McGlade v Native Title Registrar
[2017] FCAFC 10
•2 February 2017
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 2016Judges: 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 Queensland and Others (2007) 159 FCR 507; [2007] FCA 597
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384; [1997] HCA 2
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11; 256 CLR 171
Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; 248 CLR 619
Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297; [1981] HCA 26
Daniel and Others v Western Australia and Others (2002) 194 ALR 278; [2002] FCA 1147
De Rose and Others v South Australia and Others (No 2) (2005) 145 FCR 290; [2005] FCAFC 110
Doolan and Others v Native Title Registrar and Others (2007) 158 FCR 56; [2007] FCA 192
Far West Coast Native Title Claim v South Australia and Others (No 2) (2012) 204 FCR 542; [2012] FCA 733
Ford v Perpetual Trustees Victoria Ltd [2009] NSWCA 186; 75 NSWLR 42
Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297; [1994] HCA 6
Gibbons v Wright [1954] HCA 17; 91 CLR 423
Gomeroi People v Attorney-General of New South Wales [2016] FCAFC 75
Holborow v State of Western Australia [2002] FCA 1428
Independent Commission Against Corruption v Cunneen and Others (2015) 256 CLR 1; [2015] HCA 14
Johns v Australian Securities Commission [1993] HCA 56; 178 CLR 408
Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981
Kendle and Another v Melsom and Another (1998) 193 CLR 46; [1998] HCA 13
KK and Others v Western Australia (2013) 217 FCR 115; [2013] FCA 1234
Lacey v Attorney-General (Qld) [2011] HCA 102; 42 CLR 573
Laing v State of South Australia (No 2) [2012] FCA 980
Lee and Another v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39
Lehman Brothers Holdings Inc. v City of Swan and Others (2010) 240 CLR 509; [2010] HCA 11
Lennon v South Australia[2010] FCA 743; 217 FCR 438
Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1
Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369; [2016] HCA 19
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361; [2001] NNTTA 50
Murray v Registrar of the National Native Title Tribunal and Others (2003) 132 FCR 402; [2003] FCAFC 220
North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; 185 CLR 595
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Wongatha people [2000] NNTA 75 (24 February 2000)
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
QGC Pty Ltd v Bygrave and Others (No 2) (2010) 189 FCR 412; [2010] FCA 1019
R & R Fazzolari Pty Limited v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389; [1949] HCA 33
R v Duncan; Ex parte Australian Iron and Steel Pty Ltd [1983] HCA 29; 158 CLR 535
R v Wallis [1949] HCA 30; 78 CLR 529
Re Refugee Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629
Roe and Another v Kimberley Land Council Aboriginal Corporation (2010) 215 FCR 131; [2010] FCA 809
Sambo v Western Australia [2008] FCA 1575; 172 FCR 271
Taff Vale Railway v Amalgamated Society of Railway Servants [1901] UKHL 1; [1901] AC 426
The Commonwealth of Australia v Mewett (1997) 191 CLR 471; [1997] HCA 29
The Commonwealth of Australia v Yarmirr and Others (2001) 206 CLR 1; [2001] HCA 56
Thiess v Collector of Customs and Others (2014) 250 CLR 664; [2014] HCA 12
Tigan and Others v Western Australia (2010) 188 FCR 533; [2010] FCA 993
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165
Victorian Gold Mines NL v Victoria and Others (2002) 170 FLR 1; [2002] NNTTA 30
Weribone and Others v Queensland and Others (2011) 197 FCR 397; [2011] FCA 1169
Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255
Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53
Date of hearing: 28 and 29 July 2016 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 521 Counsel for the Applicants: Mr R Merkel QC with Ms S Gory Solicitor for the Applicants: Murfett Legal Counsel for the State of Western Australia: Mr PD Quinlan SC with Ms CI Taggart Solicitor for the State of Western Australia: State Solicitor’s Office Counsel for the Third, Fourth and Fifth Respondents: Mr S Lloyd SC with Mr GJD Del Villar Solicitor for the Third, Fourth and Fifth Respondents: Clayton Utz Lawyers ORDERS
WAD 137 of 2016 BETWEEN: MINGLI WANJURRI MCGLADE (FORMERLY WANJURRI-NUNGALA)
Applicant
AND: NATIVE TITLE REGISTRAR
First Respondent
STATE OF WESTERN AUSTRALIA (SUED ON ITS OWN BEHALF AND AS REPRESENTING THE GOVERNMENT PARTIES TO THE WAGYL KAIP & SOUTHERN NOONGAR INDIGENOUS LAND USE AGREEMENT)
Second Respondent
SOUTH WEST ABORIGINAL LAND & SEA COUNCIL ABORIGINAL CORPORATION [ICN 3832] (and others named in the Schedule)
Third Respondent
JUDGES:
NORTH, BARKER AND MORTIMER JJ
DATE OF ORDER:
2 FEBRUARY 2017
THE COURT ORDERS THAT:
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 Wagyl Kaip and Southern Noongar 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.
WAD 138 of 2016 BETWEEN: MERVYN EADES
ApplicantAND: NATIVE TITLE REGISTRAR
First Respondent
STATE OF WESTERN AUSTRALIA (SUED ON ITS OWN BEHALF AND AS REPRESENTING THE GOVERNMENT PARTIES TO THE BALLARDON PEOPLE INDIGENOUS LAND USE AGREEMENT)
Second Respondent
SOUTH WEST ABORIGINAL LAND & SEA COUNCIL ABORIGINAL CORPORATION [ICN 3832] (and another named in the Schedule)
Third Respondent
JUDGES:
NORTH, BARKER AND MORTIMER JJ
DATE OF ORDER:
2 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to Native Title Registrar.
2.The answers to the questions reserved at [29] of the joint judgment of North and Barker JJ are answered as follows:
(1)yes;
(2)yes;
(3)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;
(4)not applicable;
(5)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 Ballardong People 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.
WAD 139 of 2016 BETWEEN: NAOMI SMITH
Applicant
AND: NATIVE TITLE REGISTRAR
First Respondent
STATE OF WESTERN AUSTRALIA (SUED ON ITS OWN BEHALF AND AS REPRESENTING THE GOVERNMENT PARTIES TO THE WHADJUK PEOPLE INDIGENOUS LAND USE AGREEMENT)
Second Respondent
SOUTH WEST ABORIGINAL LAND & SEA COUNCIL ABORIGINAL CORPORATION [ICN 3832] (and another named in the Schedule)
Third Respondent
JUDGES:
NORTH, BARKER AND MORTIMER JJ
DATE OF ORDER:
2 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to Native Title Registrar.
2.The answers to the questions reserved at [30] of the joint judgment of North and Barker JJ are answered as follows:
(1)yes;
(2)no;
(3)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;
(4)not applicable;
(5)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 Whadjuk People 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.
WAD 140 of 2016 BETWEEN: MARGARET CULBONG
ApplicantAND: NATIVE TITLE REGISTRAR
First Respondent
STATE OF WESTERN AUSTRALIA (SUED ON ITS OWN BEHALF AND AS REPRESENTING THE GOVERNMENT PARTIES TO THE SOUTH WEST BOOJARAH #2 INDIGENOUS LAND USE AGREEMENT)
Second Respondent
SOUTH WEST ABORIGINAL LAND & SEA COUNCIL ABORIGINAL CORPORATION [ICN 3832] (and another named in the Schedule)
Third Respondent
JUDGES:
NORTH, BARKER AND MORTIMER JJ
DATE OF ORDER:
2 FEBRUARY 2017
THE COURT ORDERS THAT:
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.
REASONS FOR JUDGMENT
NORTH AND BARKER JJ:
INTRODUCTION
Six indigenous land use agreements – commonly referred to as ILUAs – have been negotiated between the State of Western Australia and Noongar People.
Taken together, the agreements provide for a full and final settlement of all current and future claims made or to be made by Noongar People under the Native Title Act 1993 (Cth) (NTA) in respect of land and waters in the South West of Western Australia.
Four of the agreements – which are more particularly known as “area agreements” – are the subject of these proceedings, namely, the Wagyl Kaip and Southern Noongar ILUA, the Ballardong People ILUA, the South West Boojarah #2 ILUA and the Whadjuk People ILUA.
Two relate to the area covered by a single registered native title determination application (claimant application). The other two relate to the area covered by two existing, registered claimant applications.
In the case of each agreement, which may together be referred to as the ILUAs, there are a number of persons who, jointly, comprise the registered native title claimant or claimants. Each person is identified within the “Parties” description of the relevant ILUA (save in one instance where a person had passed away before the ILUA was negotiated), together with “such other persons as are duly authorised by the Native Title Agreement Group”, as the “Representative Parties” who make the agreement “for and on behalf of the Native Title Agreement Group”.
The “Native Title Agreement Group” is defined in each ILUA to mean the people described in Sch 2 to the agreement, being all of the people who:
(1)have been identified as people who hold or may hold Native Title in relation to land and waters within the Agreement Area; and
(2)having been so identified, have (within the meaning of s 251A of the NTA) authorised the making of this Agreement.
The State and the following State entities are parties to each ILUA:
·Minister for Aboriginal Affairs;
·Minister for Lands;
·Minister for Mines and Petroleum;
·Minister for Environment;
·Minister for Water;
·Conservation Commission of Western Australia;
·Conservation and Land Management Executive Body;
·Housing Authority;
·Marine Parks and Reserves Authority;
·Water Corporation; and
·Western Australian Land Authority (LandCorp).
Additionally, the South West Aboriginal Land and Sea Council (SWALSC) is a party to each ILUA. SWALSC is the relevant representative Aboriginal/Torres Strait Islander body, pursuant to the NTA, for the South West of Western Australia, including the areas the subject of the ILUAs.
As a representative body, SWALSC has a number of functions under s 203B of the NTA, which include an “agreement making function” and a “certification function”.
