Gardiner v Taungurung Land and Waters Council

• Jurisdiction: Australia Federal only
• Judgment Date: 09 February 2021
• Neutral Citation: [2021] FCA 80
• Court: Federal Court
• Date: 09 February 2021

FEDERAL COURT OF AUSTRALIA

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

File number(s):	VID 384 of 2020
Judgment of:	MORTIMER J
Date of judgment:	9 February 2021
Catchwords:	NATIVE TITLE – application for judicial review of decision of delegate of the Native Title Registrar – decision to accept Indigenous Land Use Agreement for registration – task of Registrar under s 24CK(2) of the Native Title Act 1993 (Cth) – s 203BE(5)(a) of the Native Title Act – meaning of “all reasonable efforts” to identify people who hold or may hold native title – application upheld.
Legislation:	Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court Rules 2011 (Cth) Native Title Act 1993 (Cth) ss 24CJ, 24CK, 203BE(5), 223, 251A Traditional Owner Settlement Act 2010 (Vic)
Cases cited:	AQV15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 Bright v Northern Land Council [2018] FCA 752 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; 235 FCR 40 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 DCU18 v Minister for Home Affairs [2020] FCA 1817 De Rose v State of South Australia (No 2) [2005] FCAFC 110; 145 FCR 290 Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69 Gardiner v Attorney-General (No 3) [2020] VSC 516 Gardiner v Attorney-General [2020] VSC 224 Kemppi v Adani Mining Pty Ltd (No 2) [2019] FCAFC 117 Mabo v State of Queensland (No 2) [1992] HCA 23; 175 CLR 1 McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172 McGlade v South West Aboriginal Land & Sea Corporation (No 2) [2019] FCAFC 238; 374 ALR 329 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Minister for Immigration and Multicultural Affairs v Bhardwarj [2002] HCA 11; 209 CLR 597 Moses v State of Western Australia [2007] FCAFC 78; 160 FCR 148 Neowarra v State of Western Australia [2003] FCA 1402 Northern Land Council v Quall [2019] FCAFC 77 Northern Land Council v Quall [2020] HCA 33 Northern Territory v Alyawarr, Kaytetye, Warymungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442 NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 QGC Pty Ltd v Bygrave (No 3) [2011] FCA 1457; 199 FCR 94 Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26; 266 ALR 537 Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 Tickner v Chapman [1995] FCA 1726; 57 FCR 451 TTY167 v Republic of Nauru [2018] HCA 61; 362 ALR 246 Widjabul Wia-Bal v Attorney-General of NSW [2020] FCAFC 34; 376 ALR 204
Division:	General Division
Registry:	Victoria
National Practice Area:	Native Title
Number of paragraphs:	321
Date of last submission/s:	30 November 2020
Date of hearing:	10 December 2020
Counsel for the Applicants:	Ms A Sheehan with Ms S Armstrong
Solicitor for the Applicants:	Holding Redlich
Counsel for the First Respondent:	Ms E Longbottom QC with Mr M Albert
Solicitor for the First Respondent:	First Nations Legal & Research Services
Counsel for the Second Respondent:	Mr P Willis SC with Ms L Bennett
Solicitor for the Second Respondent:	Victorian Government Solicitor’s Office

ORDERS

		VID 384 of 2020
BETWEEN:	MARGARET GARDINER First Applicant ; GARY MURRAY Second Applicant ; VINCENT PETERS (and another named in the Schedule) Third Applicant
AND:	TAUNGURUNG LAND AND WATERS COUNCIL (ABORIGINAL CORPORATION ICN 4191) First Respondent ; STATE OF VICTORIA Second Respondent ; NATIVE TITLE REGISTRAR Third Respondent

order made by:	MORTIMER J
DATE OF ORDER:	9 February 2021

THE COURT DIRECTS THAT:

1. 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.

2. The respondents each file and serve submissions, limited to 5 pages, by 4pm on 23 February 2021.

3. The applicants file and serve submissions, limited to 5 pages, by 4pm on 9 March 2021.

4. The respondents file and serve any submissions in reply, limited to 3 pages, by 4pm on 16 March 2021.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1. This is an application for judicial review of a decision by a delegate of the Native Title Registrar dated 30 April 2020, to register the Taungurung Settlement Indigenous Land Use Agreement under s 24CK(1) of the Native Title Act 1993 (Cth). The Taungurung ILUA is an “area ILUA” under the Native Title Act and is a key component of a wider settlement under the Traditional Owner Settlement Act 2010 (Vic). While the parties did not address in detail the precise effect of the ILUA according to its terms, it is apparent that the ILUA provides for the surrender of native title over the area it covers in certain circumstances and the extinguishment of that title; that no native title is being recognised by the agreement; and that no compensation is payable under the Native Title Act. In return the State of Victoria has agreed to provide a range of economic and non-economic benefits to those who fall within the definition of the “traditional owner group” in the ILUA, through a corporation established as part of the settlement. It is not in dispute that the ILUA is intended to preclude any future claims...