once again.
Where to from here?
The $34 million settlement agreement between the Victorian Government and the Taungurung People under the TOS Act is teetering.
While the Taungurung ILUA was registered, interests granted in accordance the new regime will likely be valid from a Native Title Act perspective.
However, it looks like the Victorian Government may need to adopt a more inclusive approach or reduce the settlement area if it wants to proceed with a TOS Act settlement involving the Taungurung people.
More broadly, although playing out as an administrative law issue, at the heart of this proceeding was whether all the right people were involved in the Taungurung settlement. The distinct impression from the Court's review of the evidence was that the State and First Nations Legal may have overlooked a separate Traditional Owner group. With Victoria moving into treaty making, there will be a lot of pressure on First Nations communities and Government to get this right.
Authors: Clare Lawrence, Partner and Samantha Marsh, Lawyer.