The agreement making function, as provided in more detail by s 203BH, is to be a party to indigenous land use agreements. In performing its agreement making function in respect of an area, it must, as far as practicable, having regard to the matters proposed to be covered by the agreement, consult with, and have regard to the interests of, persons who hold or may hold native title in relation to land or waters in that area.
Pursuant to its agreement making function, SWALSC, with certain Noongar People who are considered to hold or who may hold native title in relation to different areas in the South West, has negotiated the ILUAs with the State.
Once made, any party to an agreement may, if all the other parties agree, apply in writing to the Native Title Registrar, under s 24CG of the NTA, for the agreement to be registered on the Register of Indigenous Land Use Agreements.
Section 24EA deals with the effect of registration of indigenous land use agreements. In short, while registered, and in addition to any effect it may have apart from subs (1), an agreement has effect as if it were a contract among the parties to the agreement, and the native title holders in relation to any of the land and waters in the area covered by the agreement (who are not already parties) are also bound by it.
Under s 24CG(3)(a) and s 203BE(1)(b), all representative bodies must certify the application for registration.
In that regard, s 203BE(5) provides that:
(5)A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:
(a)all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and
(b)all the persons so identified have authorised the making of the agreement.
Sections 24CH to 24CL deal with the Registrar’s functions, powers and duties concerning registration of an agreement.
In February and March 2015, meetings of Noongar People were held for the specific purpose of enabling the persons who respectively hold or may hold native title in relation to land or waters in the areas covered by the ILUAs to authorise the making of each agreement.
At those meetings, resolutions were passed in terms relevantly identical to the terms of the resolution concerning one of the ILUAs, the Wagyl Kaip and Southern Noongar ILUA:
RESOLUTION 1
The people attending this ILUA Authorisation Meeting:
(a) acknowledge that they:
i. have been identified as people who hold or may hold native title in relation to land or waters in the area (Agreement Area) covered by the proposed South West Indigenous Land Use Agreement (Wagyl Kaip/Southern Noongar area) (Settlement ILUA);and
ii. include people who hold or may hold the common or group rights comprising such native title;
(b) confirm they are satisfied that this is a proper meeting of those people who hold or may hold native title in relation to land or waters in the Agreement Area (as indicated in the notice for the Meeting), and that this Meeting is being held to give them an opportunity to consider - and to decide whether to authorise - the making of an agreement binding on them in relation to the Agreement Area;
(c) confirm that they are satisfied that adequate notice was given of the Meeting;
(d) confirm that there is no particular process of decision-making that, under the traditional laws and customs of the people who hold or may hold the common or group rights comprising the native title in relation to the Agreement Area, must be complied with in relation to authorising such things as making of the proposed Settlement ILUA;
(e) in the absence of any such process, acknowledge that the process of decision‑making that has been agreed to and adopted, by the people who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the proposed Settlement ILUA (or of things of that kind) is by majority decision by secret ballot of all of the people present at today’s ILUA Authorisation Meeting;
(f) agree and acknowledge that a decision made in accordance with the process of decision-making described at paragraph (e) above will be taken to be a decision of all of the people who hold or may hold native title in relation to land or waters in the Agreement Area, and no person will have a right to challenge or veto a decision made in accordance with such process.
RESOLUTION 2
In accordance with process of decision-making that has been agreed to and adopted at today’s ILUA Authorisation Meeting in relation to authorising the making of the proposed Settlement ILUA, the people who hold or may hold native title in relation to land or waters in the area covered by the proposed Settlement ILUA (Agreement Area):
(a) authorise the making of the proposed Settlement ILUA, as tabled and presented at today’s ILUA Authorisation Meeting;
(b) authorise and direct the following people to be named as Parties to, and to sign, the proposed Settlement ILUA as Representative Parties for all of the people who hold or may hold native title in relation to land or waters in the Agreement Area;
i. the people comprising the Applicant for Alan Bolton, Hazel Brown & Ors -v- the State of Western Australia & Ors (Wagyl Kaip) (WAD6286/1998; WC1998/070) (Wagyl Kaip Claim);
ii. the people comprising the Applicant for Dallas Coyne & Ors and State of Western Australia & Ors (Southern Noongar) (WAD6134/1998; WC1996/109) (Southern Noongar Claim);
iii. any of the people comprising the Applicant for Gerald Williams & Ors and State of Western Australia (Wagyl Kaip - Dillon Bay People) (WAD33/2007; WC2007/001) (Wagyl Kalp - Dillon Bay People Claim) who wish to be named as Representative Parties;
iv. any of the people comprising the Applicant for Anthony Bennell & Ors v State of Westem Australia (Single Noongar Claim (Area 1)) (WAD6006/2003; WC2003/006) (Single Noongar Claim (Area 1)) who wish to be named as Representative Parties;
v. any other members of the ‘Native Title Agreement Group’, as that group is described in the proposed Settlement ILUA, who wish to be named as Representative Parties;
(c)agree and acknowledge that it is not necessary for all of the people mentioned at paragraph (b) above to sign the proposed Settlement ILUA, and that the signatures of those of such people who have signed by 3 April 2015 (Settlement ILUA Signatories) will be sufficient evidence of the decision of all of the people who hold or may hold native title in relation to land or waters in the Agreement Area to authorise the making of the proposed Settlement ILUA;
(d) agree to, and will do all things necessary to support, the State making an application to have the proposed Settlement ILUA registered on the Register of Indigenous Land Use Agreements in accordance with the Native Title Act 1993 (Cth), and thereafter taking all steps as are usual and necessary to have the proposed Settlement ILUA so registered;
(e) authorise and direct Settlement ILUA Signatories to approve and sign, after this meeting, any further technical, typographical, or other minor amendment to the proposed Settlement ILUA that they consider to be appropriate and necessary to ensure the registration of the proposed Settlement ILUA, without the need for another ILUA Authorisation Meeting; and
(f) acknowledge, and confirm their understanding, that in exchange for the Settlement Package, the registration of the proposed Settlement ILUA is intended ultimately to result in:
i. the surrender to the State of all native title rights and interests that might exist in relation to land and waters in the Agreement Area; and
ii. the Applicant for each of the Wagyl Kaip Claim, the Southern Noongar Claim, the Wagyl Kaip/Dillon Bay Claim and the Single Noongar Claim (Area 1) executing such consent orders (and otherwise doing such things) as are appropriate and necessary to ensure the making, by the Federal Court, of one or more determinations that native title does not exist in relation to the area within the external boundaries of their respective Claims.
(Emphasis in original.)
Subsequently, the State applied for registration of the ILUAs, the ILUAs having been signed in conformity with the relevant meeting resolutions but, significantly so far as these proceedings are concerned, not by all persons who, jointly, comprise the registered native title claimant or claimants in each case. In the case of the Whadjuk People ILUA, a person also did not sign the agreement before the making of the registration application, but did sign after the application was made.
The factual position that gives rise to the issues raised by these proceedings may then be summarised as follows:
Wagyl Kaip and Southern Noongar ILUA – the McGlade proceeding
15. There are two registered native title applications within the Wagyl Kaip and Southern Noongar ILUA Agreement Area:
(a) WAD 628611998 (Hazel Brown and others v State of Western Australia)(Wagyl Kaip); and
(b) WAD 6134/1998 (Dallas Coyne and others v State of Western Australia) (Southern Noongar).
16. Each of the five persons who comprise the Southern Noongar registered native title claimant has executed the agreement.
17. The Applicant in the McGlade proceeding is one of three people who jointly comprise the Wagyl Kaip registered native title claimant and is the only such person who has not signed that agreement or agreed to become a party to it.
Ballardong People ILUA – the Eades proceeding
18. WAD 618111998 (Alan Jones and others v State of Western Australia) (Ballardong) is the only registered native title application within the Ballaradong ILUA Agreement Area. Eleven people jointly comprise the Ballardong registered native title claimant:
(a) eight of those eleven people have executed that agreement.
(b) one of those eleven people died before the Ballardong ILUA was agreed.
(c) two of those eleven people have not signed the agreement or agreed to become parties to it.
19. The Applicant in the Eades proceeding does not, whether alone or jointly with others, comprise the registered native title claimant in the Ballardong native title claim. Mr Eades is a person who asserts to hold native title rights and interests in the Ballardong ILUA Agreement Area and who was included within the identified native title holding group.
Whadjuk People ILUA – the Smith proceeding
20. WAD 242/2011 (Clive Davis and others v State of Western Australia) (Whadjuk) is the only registered native title application within the Whadjuk ILUA Agreement Area. Five people jointly comprise the Whadjuk registered native title claimant:
(a) four of the five people who comprise the registered native title claimant have executed that agreement;
(b) the fifth person, Mr Davis, died after the agreement was made and has not signed that agreement.
21. The Applicant in the Smith proceeding does not, whether alone or jointly with others, comprise the registered native title claimant in the Whadjuk native title claim. Ms Smith is a person who asserts to hold native title rights and interests in the Whadjuk ILUA Agreement Area and who was included within the identified native title holding group.
South West Boojarah ILUA – the Culbong proceeding
22. There are two registered native title determination applications within the South West Boojarah ILUA Agreement Area:
(a) WAD 253/2006 (William Webb and others v State of Western Australia) (South West Boojarah #2); and
(b) WAD 6085/1998 (Minnie Edith van Leeuwen and others v State of Western Australia) (Harris Family).
23. The sole person who comprises the registered native title claimant in the Harris Family claim has executed the South West Boojarah ILUA.
24. Seven people jointly comprise the South West Boojarah #2 registered native title claimant:
(a) five of those people have executed that agreement;
(b) two of those people, which includes the Culbong Applicant, have not signed and have not agreed to become parties to that agreement.
