Have you or your Traditional Owner group recently had a request for assistance refused by a Native Title Representative Body (NTRB)?
If so, it’s important to know that the decision doesn’t have to be the end of the road. The Native Title Act 1993 (Cth) (NTA) and related legislation provide several pathways to challenge or revisit a funding decision.
Depending on your circumstances, your options may include:
- Requesting an internal review under section 203BI of the NTA;
- Submitting a fresh application to the NTRB;
- Seeking an external review through the National Indigenous Australians Agency under section 203FB of the NTA; or
- Pursuing judicial review under section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
In the sections below, we outline each of these options in detail, including when they apply, what they involve, and how they might assist your group in moving forward.
Understanding the Role and Duties of NTRBs
Section 203B of the NTA provides that NTRBs have six broad functions:
- Facilitation and assistance
- Certification
- Dispute resolution
- Notification
- Agreement-making
- Internal review
The facilitation and assistance function, described in section 203BB of the NTA, is only exercisable on request and must relate to at least part of the NTRB’s area.
Assistance can mean direct representation in court proceedings, or commonly, the provision of targeted funding. This may include:
- Funding for expert advice – for example, anthropology or heritage assessments; or
- Funding to join proceedings as a respondent – for example, to oppose an overlapping claim.
Once an assistance application is received, the NTRB is legally obligated to use its best efforts to perform that function promptly and must make a decision on the application for assistance. While the NTRB may establish internal guidelines and delegations to support its decision-making processes, any refusal of assistance must ultimately be based on cogent grounds.
Option One – Internal Review by the NTRB (section 203BI, NTA)
If an NTRB denies your request for assistance, your first step should be to request an internal review of the decision under section 203BI of the NTA. This allows the NTRB to reconsider its decision, usually by a separate committee or delegate from the original decision-maker.
The NTRB must make its internal review process publicly available. This typically means providing written reasons for its decision, which can assist you in determining your next steps.
Option Two – Submission of a Fresh Application to the NTRB
Even if your request is denied or an internal review upholds the original decision, you may still lodge a new assistance application with the NTRB. In many cases, submitting a fresh application is both quicker and more effective than pursuing an external review of a previous decision, especially where circumstances or available information have changed. This pathway can be particularly useful when there are pressing time constraints, which we understand is always an important consideration.
Importantly, a refusal of assistance from an NTRB is not evidence that your native title claim is weak.
For an example of this approach, see Dimer (Marlinyu Ghoorlie Group) v WA [2023] FCA 1073.
Option Three – External Review by the National Indigenous Australians Agency (section 203FB, NTA)
If an internal review is unsuccessful, you may apply to the National Indigenous Australians Agency (NIAA) for an external review of the decision under section 203FB of the NTA. This review is administrative in nature and focuses on the merits of the decision.
If your request relates to a native title determination application (under section 61 of the NTA), the external reviewer must consider criteria in section 203FBA(3) of the NTA, including:
- The NTRB’s priorities;
- Efficient use of its resources;
- Whether assistance would breach funding conditions under section 203CA of the NTA;
- Cost-effective resolution of native title matters;
- Managing overlapping claims; and
- Any other relevant factors.
However, the timeframes for an external review under section 203FB of the NTA can be lengthy, which may affect the overall timeline for progressing your application.
For an example of this approach, see Sullivan Edwards Native Title Claim Group v Secretary, Dept of Prime Minister and Cabinet (2015) 233 FCR 239.
Option Four – Judicial Review (section 5, Administrative Decisions (Judicial Review) Act 1977 (Cth))
If you believe the NTRB has acted unlawfully, you may apply for judicial review under section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). This process does not assess the merits of your application but instead examines whether the decision was made lawfully, fairly, and in accordance with administrative law principles.
Grounds for judicial review may include:
- failing to consider relevant factors or considering irrelevant ones;
- denial of procedural fairness (e.g. not providing an opportunity to respond to adverse material);
- an error of law; or
- unreasonableness so significant that no reasonable decision-maker could have made the same decision.
Judicial review can only be pursued after an internal review has been completed. You also have a right under section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to request a written statement of reasons for the decision.
It is important to note that there is relatively little case law on this approach in this context, and there may be significant costs involved in pursuing judicial review.
For discussion of this approach, see Miller v Goldfields Land and Sea Council Aboriginal Corporation [2014] FCA 183.
How Marrawah Law and Advisory Can Help
Decisions on funding by Native Title Representative Bodies can significantly impact Traditional Owners and claim groups, especially when they affect timely participation in native title proceedings or access to expert advice. Knowing your options and acting strategically is essential.
Marrawah Law and Advisory is a nationally recognised Indigenous-owned law firm with deep expertise in native title, cultural heritage, and land rights. We understand the practical and legal challenges involved and can provide culturally informed, strategic guidance whether you are submitting a fresh application, requesting an internal or external review, or considering judicial review.
Please feel free to contact us should you require assistance navigating these processes.
Call: (07) 4041 3088
Email: reception@marrawahlaw.com.au
Post: PO Box 74, Edge Hill QLD 4870