McGlade v Native Title Registrar

Case [2017] FCAFC 10


FEDERAL COURT OF AUSTRALIA

McGlade v Native Title Registrar [2017] FCAFC 10

File numbers: WAD 137 of 2016
WAD 138 of 2016
WAD 139 of 2016
WAD 140 of 2016
Judges: NORTH, BARKER AND MORTIMER JJ
Date of judgment: 2 February 2017
Catchwords: NATIVE TITLE – South West Native Title Settlement – registration requirements for indigenous land use agreements (area agreements) (ILUAs) – where meeting resolutions authorising ILUA provided not necessary for all persons comprising the registered native title claimant or claimants to sign the ILUA – where ILUA signed in accordance with meeting resolutions but not signed by all persons who jointly comprised registered native title claimant or claimants – who must be party to an ILUA under s 24CD of the Native Title Act 1993 (Cth) – whether each individual comprising registered native title claimant or claimants must be party to an ILUA – whether deceased individual comprising registered native title claimant or claimants must be party to an ILUA – whether individual comprising registered native title claimant or claimants must sign an ILUA prior to application for registration being made
Legislation:

Native Title Act 1993 (Cth) ss 24AA(3), 24BD(2), 24CA, 24CB, 24CC, 24CD(1), 24CD(2), 24CD(3), 24CD(5), 24CE, 24CG, 24CG(1), 24CG(3), 24CK, 24CL(3), 24CM, 24DC(2)(c), 24EA, 24EB(1), 24FA, 24NA, 25(1), 25(2), 25(3), 25(4), 29(2)(b), 30(1), 32, 38, 39, 61, 61(1), 61(2), 62A, 66B, 87A(4), 203B, 203BE(1), 203BE(5), 223, 251, 251A, 251B, 253

Federal Court of Australia Act 1976 (Cth) ss 20(1A), 25(6)

Federal Court Rules 1979 (Cth) O 6 r 9

Federal Court Rules 2011 (Cth) r 38.01

Property Law Act 1969 (WA) s 9

Native Title Amendment Bill 1997 (Cth)

Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) reg 8(1), 8(2), 8(3), 8(4), 8(6), 8(7)

Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27

Anderson and Others v Queensland and Others (2011) 197 FCR 404 at [62]; [2011] FCA 1158

Ankamuthi People v State of Queensland and Others (2002) 121 FCR 68 at [8]; [2002] FCA 897

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1

Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473

R v Gough; Ex parte Australasian Meat Industry Employees’ Union [1965] HCA 52; 114 CLR 394

Australian Woollen Mills Pty Ltd v Commonwealth [1954] HCA 20; 92 CLR 424

Bennell v Western Australia [2006] FCA 1243; 153 FCR 120

Bodney and Others v Bennell and Others (2008) 167 FCR 84; [2008] FCAFC 63

Brown v State of SouthAustralia [2009] FCA 206

ButchullaPeople v Queensland and Others (2006) 154 FCR 233; [2006] FCA 1063

Carr v Western Australia [2007] HCA 47; 232 CLR 138

Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378

Chaff and Hay Acquisition Committee v JA Hemphill & Sons Pty Ltd [1947] HCA 20; 74 CLR 375

Chapman and Others v…

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AGLC
McGlade v Native Title Registrar [2017] FCAFC 10
Case
[2017] FCAFC 10
Decision Date

CaseChat Overview and Summary

In McGlade v Native Title Registrar, the applicants challenged the registration of the South West Boojarah #2 Indigenous Land Use Agreement (ILUA) under the Native Title Act 1993 (Cth). The applicants argued that the ILUA did not comply with the registration requirements set out in s 24CD of the Act, as not all persons comprising the registered native title claimants had signed the agreement. The case centred on the interpretation of s 24CD, which requires that each person comprising a registered native title claimant must be a party to an ILUA. The applicants contended that if resolutions limiting the registered native title claimants' authorisation to act were valid, they could be relevant to an application under s 66B to remove an applicant. However, the applicants maintained that whether such resolutions are relevant and to what effect is a matter for judicial determination under s 66B, not a substitute for making an application and determining it.

The court was required to determine whether each individual comprising the registered native title claimants must be a party to an ILUA under s 24CD, whether deceased individuals must be parties, and whether individuals must sign an ILUA prior to application for registration. The applicants argued that the decision in QGC Pty Ltd v Bygrave should not be followed, as it held that the requirement in s 24CD was satisfied if at least one of the persons named as the applicant in the Register for the relevant claim was a party to the ILUA. The applicants contended that the purpose of s 24CD is to enable the registered native title claimants to be named as representative parties to facilitate the native title contracting group becoming bound by the agreement. They argued that the decision in Bygrave misconstrued the purpose of the provision and the role of the registered native title claimants.