At the time of the hearing of these proceedings, the ILUAs remained to be registered.
ISSUES
The key issue raised by these proceedings is whether an ILUA can be registered if not all individuals who jointly comprise the relevant registered native title claimant or claimants have signed the ILUA.
A sub-issue of the key issue concerns whether the fact that one of those individuals was deceased at material times affects the answer to this question.
There is also the further issue whether an ILUA can be registered in circumstances where one of those individuals only signed it after the application to register was made.
Each proceeding was initially commenced in the High Court of Australia.
On 17 February 2016, the High Court remitted the proceedings to this Court.
On 8 June 2016, North J made an order pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth), that the case and questions set out in the agreed special case prepared by the parties pursuant to R 38.01 of the Federal Court Rules 2011 (Cth), be stated for the consideration of a Full Court of this Court. As it transpires, the questions are less special questions under the Rules, and more questions designed to identify the main issues requiring resolution on the final hearing of the proceedings. The hearing proceeded on that understanding.
The four questions reserved for the consideration of the Court in WAD137/2016 and WAD140/2016 (concerning the Wagyl Kaip and Southern Noongar ILUA and the South West Boojarah #2 ILUA, respectively) are effectively as follows:
(1)Does the fact that the applicant has not signed, or agreed to become a party, to the respective ILUA have the consequence that the ILUA is not an agreement that complies with the requirements in s 24CD(1) and (2)(a) of the NTA?
(2)If the answer to question 1 is yes, what relief should be granted to the applicant?
(3)If the answer to question 1 is no, what relief should be granted to the respondents?
(4)Who should pay the costs of the special case?
The five questions reserved for the consideration of the Court in WAD138/2016 (concerning the Ballardong People ILUA) are as follows:
(1)Does the fact that (because he passed away before the Ballardong People ILUA was agreed) D Nelson was not named as a party to, and could not sign, the Ballardong People ILUA have the consequence that the Ballardong People ILUA is not an agreement that complies with the requirements in s 24CD(1) and (2)(a) of the NTA?
(2)Does the fact that Allan Jones and Reg Hayden have not signed, or agreed to become parties to, the Ballardong People ILUA have the consequence that the Ballardong People ILUA is not an agreement that complies with the requirements in s 24CD(1) and (2)(a) of the NTA?
(3)If the answer to either question 1 or question 2 is yes, what relief should be granted to the applicant?
(4)If the answer to either question 1 or question 2 is no, what relief should be granted to the respondents?
(5)Who should pay the costs of the special case?
The five questions reserved for the consideration of the Court in WAD139/2016 (concerning the Whadjuk People ILUA) are as follows:
(1)Does the fact that Mr Davis did not sign the Whadjuk People ILUA prior to the making of the registration application on 29 June 2015, and now cannot sign the Whadjuk People ILUA (because he passed away after the registration application was made), have the consequence that the Whadjuk People ILUA is not an agreement that complies with the requirements in s 24CD(1) and (2)(a) of the NTA?
(2)Does the fact that Mr Morich had not signed the Whadjuk People ILUA when the registration application was made on 29 June 2015 have the consequence that the Whadjuk People ILUA is not an agreement that complies with the requirements in s 24CD(1) and (2)(a) of the NTA, notwithstanding that Mr Morich subsequently signed the Whadjuk People ILUA on 24 February 2016?
(3)If the answer to either question 1 or question 2 is yes, what relief should be granted to the applicant?
(4)If the answer to either question 1 or question 2 is no, what relief should be granted to the respondents?
(5)Who should pay the costs of the special case?
APPLICANTS’ SUBMISSIONS
Introduction
The applicants contend that each of the four ILUAs at issue in these proceedings are not indigenous land use agreements within the meaning of s 24CA of the Act.
The applicants say their case is straightforward: in order to be an indigenous land use agreement within the meaning of s 24CA, the agreement must, among other things, meet the requirements in s 24CD, which requires that “[a]ll persons in the native title group” be a party to the agreement. They say the native title group relevantly includes the registered native title claimants in relation to the relevant area, which is defined in s 253 to mean a person or persons whose name or names appear in an entry on the Register as the applicant in relation to a claim to hold native title in relation to the land or waters.
In relation to the four ILUAs the subject of these proceedings, the applicants say that at least one person whose name appears as the applicant in the entry on the Register for the relevant claim was not a party to the agreement.
The applicants say that the operation of s 24CA and s 24CD in these matters also needs to take account of the provisions in the ILUAs that provide the agreements are to be ‘Executed as a deed’ and set out the manner in which that execution was to occur. The applicants note that in each case, the registered native title claimants have not signed or otherwise agreed to be a party to the agreement as a deed or otherwise. In this regard, they cite the requirement in s 9 of the Property Law Act 1969 (WA), that a deed must be signed. Thus, the applicants say, the deed cannot take effect as such until executed and delivered (which has not occurred) by all of the persons who are intended to be parties to the ILUAs.
Accordingly, the applicants submit that the ILUAs are incomplete and can have no legal effect as indigenous land use agreements under s 24CA, s 24CD or elsewhere in Div 3 of Pt 2. The applicants further submit that the agreements are not indigenous land use agreements within the meaning of s 24CA, and so the Registrar has no jurisdiction to register, or otherwise deal with, those agreements under ss 24CG to 24CK.
The applicants say that a further reason why that is so, is cl 6.3 of each agreement, which provides for the applicant in each native title claimant application to consent to a determination that native title does not exist in respect of the relevant claim areas.
In this regard, the applicants note s 66B of the NTA, which deals with the replacement or removal of a person or persons who comprise the applicant in a claimant application.
The applicants say that by reason of this provision, and the “invariable practice of the Court not to make a consent order binding on a party without that party’s consent”, such an order cannot be made or consented or agreed to without the consent and agreement of all the registered native title claimants, which has not occurred.
Principles of statutory construction
The applicants say the principles of statutory construction that bear on the key issue are well‑established.
By reference to the High Court’s decision in Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369; [2016] HCA 19, they say the High Court has consistently held that the meaning of statutory provisions is to be derived from the text, purpose and context of the legislation.
The applicants also say that the other important principle of construction engaged in these proceedings is the principle of legality – because the provisions purport to interfere with property rights, they must be interpreted consistently with the well-established presumption against legislative interference absent a clearly stated intention to the contrary. The “practical effect” of this presumption, as explained by French CJ in R & R Fazzolari Pty Limited v Parramatta City Council (2009) 237 CLR 603 at [40]-[45]; [2009] HCA 12, is that “where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights”. They say this approach to statutory interpretation is a manifestation of the principle of legality and the rule of law.
The applicants state that two categories of property rights are involved in the present context:
(1)the making and registration of an indigenous land use agreement under Subdiv C will involve (as is the case here), or is likely to involve, the extinguishment of native title rights and interests and their surrender to the State; and
(2)the making and registration of an indigenous land use agreement under Subdiv C will involve (as in this case), or is likely to involve, the giving up of the right to claim a determination of native title, which is a property right in the form of a chose in action. In this regard, the applicants cite Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 303-304 (Mason CJ, Deane and Gaudron JJ), 312 (Brennan J), 318-320 (Toohey J) and 325 (McHugh J); [1994] HCA 6; The Commonwealth of Australia v Mewett (1997) 191 CLR 471; [1997] HCA 29; and Lehman Brothers Holdings Inc. v City of Swan and Others (2010) 240 CLR 509 at [59] (Heydon J); [2010] HCA 11.
In this respect, the applicants say it is also important to note that native title rights and interests recognised and protected by the NTA comprise not only communal and group rights, but also individual property rights. See s 223 of the NTA; Yanner v Eaton (1999) 201 CLR 351 at [75] (Gummow J); [1999] HCA 53; and Bodney and Others v Bennell and Others (2008) 167 FCR 84 at [144]-[147]; [2008] FCAFC 63, citing De Rose and Others v South Australia and Others (No 2) (2005) 145 FCR 290 at [57]; [2005] FCAFC 110. They say that the claims at issue in these proceedings claim communal, group and individual rights and these are the rights that the ILUAs seek to surrender and extinguish by a formal determination by the Court that those rights do not exist.
The applicants also draw the Court’s attention to the observations of McHugh J in The Commonwealth of Australia v Yarmirr and Others (2001) 206 CLR 1; [2001] HCA 56, regarding the proper approach to the construction of the NTA. His Honour explained, at [124], as follows:
It is also necessary to keep in mind that, in the Second Reading Speech on the Native Title Bill 1993, the then Prime Minister, Mr Keating, saw Mabo [No 2] as giving Australians the opportunity to rectify the consequences of past injustices [footnote omitted]. The Act should therefore be read as having a legislative purpose of wiping away or at all events ameliorating the ‘national legacy of unutterable shame’ [footnote omitted] that in the eyes of many has haunted the nation for decades. Where the Act is capable of a construction that would ameliorate any of those injustices or redeem that legacy, it should be given that construction.
(Emphasis in applicants’ submissions.)
In accordance with these observations, the applicants say that courts should reject a construction that removes the clearly expressed statutory intent that native title is not to be extinguished by an indigenous land use agreement without all of the protective mechanisms – of which s 24CA and s 24CD are one – set in place in the NTA, being given their ordinary and natural meaning and operation.
Statutory framework
The applicants say that, as a result of area agreements being able to extinguish native title rights or interests, there are a number of “safeguards” built into the statutory requirements and processes that apply to the making and registration of these ILUAs.
First, if native title is to be extinguished, an express statement to this effect is required to be included in the indigenous land use agreement: s 24EB(1)(d).
Second, all persons in the “native title group”, as defined in s 24CD(2) and (3), in relation to the agreement area must be parties to the indigenous land use agreement: s 24CD(1). If there is one or more registered native title claimants or registered native title bodies corporate (RNTBCs) in relation to the agreement area, s 24CD(2) provides that they must all be parties to the agreement. If the agreement area includes an area for which there is no registered native title claimant and no RNTBC, any person who claims to hold native title in relation to that agreement area must also be a party: s 24CD(3).
Third, the making of the indigenous land use agreement must be the subject of the statutory authorisation process, which provides for the statutory authorisation of the making of the agreement under s 251A by the persons who hold native title in relation to the agreement area. This authorisation process is indirectly provided for by s 24CG(3), which provides that an application to register an indigenous land use agreement involving a representative body (in this case, SWALSC) must have been certified by that body in performing its functions under s 203BE(1)(b). In this regard, s 203BE(5) provides that such a body must not certify an application for registration of an agreement under subs (1)(b) unless it is of the opinion that:
(1)all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the agreement area have been identified; and
(2)all of the persons so identified have authorised the making of the agreement.
The applicants then note, what they say, are four important matters about the statutory framework the subject of these proceedings.
First, the requirement in s 24CD concerning who must be a party to the indigenous land use agreement is separate from the statutory requirements concerning authorisation under s 251A. The applicants say that the requirement in s 24CD performs a different function and occurs at a different stage in the indigenous land use agreement making process to the authorisation process under s 251A. As a structural matter, the statutory scheme separates the making of the agreement from its registration; both steps, which they say are protective of the rights of the native title holding group, are needed for an agreement to take effect under the NTA. The requirements in s 24CD relate to whether or not there is a valid agreement within the meaning of s 24CA. In contrast, the authorisation process ultimately relates only to whether an indigenous land use agreement must or must not be registered: see s 24CK.
The applicants submit that, as explained further below, it is a mistake to conflate these two aspects of the scheme, or to interpret the authorisation process as somehow being capable of modifying the statutory requirements for a valid indigenous land use agreement as set out in ss 24CA-24CE, or as modifying the appointment and replacement process for a native title claimant applicant provided for in ss 61, 66B and 251B. In this regard, the applicants say it is important to note that registered native title claimants become an applicant for a registered native title claim by reason of s 61 and s 251B, and then exercise their functions as set out, amongst other things, in s 62A.
Second, the applicants note that the applicant for a registered native title claim will often have two related roles in relation to an indigenous land use agreement:
(1)As a party to the agreement under s 24CD, the applicant for a registered native title claim is required to agree to the agreement terms. See s 24CE, referring to conditions and consideration “agreed by the parties”. Those terms will often involve the extinguishment of native title and its surrender to the State, as well as the terms and conditions on which this will occur. Similarly, the applicant, in its capacity as a party to the agreement, is also required to agree to the agreement being submitted for registration: s 24CG(1). This is important given that the agreement cannot take effect under the statute (including validating future acts or extinguishing native title) until it is registered. In his or her capacity as a party to the agreement – that is, in agreeing to the terms of the indigenous land use agreement and agreeing to seek its registration – the applicant acts as registered native title claimants that resulted from the authorisation given under s 251B.
(2)In addition, in so far as the agreement purports to settle the native title claim to which the native title claimant applicant is a party (or requires any steps to be taken in relation to that claim), it is the applicant, acting jointly, that must agree to those steps consistent with s 62A. This is demonstrated by the subject indigenous land use agreements, which involve the applicants consenting to orders that provide for the Federal Court to make a determination under s 87A(4) that native title does not exist in relation to each relevant claim area. A consent order by the parties can only be made with the consent of all of the parties – not with the consent of only some of the parties.
Third, the applicants say it is well-established that the persons comprising the applicant, in performing the applicant’s functions under s 62A in relation to a claim for native title, act “jointly”, which they say requires the persons authorised to be the applicant to act “collectively” or “unanimously”. In this regard, they note the statement of Kiefel J, as her Honour then was, in Chapman and Others v Queensland and Others (2007) 159 FCR 507; [2007] FCA 597 at [11], where her Honour states, “[t]he requirement of the NTA, that persons authorised act together, is not a term or condition of appointment, but a statutory requirement having as its purpose the efficient prosecution of claims” (emphasis in applicants’ submissions).
The applicants say that, accordingly, decisions in relation to a native title claim cannot be made by a majority of persons comprising the applicant, at least absent an authorisation under s 251B empowering the applicant to act by majority.
With regard to the latter point, namely whether s 251B permits the native title claim group to authorise the applicant to act by majority notwithstanding the s 61(2) requirement that the applicant act “jointly”, the applicants note that the authorities appear to be divided. They cite decisions not accepting this proposition: Tigan and Others v Western Australia (2010) 188 FCR 533 at [28]; [2010] FCA 993; and Gomeroi People v Attorney-General of New South Wales [2016] FCAFC 75 at [176]-[177] (Bromberg J), compared to decisions that have held that the authorising group can empower the applicant to act by majority: Anderson and Others v Queensland and Others (2011) 197 FCR 404 at [62]; [2011] FCA 1158; Far West Coast Native Title Claim v South Australia and Others (No 2) (2012) 204 FCR 542 at [50]‑[54]; [2012] FCA 733; and KK and Others v Western Australia (2013) 217 FCR 115; [2013] FCA 1234. The applicants say that even if an authorisation to act by majority could be effective, that possibility is not raised in these proceedings as there is no evidence that the s 251B authorisations of the applicants for each of the claims at issue in these proceedings included a provision for majority decision-making.
The applicants further say that the applicant is not subject to the direction or instruction of the native title claim group which has authorised the applicant under s 251B, citing Tigan at [11]-[12]; Weribone and Others v Queensland and Others (2011) 197 FCR 397 at [15] and [20]; [2011] FCA 1169; and Roe and Another v Kimberley Land Council Aboriginal Corporation (2010) 215 FCR 131 at [36]-[42]; [2010] FCA 809, in support of this proposition. By reference to Weribone at [22], they say this follows from the “deliberate dichotomy” established by the NTA between the claim group and the applicant, and that, as stated by Barker J in Gomeroi at [73], it is “beyond debate” that the applicant is “quite separate” from the claim group.
Fourth, the applicants note the mechanism provided by s 66B for replacing or removing an applicant (or a person or persons comprising the applicant) in circumstances where, among other things, the native title holders are unhappy with how the applicant is representing their interests or where the persons comprising the applicant “cannot agree among themselves” how to deal with the native title claim. See KK at [66], citing Mansfield J in Far West Coast at [54]. The applicants say the courts have confirmed that s 66B orders are the appropriate means to deal with “dissentient” applicants, including in circumstances where one or more of the persons authorised to be an applicant refuse to sign an agreement contemplated by the NTA. In this regard, they cite Daniel and Others v Western Australia and Others (2002) 194 ALR 278 at [14]; [2002] FCA 1147 and Holborow v State of Western Australia [2002] FCA 1428, which both concerned s 24MD agreements for compulsory acquisitions of land.
The applicants further submit that even though the terms of s 251B do not expressly cover the withdrawal of authorisation, it has been stated that this section defines the decision-making process by which authorisation may be withdrawn for the purpose of s 66B. See Daniel at [14].
Accordingly, they contend that s 66B should be regarded as a statutory code in respect of replacement of any of the registered native title claimants and therefore of the applicant for a native title claim, a conclusion which they say flows from the text, the statutory context outlined above and the apparent purpose of s 66B. Section 66B, the applicants contend, is a “complete and comprehensive statement of the circumstances in which” an applicant may be replaced or removed.
The proper construction of s 24CD
Thus, the applicants say, the statutory text, context and purpose all show that s 24CD requires all persons named as the applicant for a registered native title claim to be a party to an indigenous land use agreement.
First, they say the text governs. An interpretation that all persons named as the applicant must be a party to the agreement follows from the plain language of s 24CD(1) and (2) – there is no reason to give the word “all” anything other than its plain and ordinary meaning.
Second, they submit that this interpretation is consistent with the purpose of s 24CD, which is to ensure that the registered native title claimant, as representative of the native title holders, agrees to the terms and condition of the indigenous land use agreement (under s 24CE) and agrees to its registration (under s 24CG).
In this regard, they say the statutory requirements as to which persons and entities must be parties to the different types of indigenous land use agreements, and in what circumstances, are carefully delineated, and that it is significant that the registered native title claimant is only required to be a party to an area agreement under Subdiv C of the NTA (which can extinguish native title rights or interests) and only then in circumstances where the agreement area includes the area that is the subject of the registered claim. In effect, they say, s 24CD ensures that where an indigenous land use agreement seeks to extinguish native title rights in relation to the area the subject of a registered native title claim, the registered native title claimant must consent to the extinguishment and the terms and conditions on which it occurs. It would undermine the protection provided by this section if consent could be given by just one or more, but not all, of the persons authorised as the applicant in relation to the registered claim.
Third, the applicants submit that s 24CD, to the extent it requires all persons authorised as the applicant to be a party to the agreement, is consistent with the other provisions of the NTA, in particular those provisions that require the persons authorised as the applicant to act “jointly” or “unanimously” in making and dealing with native title claims. They say it would be an incongruous result if the applicant had to act unanimously in dealing with the native title claim, including consenting to determinations of the Court in relation to the claim, but could act through one or more persons only in the face of disagreement from one or more of the other persons authorised to be the applicant in relation to the making of an indigenous land use agreement extinguishing native title the subject of the proceeding. This is especially so given that the terms of the agreement itself will often (as is the case here) involve the settlement of the native title claim to which the applicant is a party and therefore involve the applicant taking steps to deal with that claim within the meaning of s 62A.