The court concluded that each person comprising the registered native title claimants must be a party to an ILUA under s 24CD. The court found that the use of "must" in s 24CD(1) indicated that all persons named as the applicant in the Register for the relevant claim were obligated to become parties to the agreement. The court rejected the applicants' contention that the purpose of s 24CD was to enable the registered native title claimants to be named as representative parties, as this would contradict the common law principle that only legal persons may enter contracts. The court held that the proper construction of s 24CD was that each person comprising the registered native title claimants must be a party to the ILUA, and that if a person did not consent to be a party, their name could be removed or disregarded without affecting the status of the agreement as an ILUA.

The court declared that the South West Boojarah #2 ILUA was not an indigenous land use agreement within the meaning of s 24CA of the NTA and that the Native Title Registrar had no jurisdiction under Div 3 of Pt 2 of the NTA to register it. The court ordered that unless the parties agreed as to the costs order within 14 days, the question of costs should be determined following further submissions from the parties.

Orders

Orders of the court

1. The name of the First Respondent be changed to Native Title Registrar.

2. The answers to the questions reserved at [28] of the joint judgment of North and Barker JJ are answered as follows:

(1) yes;

(2) a declaratory order should be made. Because the Registrar is a public office holder who will comply with the law, it is not necessary for the court to cause the issue of a writ of prohibition;

(3) not applicable;

(4) unless the parties agree as to the costs order within 14 days, the question of costs should be determined following further submissions from the parties.

3. The Court declares that the South West Boojarah #2 ILUA is not an indigenous land use agreement within the meaning of s 24CA of the NTA and the Native Title Registrar has no jurisdiction under Div 3 of Pt 2 of the NTA to register it.

4. The Court orders that unless the parties agree as to the costs order within 14 days, the question of costs should be determined following further submissions from the parties.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Hypothetically, the applicants posit that if valid resolutions were passed limiting the registered native title claimants’ authorisation to act as such under s 251B, that could be relevant to an application under s 66B to remove an applicant on the grounds set out in s 66B(1)(a)(iii) or (iv). They say that whether resolutions are relevant, and if so to what effect, is required to be the subject of a judicial determination under s 66B, but that has not occurred and the resolutions are not a valid substitute for making an application under s 66B and for the judicial determination of that application.The decision in Bygrave The applicants note that in QGC Pty Ltd v Bygrave and Others (No 2) (2010) 189 FCR 412; [2010] FCA 1019, Reeves J held that the requirement in s 24CD was satisfied if at least one of the persons named as the applicant in the Register for the relevant claim was a party to the indigenous land use agreement. The applicants contend that, in this respect, the decision should not be followed. They note that Reeves J approached the statutory task, at [77], by first seeking to identify the purpose of the provisions and then asking “what construction of s 24CD serves to achieve [that] purpose”. His Honour held, at [88], that the purpose of s 24CD is to enable the registered native title claimants to “be named as representative parties as a statutory mechanism or device to provide a means by which the native title contracting group can enter into an ILUA”. He reasoned, at [84] and [88], that the registered native title claimant has “no role to play” in the indigenous land use agreement process, other than to facilitate the “native title contracting group” becoming bound by the agreement. The applicants say that, in reaching this conclusion, his Honour relied, at [66], on the common law principle that applies to contracts made on behalf of unincorporated associations and the requirement that only legal persons may enter contracts. In this regard, his Honour found, at [97]-[98], that there cannot be any “privity of contract” between the registered native title claimant and the other parties to an indigenous land use agreement; the only “privity of contract” is with the native title contracting group, being the group who authorised the making of the agreement under s 251A. Further, his Honour said that only the native title contracting group is required to assent to an indigenous land use agreement, which occurs through the authorisation of the agreement under s 251A: at [102]‑[103], [108]. His Honour said there is no requirement that any of the persons named as the registered claimants assent to or sign the agreement. The applicants say that, according to Reeves J, those persons were obligated to become parties to the agreement (whether or not they agreed to do so) by reason of the use of “must” in s 24CD(1): at [108]. The applicants say that it followed from this analysis of the purpose and operation of the requirement in s 24CD, that the proper construction of this provision was that only one person named as the applicant in the Register for the relevant claim needed to be a party to the indigenous land use agreement: at [84]. Accordingly, if a person who comprises the registered native title claimant does not consent to be a party to the agreement, that person’s name “can then be either removed or disregarded, without affecting the status of the agreement as an ILUA under the ILUA provisions of the Act”: at [123].

Ratio Decidendi

Legal Principle Established

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