Fourth, the applicants submit it is a mistake to approach the interpretation of s 24CD with a view to facilitating the making of agreements that may extinguish native title rights and interests, as that is not the purpose of the indigenous land use agreement provisions. They say the statutory regime has struck a careful balance between providing a mechanism for the making of agreements affecting native title as an alternative to the judicial resolution of native title claims while also ensuring that these agreements are consensual and voluntary. In the case of area agreements, the applicants say that the legislature has provided for protections at different stages of the agreement making and registration process, such as the requirement that all persons comprising the native title group be a party to the agreement (and that such persons include all registered native title claimants in relation to the agreement area). Another is the requirement of compliance with the authorisation process provided for in ss 24CG, 203BE(5) and 24CK, before the agreement can be registered in accordance with Subdiv E. They note that these protections are not present in the case of the other types of indigenous land use agreements, which either do not involve the extinguishment of native title or do not involve land or waters that are the subject of unresolved claims to native title. The protective function of these statutory provisions should not be lightly overridden.
In this regard, the applicants contend the principle of legality discussed above is especially relevant to area agreements that extinguish property rights. Consistent with the well‑established principle articulated by French CJ in Fazzolari, the applicants say that the construction which is protective of native title rights and interests in the sense that the construction makes it harder for such rights to be extinguished or surrendered in the absence of a clear intention to do so, should be preferred, especially given that the property rights at issue, which include individual rights, are to be given up on behalf of a large group of native title holders, whose agreement to the indigenous land use agreement, as opposed to the agreement of their authorised representatives, is not required.
Fifth, the applicants submit that it is important that there is a statutory mechanism available in s 66B to remove persons who are authorised as the applicant. Because this mechanism is available, they say there is no absurdity or impracticality in requiring all persons who are authorised as the applicant for a registered claim to be a party to the indigenous land use agreement, as, in the event that one or more of those persons does not agree to be a party to the agreement, the remaining persons comprising the applicant can apply to the Court for an order under s 66B to remove or replace that person. Any such application would be dealt with by the Federal Court in accordance with the principles that have been developed in relation to s 66B orders.
The applicants further submit that an interpretation of s 24CD that permits less than all of the persons who are authorised to be the applicant to act for all such authorised persons, would circumvent s 66B, which is the means by which the legislature has provided to deal with the replacement of the applicant. Section 66B sets out the specific conditions and requirements that must be met before an order for replacement or removal may be made, and the courts have repeatedly confirmed that this is the proper means of dealing with disagreement among named applicants. The applicants say that it is erroneous to sidestep s 66B and act “as if” an order removing recalcitrant or dissident applicants is both unnecessary and not subject to satisfaction of the conditions in s 66B.
In this respect, the applicants say it is notable that this Court has, from time to time, made orders to remove a “dissident” member of an applicant in cases where that person has refused to sign an agreement contemplated by the NTA. See Daniel, at [14], and Holborow. The applicants note that in these cases, the Court, in exercising its powers, carried out a careful analysis of the relevant facts and statutory conditions, and, importantly, made an order for removal where it was clear that the native title group had properly authorised the making of the relevant agreement (following a careful analysis of the facts, including being satisfied that the members of the group had reasonable notice and an opportunity to participate in the decision making process). However, the applicants say there is no suggestion in these cases that the authorisation itself made it unnecessary to obtain the consent of the dissident member or members of the applicant or made it unnecessary to comply with the s 66B removal process.
Finally, the applicants submit that the resolutions passed at the authorisation meetings for each ILUA the subject of these proceedings, which purport to “authorise and direct” all of the persons named as applicant for each of the relevant registered claims (among others) to sign the relevant ILUA; to “agree and acknowledge” that it is not necessary that all of those persons sign the ILUA; and to “agree and acknowledge” that the signatures of those who do sign will be sufficient “evidence” of the authorisation under s 251A, do not alter the position. They say that these resolutions are not effective to satisfy the requirements in s 24CA and s 24CD, nor do they overcome the deficiencies identified in relation to the requirement that each ILUA be executed as a deed.
In this regard, the applicants firstly say that employing the authorisation process provided for under s 251A cannot modify or alter the requirement in s 24CA and s 24CD that all persons in the native title group be a party to an indigenous land use agreement. The requirement is a separate and independent requirement; it cannot be conflated with the authorisation process for the purposes of s 24CG and s 24CK.
Secondly, they say that a direction that a person sign an agreement cannot be effective to make that person a party, absent the person’s agreement to be a party and to sign the agreement.
Thirdly, they say there is nothing in the terms of s 251A, or the statutory context in which it operates, that gives the native title holders attending the meeting the power or authority to direct the persons authorised as the applicant to become parties, or to otherwise “authorise” or “agree” that it is not necessary that all such persons be parties. The persons comprising the applicant act as the representative for the native title holders but the applicant is separate and independent from that group. The applicants say that, consistent with previous decisions of this Court, the native title holders do not have the power – whether pursuant to the authorisation process or otherwise – to direct or instruct the applicant for a registered claim how to exercise its functions under the statute. Indeed, they say that the applicant registration process under ss 61, 62A and 251B and the removal process under s 66B are inconsistent with any such power.
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].
Reeves J went on to say that any other construction would lead to an absurd result as it would permit one member of the registered native title claimant to “veto” an indigenous land use agreement against the wishes of the authorising group: at [95]. His Honour found that s 66B did not provide a “solution” to this position: at [118]-[119]. The applicants say the reasoning on this latter point is unclear, noting that his Honour stated, at [118], that “using s 66B to alter the composition of the authorised applicant under s 251B, will [not] have any relevant effect on the authorisation of the making of an agreement under s 251A”, and that removing “dissident members” under s 66B is “otiose” because it is not necessary, as per his Honour’s earlier conclusion, that all persons comprising the registered native title claimant be parties to an indigenous land use agreement.
The applicants submit that this reasoning is erroneous for several related reasons.
First, it was an error not to begin with the statutory text and the plain meaning of the word “[a]ll” in the context of the language of s 24CD(1) and (2), and the definition of registered native title claimant in s 253.
Second, as explained above, the purpose of the requirement in s 24CD, that a registered native title claimant be a party to an indigenous land use agreement, cannot be reduced to a procedural mechanism to facilitate the authorising group to enter into the agreement pursuant to some sort of common law agency/principal type analysis. The provisions give to the registered native title claimant, in its capacity as a “party” to an indigenous land use agreement, a substantive and active role to play. The registered claimant must agree to the consideration and conditions provided for in the agreement and agree to apply to register the agreement; the registered native title claimant is not merely a ‘rubber stamp’ for the authorising group or a conduit through which the group can be bound by the agreement.
Third, Reeves J conflates the requirement in s 24CD, that the registered native title claimant be a party, with the procedural process in s 251A in relation to the native title holders’ authorisation of the agreement. Essentially, his Honour found that, provided there is the requisite authorisation under s 251A, this is sufficient to satisfy the requirement in s 24CD(1), which is evident from his conclusion that there is no need for any persons comprising the registered native title claimant to assent to an indigenous land use agreement. According to Reeves J, provided an indigenous land use agreement is authorised under s 251A, the persons named as the applicant on the Register are, in effect, automatically parties by reason of the requirement in s 24CA that they “must” be.
The applicants say that this construction deprives the requirement in s 24CD, which is a precondition for the existence of a valid indigenous land use agreement, of any operative effect. Further, they say that his Honour’s reasoning treats authorisation under s 251A as a statutory requirement but the requirement, as explained above, is that set out in ss 24CG(3), 205BE(1)(b) and 24CL.
Fourth, Reeves J’s holding that there is no privity of contract between the registered native title claimant and the other parties to the agreement, is erroneous. Likewise, his Honour’s discussion about whether or not the registered native title claimant is a legal person and his reliance on the law on when an agent may bind a principal in contract, is irrelevant to the statutory scheme under consideration. The NTA contains an express provision in s 24EA(1), that the parties (including the registered native title claimant) are bound and that the native title holders who are not parties are bound, and so plainly there is privity of contract between the relevant parties to the agreement, including the registered native title claimants. Section 24EA(1)(a) expressly provides that an indigenous land use agreement takes effect “as if it were a contract among the parties to the agreement”, and s 24EA(1)(b) states that the native title holders are bound in the same way as the RNTBC. There is no need to resort to common law principles of agency.
Fifth, Reeves J’s treatment of s 66B is not correct. His Honour’s reasoning – that there is no need to resort to s 66B because not all the persons comprising the applicant need to be parties – is circular. Again, his Honour appears to rely on an authorisation in s 251A as a substitute for compliance with the other statutory provisions in the NTA. The authorisation is but one part of the statutory scheme; it cannot be used to circumvent other statutory requirements.
Finally, the applicants submit that, even if some of these submissions are not accepted, the construction contended for in their submissions is to be preferred to that of Reeves J.
The Whadjuk People ILUA
The applicants note that the proceeding in WAD139/2016, which concerns the Whadjuk People ILUA, raises an additional issue. One person named on the Register as the applicant for the Whadjuk claim, Mr Morich, agreed to become a party to the Whadjuk People ILUA on 24 February 2016, well after the ILUA was lodged for registration. Another person was incapacitated at the time the registration application was made and died after the ILUA was lodged for registration.
In relation to Mr Morich, the applicants’ case is that an indigenous land use agreement must meet the requirements in s 24CA at the time it is lodged for registration under s 24CG. The requirements in s 24CA are jurisdictional requirements. The “agreement” to be submitted for registration under s 24CK must be an agreement within the meaning of s 24CA. A failure to meet these statutory requirements cannot be cured after the event.
In relation to the second person, the applicants submit that it was not open to the respondents to simply ignore his incapacity; the appropriate course was to seek to remove him as an applicant under s 66B, which expressly provides for removal of a person who has become incapacitated. Although the fact of his incapacity may have been uncontroversial in this case, it may not be so in every case. The legislature has provided for and required a judicial determination for removal on the ground of incapacity. That had not occurred when the agreement was lodged for registration.
SWALSC’S SUBMISSIONS
Construction of the relevant provisions
The SWALSC respondents say it is well established that legislation must be construed as a whole and on the basis that its provisions give effect to harmonious goals. See Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28. Consequently, it is necessary to construe s 24CD of the NTA in light of the statutory scheme as a whole.
They say that several aspects of the statutory scheme suggest that s 24CD does no more than require any registered native title claimant, understood as the persons who collectively comprise the applicant for a registered native title claim, to be party to an indigenous land use agreement in the manner authorised by all those who hold or may hold native title. Put differently, s 24CD does not give a veto over making an indigenous land use agreement to each individual member of the applicant.
First, contrary to the applicants’ submissions, the SWALSC respondents say that s 251A, which must be read with ss 24CG(3), 203BE(5) and 24CL(3), provides the only power for a registered native title claimant to make an indigenous land use agreement. The power is not derived from s 251B or s 62A: the former is relevantly concerned with authorising a person or persons to make a native title determination application and to deal with matters arising in relation to it; the latter gives the applicant power to deal with all matters arising under the NTA in relation to such an application. They say that if these provisions empowered the making of an indigenous land use agreement, s 251A (which sets out how the authorising group authorises the making of an agreement) would serve little purpose, and the terms of, and note to, s 62A would be difficult to explain. In this regard, they note, by reference to Project Blue Sky at [71], that it is a settled principle of statutory construction that a court must strive to give meaning to every word in a statute and should avoid making provisions otiose or insignificant.
The SWALSC respondents say that this understanding of how the NTA works is consistent with existing authority, noting that in Gomeroi, Barker J, Reeves J agreeing, stated, at [77]:
Section 62A … is intended to lay out the metes and bounds of the power of an applicant. It is not an unlimited power, however. It enables the applicant to ‘deal with all matters arising under this Act in relation to the application’. The relevant circumscribing expressions are ‘matters’, ‘arising under this Act’ and ‘in relation to the application’. As the note to s 62A states, the section deals only with claimant applications or compensation applications. This helps to give meaning to the expression ‘in relation to the application’. Thus, an applicant is not authorised to make an Indigenous Land Use Agreement … to which subdivs B to E of Div 3 of Pt 2 of the NTA apply.
They say that s 24CD likewise confers no power on the registered native title claimant to make an indigenous land use agreement – it simply identifies entities that may or must be parties to area agreements, and so the source of the power of those entities to make such agreements must be found elsewhere. By way of example, they say that, in the case of RNTBCs, the power to make the agreements comes from the fact that they hold native title on trust for, or as agents of, the holders of native title, and can bind the common law holders but only if they consult and obtain the consent of the holders of native title.
Second, the SWALSC respondents note that persons who authorise the making of an agreement under s 251A often will not be limited to the members of the native title claim group that authorised the applicant. Sections 24CG(3) and 203BE(5) of the NTA make it plain that the authorising group comprises all of the persons who hold or may hold the native title rights and interests in relation to an indigenous land use agreement area, and so the composition of the authorising group may be different from the native title claim group that authorised the applicant to make a native title determination application under s 251B. In this regard, they quote the following statement of Reeves J in Bygrave at [114], regarding rights and interests in relation to an agreement area:
[t]he claim group that provides the authorisation under s 251B is a different and narrower group of indigenous persons than the native title contracting group that authorises the making of an ILUA under s 251A. The former includes the particular group of indigenous persons who authorised the applicant to make the claim, whereas the latter may include other indigenous persons who were not included in the claim group, but yet still claim to hold native title in the area of land concerned.
The SWALSC respondents illustrate the point by reference to the Wagyl Kaip and Southern Noongar ILUA. They state that after the registration of the Wagyl Kaip and Southern Noongar claims, further anthropological and historical research conducted by SWALSC identified a number of new apical ancestors and their descendants for the area covered by the Wagyl Kaip and Southern Noongar ILUA. The authorising group that passed the resolutions authorising the making of that ILUA consisted of persons who belonged to the wider group that had been identified, and was not limited to members of the native title claim groups that authorised each claim.
Third, the SWALSC respondents state that s 251A enables the authorising group to determine how it wishes to indicate its assent to the agreement, including by providing who can sign an agreement on its behalf (if it is to be signed). The footnote in their submissions in support of this proposition states that no provision of the NTA requires an indigenous land use agreement to be signed. Where the authorising group authorises certain people to sign an indigenous land use agreement or otherwise act as its representatives, and they do so, it is submitted that the relationship of principal and agent will arise. The SWALSC respondents say that not only is there nothing in the NTA to prevent such a relationship arising, but that it has been recognised that authorisation under s 251A and s 251B give rise to fiduciary obligations. In this regard, they cite Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [61] and [63].
They say this conclusion flows from the principle that the conferral of a power or function — here, to authorise the making of the agreement — carries with it the power to do all things reasonably incidental to that function or power.
They further say that this conclusion is reinforced by the analogy between s 251A and s 251B, the terms of which are very similar. Section 251B permits authorisation on conditions. See Gomeroi at [81]-[82] (Barker J). Thus, they say, it enables the native title claim group to limit the authority given to the applicant to engage solicitors or to discontinue the proceedings. Some decisions have accepted that it also permits the claim group to authorise the applicant to act by a majority. See Anderson at [62]; Far West Coast at [50]‑[55].
By analogy, they say the authorisation under s 251A would extend to providing for certain persons to sign an agreement on behalf of the authorising group as its representatives, and to stipulating how many persons would need to sign any agreement.
Fourth, the SWALSC respondents submit that the decisions of this Court, such as Ankamuthi People v State of Queensland and Others (2002) 121 FCR 68 at [8]; [2002] FCA 897, Tigan at [11]-[12] and Weribone at [15], that hold that the native title claim group cannot direct the applicant how to exercise its functions in relation to an application for a determination of native title, do not apply. Nor do decisions that hold that the applicant must act jointly or unanimously, such as Tigan at [28] and Weribone at [20]-[22]. They say that those decisions, which are inconsistent with the cases cited above, depend on s 61(2) and s 62A of the NTA. Neither provision applies to the making of an indigenous land use agreement, which must be authorised under s 251A by an authorising group that will not necessarily mirror the s 61 native title claim group that authorised the applicant under s 251B to make the claim and to deal with matters arising in relation to it.
Fifth, the SWALSC respondents state that, as s 24EA(1) makes clear, it is only after registration of the area agreement that the parties to the agreement and the other persons who hold native title in relation to land or waters in the area covered by the agreement are deemed to be contractually bound to one another. It is, moreover, only after registration that any agreement about the doing of future acts, the validation of future acts, or anything else that departs from the effects of the future act regime in ss 24FA to 24NA can take effect. In these circumstances, they say it is difficult to see how there could be any binding legal agreement between individual members of the applicant and others about those matters before an application to register an agreement is made.
Mansfield J’s view (at [26]) was that, in the circumstances of death or incapacity of an individual, s 62A of the NT Act or O 6 r 9 of the Federal Court Rules provided “a ready and economical means” of changing the individuals who constitute the applicant. I infer his Honour saw s 62A as the source of authority for the existing individual constituting the applicant to approach the Court and I agree with that view. He did not consider s 66B obliged a claim group to use that process in circumstances of death or incapacity where (I infer) the claim group were otherwise content with the remaining individuals as their representatives. My inference is supported by what Mansfield J said at [29]:
The Commonwealth has pointed out that there will be cases in which it is important not only that persons are individually authorised as part of the applicant, but also that the particular group of persons is collectively authorised to act on behalf of the claim group. There may be sectional interests within the claim group whose interests are balanced by the particular combination of authorised persons. It is clear that such circumstances may arise. That is why s 66B empowers the claim group in its terms and in the circumstances it specifies. Que Noy v Northern Territory [2007] FCA 1888 provides an example of a claim group doing so. It would not be consistent with the clear objectives of the NT Act, on the other hand, to impose the s 66B procedure on the claim group where there were no such considerations.
Whether or not the current equivalent of O 6 r 9 (r 9.08 of the Federal Court Rules 2011 (Cth)) could be used to remove an individual’s name from an applicant is not a matter I consider is necessary to determine. I note that one of the consequences of orders made by the Court under s 66B is the alteration of the Register of Native Title Claims (see s 66B(4)). While it is conceivable another source of power in the Federal Court of Australia Act 1976 (Cth) could be used to order the Registrar to amend the Register, in my opinion it is clear s 66B(4) is intended to achieve that purpose. The real issue of concern to Mansfield J (and legitimately so, with respect) was that, where there is no disagreement within the claim group and the remaining applicants clearly continue to enjoy the confidence of the claim group, a further authorisation meeting (with all its attendant delay, cost and resources) would be unnecessary.
That is, it is not the fact of an application to this Court, of itself, which was seen by Mansfield J as productive of delay and frustration of the broader objectives of the NT Act. To make the orders he did, his Honour required an application, with supporting material. Rather, it was the Commonwealth’s suggestion that an entirely new authorisation process under s 251B was required, especially in the context of a remote and widespread community, as was the case with Lennon (see [11]).
I do not consider that in the case of death or incapacity of an individual who, jointly with others, constitutes the applicant/registered native title claimant, s 66B requires an entirely new authorisation process for orders under s 66B(1)(a)(i) and (ii), at the least. The original authorisation given by the claim group under s 251B remains operative and the “members” of the native title claim group who are the remaining members of the applicant are authorised to deal with matters arising in relation to the native title application (s 62A). That plainly includes making an application of this kind under s 66B(1)(a)(i) and (ii). No separate or new authorisation meeting would ordinarily be required. The source of power however, remains s 66B.
The situation is likely, but not necessarily, to be different for an application seeking orders under s 66B(1)(a)(iii). That is because in its terms subpara (iii) contemplates a change in the nature of the authorisation originally given under s 251B. In relation to both subparas (iii) and (iv), the original authorisation may be sufficient if the persons making the s 66B application are the remaining individuals who constitute the applicant. In that case, their original authorisation may be sufficient for the purpose of s 66B(1)(b) and the preconditions to making the order would need to be addressed by evidence. If, however, other members of the claim group sought to bring an application for orders under s 66B(1)(a)(iii) or (iv), then there would need to be a new authorisation meeting for the purposes of s 66B(1)(b), and indeed to provide evidence that the members of the claim group moving for the change were themselves authorised to constitute the applicant.
If an applicant/registered native title claimant is constituted by a single individual, and that individual is incapacitated or dies, the respondents did not suggest that some alternative arrangement could simply be put in place, without resort to s 66B. Plainly, it could not. No matter how inconvenient it might be, a new authorisation process and an application under s 66B would be required.
I consider this approach applies to the making of an ILUA in the following way. Where an ILUA is to be made and one or more of the individuals who constitute the applicant/registered native title claimant has died or is incapacitated, an application should be made under s 66B to remove that individual prior to the making of the ILUA. Such an application would be straightforward if made by the remaining individuals who constitute the applicant, and would be authorised by s 62A. There would be no need for any further authorisation meetings. The Court could likely deal with the matter on the papers, if the evidence was clear. If it was not clear, then there is nothing in the scheme of the NT Act to suggest that any less formal ways should be permitted to alter the constitution of an applicant. Then the remaining individuals could sign the ILUA and their signatures would bind the registered native title claimant and, on registration, the claim group.
Any other approach produces substantial disconformities with the operation of Pt 2 Div 3 and its contractual approach. A person who has died obviously cannot assume, voluntarily or otherwise, any legal rights and responsibilities. If, by “incapacitated” (being the term used by the parties in the special cases before the Court), what is meant is having sufficiently serious disabilities as to be incapable of understanding the nature of the rights and obligations to be assumed by the agreement, then such a person has no capacity to enter a contract in any event. In Gibbons v Wright [1954] HCA 17; 91 CLR 423 at 438, Dixon CJ, Kitto and Taylor JJ said:
[T]he mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.
Gibbons was applied by the New South Wales Court of Appeal in Ford v Perpetual Trustees Victoria Ltd [2009] NSWCA 186; 75 NSWLR 42 at [83]-[90] (Allsop P and Young JA, Sackville AJA agreeing at [134]). I take it the parties had these principles in mind when they described some of the individuals as “incapacitated”.
It should not be assumed any different approach was intended by Parliament in relation to the making of an ILUA, to which the statute gives contractual effect, than that taken under the general law. It was intended by Parliament that the individuals chosen as representatives of the claim group be able to fulfil those responsibilities. Section 66B makes that clear. They are serious and weighty responsibilities, as the nature and content of the terms in the ILUAs in these four proceedings demonstrate. Much is at stake. In my opinion, Parliament intended that all individuals constituting the registered native title claimant be able and willing to perform their representative responsibilities, and if they were not, then the process in s 66B was to be used. As I have explained, that process need not be cumbersome, or expensive, or cause delay. If there is a real difference of opinion about, to use Mansfield J’s phrase in Lennon, “the best way forward”, then as his Honour accepted, the structure and purpose of the NT Act is that there be a full application under s 66B and, if necessary, new authorisation meetings. Then, Parliament has reposed the ultimate decision about a change in the composition of the applicant/registered native title claimant in circumstances of a real dispute in the Court, not in the claim group. There is no ‘short cut’ around this.
The decision in QGC Pty Ltd v Bygrave (No 2) [2010] FCA 1019; 189 FCR 412
It will be apparent that I do not agree with the approach taken by Reeves J in Bygrave, although I do agree with his Honour’s construction (at [79]) of the word “all” in s 24CD(1) and (2)(a).
However, I do not agree with his Honour’s findings at [83]-[85] that a registered native title claimant may be made a party to an ILUA by naming only one or more (but not all) of the persons named in the entry of the Register of Native Title Claims. It will also be apparent that, for the reasons I have given, I do not agree with his Honour’s findings (see generally at [101]-[109]) that there is no requirement of consent by the individuals constituting the registered native title claimant, and I do not agree that there is no requirement that a party to an ILUA must sign it. I consider a requirement for signature to be implicit in the legislative scheme.
Nor do I agree with his Honour’s finding (at [87]-[88]) that there is no requirement that persons who comprise a registered native title claimant named as a representative party to an ILUA act jointly or collectively, at least not in the sense I understand his Honour to have stated that proposition. As I have pointed out, s 61(2) does not say the individuals must act “jointly”. It says that they are, jointly, the applicant. In practical effect this may mean, absent orders under s 66B, they must agree on how to perform their functions and what decisions to make, but that would be to focus on the outcome rather than the process. In the process of performing functions and making decisions, each individual constituting the applicant has a representative role and is entitled to her or his own voice. That may mean much negotiation and debate, but I think that is precisely what Parliament contemplated may occur in the course of matters arising under the NT Act. It is only if, at the end of the day, no agreed position can be reached that resort must be had to s 66B.
Reeves J saw (at [117]-[118]) a brighter line between a s 251B authorisation and the making of an ILUA than I have identified. I have explained my reasons for considering that much of what occurs in the negotiation of an ILUA, and specific agreement to specific terms related to a claimant application, is the performance by the named individual of their functions under s 62A, as authorised by the native title claim group. If in negotiating an ILUA those individuals exceed their authority, they could also be removed under s 66B, subject to the Court considering it appropriate.
I note Reeves J’s observation at [90] that s 24CD should not be construed so as to allow an individual member of a registered native title claimant to “frustrate or veto” a native title contracting group entering into an ILUA. With respect to his Honour, just as I prefer not to embrace the terms “dissident” and “dissenting” as they were used in argument before the Court, so I prefer not to characterise the refusal of a person in Ms McGlade’s position as a ‘veto’ or as ‘frustrating’ an ILUA. As I have noted, and as the example of Daniel’s case shows, an individual who holds views different from those of the majority of the individuals constituting the registered native title claimant may nevertheless be conscientiously performing her or his representative role. If she or he is not, then she or he should be removed under s 66B, if the Court is satisfied on evidence that is appropriate. If she or he is performing such a role, then expressing a contrary view may lead to a change of mind, or at least a modification of views, in the remainder of the individuals constituting the registered native title claimant. One cannot assume the motives for entering into an ILUA are any more objectively appropriate and reasonable than the motives for not doing so. There are simply different perspectives, and it is for the claim group as a whole, and the claim group only, to decide which perspective should prevail. Ultimately, if the native title claim group desire the same outcome as the majority of individuals constituting the registered native title claimant, then the NT Act provides the solution in s 66B, read with s 251B, conditional upon the Court’s satisfaction.
I note the use in his Honour’s reasons of the term “representative party”, which is also the term used in the impugned ILUAs in this proceeding. While I have found that the individuals constituting the registered native title claimant are appointed to that role as authorised representatives of the native title claim group, the NT Act describes all persons as simply a “party” to an ILUA. I prefer the statutory term, in part because it emphasises, for the reasons I have given, that a registered native title claimant is a singular statutory concept, however constituted.
The Whadjuk ILUA: the Smith proceeding
The material difference between this and the other ILUAs is the respondents’ reliance on events which occurred after the lodgement of the ILUA for registration.
The State lodged the Whadjuk ILUA for registration on 29 June 2015. On that date, two people who were named as the applicant for the Whadjuk Claim had not signed the ILUA: Mr Clive Davis, and Mr Noel Morich. Mr Davis was incapacitated and later died on 8 August 2015. Mr Morich signed the ILUA on 24 February 2016, more than six months after the ILUA was lodged for registration.
Of course, none of the impugned ILUAs have been registered, because of these proceedings.
The applicants contend that compliance with s 24CD must be assessed at the date of lodgement of the ILUA for registration. The Whadjuk ILUA either met the requirements of s 24CD on that date or it did not. If the applicants are correct, the subsequent signature of Mr Morich could have no effect.
The respondents contend that the date of lodgement is not critical, but rather the date of decision by the Registrar. The third, fourth and fifth respondents contend in their written submissions:
Since every living person who comprises the applicant for the Whadjuk People Claim has signed the agreement, it plainly complies [with s 24CD].
I have dealt with the issue of incapacity or death of a person who constitutes, jointly, a registered native title claimant at [472]-[489] above.
The respondents’ submissions should be accepted. Although s 24CG prescribes the nature and content of an application for registration, there is no debate on the facts of each of the four proceedings that the applications for registration contained what they needed to contain. The debate is whether, as a matter of law, the agreements were ILUAs so that the obligation imposed on the Registrar by s 24CK(1) was required to be performed.
That is a matter which arose for determination at the time the Registrar’s obligation under s 24CK(1) crystallised. Due to these proceedings, that time has not yet been reached. If and when that time is reached, the Registrar would have before her or him a certification from SWALSC in relation to an agreement that complies with the requirements of ss 24CB-24CE and so is an ILUA in accordance with s 24CA of the NT Act. There will be no impediment to registration, subject to Mr Davis’s name having been removed under s 66B from the Register of Native Title Claims.
Conclusions on the applicants’ arguments
For the reasons I have set out, on a proper construction of ss 24CB-24CE, an agreement will only be an ILUA for the purposes of s 24CA if all of the individuals whose names appear on an entry on the Register of Native Title Claims as the applicant sign the ILUA. Whether they can authorise another to sign as agent or proxy can be left for a case which raises that issue directly. Subject to what I consider should be straightforward alterations under s 66B in circumstances where a person has died, or is incapable in the Gibbons v Wright sense, all the individuals who constitute the registered native title claimant must agree that the entity should voluntarily assume the rights and obligations involved in the ILUA. The agreement then meets the statutory criteria of an ILUA set out in ss 24CA-24CE and is capable of being registered, subject to authorisation in accordance with s 251A. It is the s 251A authorisation which is necessary to produce the statutory effect in s 24EA(1)(b) of binding all members of the native title claim group as if the ILUA were a contract to which they were parties.
Where there is disagreement amongst the individuals who constitute the registered native title claimant, then if this disagreement cannot be resolved by negotiation amongst the named individuals, or negotiation with the claim group members, an application under s 66B would need to be made to the Court to change the composition of the applicant. This preserves the representative character of the individuals who constitute the applicant, which is a core feature of the legislative scheme.
I do not consider this approach departs from the proposition that, in the making of an ILUA, the members of the native title claim group have “ultimate authority”: see Far West Coast Native Title Claim at [59] (Mansfield J); Daniel at [16] (French J). They have that authority in two ways. First, by their decision whether to retain or remove the representatives they have earlier chosen, and to use s 66B if they choose to remove them. Second, by their participation in the area ILUA authorisation for which s 251A provides, and the methods they, together with any other participating native title claim group, subscribe to for the purposes of s 251A(b), assuming there is no traditional decision-making process common to all the claim groups which must be followed.
The consequences of my conclusions for each impugned ILUA are as follows.
In the McGlade proceeding, each of the five persons who comprise the Southern Noongar registered native title claimant has executed the agreement, and Ms McGlade is the only one of the three persons who jointly comprise the Wagyl Kaip registered native title claimant who has not signed that agreement or agreed to become a party to it. That means the Wagyl Kaip and Southern Noongar ILUA is not an ILUA within the meaning of s 24CA of the NT Act.
In the Eades proceeding, although Mr Eades is a member of the native title claim group rather than a person who, jointly, constitutes the Ballardong registered native title claimant, there was no challenge to his standing to bring this proceeding. The Eades special case notes that he voted against the resolutions at the s 251A authorisation meeting. Of the 11 people who constitute, jointly, the Ballardong registered native title claimant, eight have executed that agreement, one died before the Ballardong ILUA was agreed (Mr Doug Nelson), and two (Mr Allan Jones and Mr Reg Hayden) have not signed the agreement or agreed to become parties to it. That means the Ballardong ILUA is not an ILUA within the meaning of s 24CA of the NT Act.
In the Smith proceeding, Ms Smith is a member of the Whadjuk native title claim group rather than a person who, jointly, constitutes the Whadjuk registered native title claimant, however there was no challenge to her standing to bring this proceeding. Of the five people who jointly constitute the Whadjuk registered native title claimant, four have signed the agreement and the fifth, Mr Davis, died after the agreement was made and therefore neither signed nor gave his consent to that agreement. The fact that one person (Mr Moric) signed the ILUA after it was lodged is of no consequence to the Registrar’s ability to register it, if the ILUA otherwise meets all the requirements of the NT Act.
For the reasons I have given, the death of Mr Davis and the impossibility of him voluntarily assuming responsibilities as a representative of the Whadjuk claim group does not preclude the Whadjuk Agreement satisfying the requirements of s 24CB-24CE of the NT Act, in the sense that there can be a straightforward application under s 66B to remove him.
The Culbong proceeding, as I have noted, involves two registered native title determination applications which are both proposed to be within the South West Boojarah #2 ILUA Agreement Area. Seven people, jointly, constitute the South West Boojarah #2 registered native title claimant. Of those, five have executed the agreement and two (Ms Culbong, the applicant and Mr William Webb) have not signed and have not agreed that the South West Boojarah #2 registered native title claimant should become a party to the South West Boojarah #2 ILUA.
One person constitutes the registered native title claimant in the Harris Family claim. Ms Van Leeuwen has executed the South West Boojarah #2 ILUA.
The absence of agreement by Ms Culbong and Mr Webb means the South West Boojarah #2 ILUA is not an ILUA within the meaning of s 24CA of the NT Act.
The answers to the case stated in the each proceeding appear below. In my opinion declaratory relief should be sufficient to give effect to the Court’s decision. The Registrar will abide the decision of the Court and accordingly, given its decision, the four impugned ILUAs will not be registered in their current state. In the case of the Whadjuk ILUA a straightforward procedural application is all that is needed before the registration of that ILUA can occur. What further steps may or may not be taken in relation to the other three ILUAs will be a matter for the parties.
ANSWERS TO CASE STATED IN EACH PROCEEDING
The questions stated by the parties in each proceeding, and the answers I consider should be given to them, are as follows.
In the McGlade proceeding:
(1)Does the fact that the applicant has not signed or agreed to become a party to the Wagyl Kaip and Southern Noongar ILUA have the consequence that the Wagyl Kaip and Southern Noongar ILUA is not an agreement that complies with the requirements in ss 24CD(1) and (2)(a) of the NTA?
Answer: Yes.
(2)If the answer to question 1 is yes, what relief should be granted to the applicant?
Answer: The applicant is entitled to declaratory relief.
(3)If the answer to question 1 is no, what relief should be granted to the respondents?
Answer: Unnecessary to answer.
(4)Who should pay the costs of the special case?
Answer: 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.
In the Eades proceeding:
(1)Does the fact that (because he passed away before the Ballardong ILUA was agreed) Doug Nelson was not named as a Party to, and could not sign, the Ballardong ILUA have the consequence that the Ballardong ILUA is not an agreement that complies with the requirements in ss 24CD(1) and (2)(a) of the NTA?
Answer: Yes.
(2)Does the fact that Allan Jones and Reg Hayden have not signed, or agreed to become Parties to, the Ballardong ILUA have the consequence that the Ballardong ILUA is not an agreement that complies with the requirements in ss 24CD(1) and (2)(a) of the NTA?
Answer: Yes.
(3)If the answer to either question 1 or question 2 is yes, what relief should be granted to the applicant?
Answer: The applicant is entitled to declaratory relief.
(4)If the answer to either question 1 or question 2 is no, what relief should be granted to the respondents?
Answer: Unnecessary to answer.
(5)Who should pay the costs of the special case?
Answer: 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.
In the Smith proceeding:
(1)Does the fact that Mr Davis did not sign the Whadjuk ILUA prior to the making of the registration application on 29 June 2015, and now cannot sign the Whadjuk ILUA (because he passed away after the registration application was made), have the consequence that the Whadjuk ILUA is not an agreement that complies with the requirements in ss 24CD(1) and (2)(a) of the NTA?
Answer: Yes.
(2)Does the fact that Mr Morich had not signed the Whadjuk ILUA when the registration application was made on 29 June 2015 have the consequence that the Whadjuk ILUA is not an agreement that complies with the requirements in ss 24CD(1) and (2)(a) of the NTA, notwithstanding that Mr Morich subsequently signed the Whadjuk ILUA, on 24 February 2016?
Answer: Yes.
(3)If the answer to either question 1 or question 2 is yes, what relief should be granted to the applicant?
Answer: The applicant is entitled to declaratory relief.
(4)If the answer to either question 1 or question 2 is no, what relief should be granted to the respondents?
Answer: Unnecessary to answer.
(5)Who should pay the costs of the special case?
Answer: 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.
In the Culbong proceeding:
(1)Does the fact that the applicant and William Webb have not signed, or agreed to become Parties to, the South West Boojarah #2 ILUA have the consequence that the South West Boojarah #2 ILUA is not an agreement that complies with the requirements in ss 24CD(1) and (2)(a) of the NTA?
Answer: Yes.
(2)If the answer to question 1 is yes, what relief should be granted to the applicant?
Answer: The applicant is entitled to declaratory relief.
(3)If the answer to question 1 is no, what relief should be granted to the respondents?
Answer: Unnecessary to answer.
(4)Who should pay the costs of the special case?
Answer: 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.
The wording of those answers is slightly different to the answers given in the joint judgment, but not substantively so. In those circumstances, I join in the Orders and Declarations of the Court.
I certify that the preceding two hundred and forty-four (244) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 2 February 2017
ANNEXURE A – MAP SHOWING THE AREA COVERED BY THE SIX ILUAS
SCHEDULE OF PARTIES
WAD 137 of 2016
Respondents
Fourth Respondent:
GLEN COLBUNG (SUED ON HIS OWN BEHALF AND AS REPRESENTING THE INDIVIDUALS NAMED AS ‘REPRESENTATIVE PARTIES’ IN, AND WHO HAVE SIGNED, THE WAGYL KAIP & SOUTHERN NOONGAR INDIGENOUS LAND USE AGREEMENT)
Fifth Respondent:
HAZEL BROWN
WAD 138 of 2016
Respondents
Fourth Respondent:
REG YARRAN (JNR) (SUED ON HIS BEHALF AND AS REPRESENTING THE INDIVIDUALS NAMED AS ‘REPRESENTATIVE PARTIES’ IN, AND WHO HAVE SIGNED, THE BALLARDONG PEOPLE INDIGENOUS LAND USE AGREEMENT)
WAD 139 of 2016
Respondents
Fourth Respondent:
NIGEL WILKES (SUED ON HIS OWN BEHALF AND AS REPRESENTING THE INDIVIDUALS NAMED AS ‘REPRESENTATIVE PARTIES’ IN, AND WHO HAVE SIGNED, THE WHADJUK PEOPLE INDIGENOUS LAND USE AGREEMENT)
WAD 140 of 2016
Respondents
Fourth Respondent:
DONALD HAYWARD (SUED ON HIS OWN BEHALF AND AS REPRESENTING THE INDIVIDUALS NAMED AS ‘REPRESENTATIVE PARTIES’ IN, AND WHO HAVE SIGNED, THE SOUTH WEST BOORJARAH #2 INDIGENOUS LAND USE AGREEMENT)
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