Mualgal People v State of Queensland

[1998] FCA 1718

MUALGAL PEOPLE v STATE OF QUEENSLAND AND OTHERS
No. QG 6035 of 1998, FED No. 1718/98
Native Title
(1998) 90 FCR 303

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

DRUMMOND J

Native Title - whether ss 55, 56 and 57 the Native Title Act 1993 (Cth) operate to prevent the Court making a determination under s 87 in circumstances where applicants intend that native title interests will be held by common law holders and not held on trust and where common law holders not presently in a position to nominate a prescribed body corporate for the purposes of performing the functions mentioned in s 57(3).

Native Title Act 1993 (Cth), ss 55, 56, 57, 87

Native Title (Prescribed Bodies Corporate) Regulations (Cth)

Native Title Amendment Act 1998 (Cth), cll 14(5) and 14(6) of Pt 5 of Sch 5, cl 16 of Sch 2

Ben Ward v State of Western Australia (Lee J, unreported, 24 November 1998), applied

BRISBANE, 16 December 1998 (hearing), 24 December 1998 (decision)

#DATE 24:12:1998

Appearances

Solicitor for the Applicants: Phillips Fox

Counsel for the State of Queensland: Mr G Hiley QC and Mr A Preston

Solicitor for the State of Queensland: Crown Law

Solicitor for the Commonwealth of Australia: Australian Government Solicitor

THE COURT DECLARES THAT:

1. On the proper construction of the relevant provisions of the Native Title Act 1993 (Cth) it is not necessary for the Court to make, simultaneously with a determination under s 55, determinations within s 56(2)(b) or (c) or within s 57(2), provided the Court simultaneously with the making of a determination under s 55 commences to implement the procedure in s 56(2) and, if appropriate in the circumstances of the particular case, the procedure in s 57(2).

   2. There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DRUMMOND J

It is probable that the Court will be asked to make a determination under ss 55 and 87 the Native Title Act 1993 (Cth) as amended by Act No 97 of 1998 in respect of most of the land the subject of the claim made by the applicants on behalf of the Mualgal People. It is intended that the relevant native title rights and interests will not be held in trust for, but will be held by the common law holders themselves, ie, it is envisaged that the Court will be asked to make a determination to that effect under s 56(2)(c). Against this background, the question has arisen for determination whether ss 55, 56 and 57 the Native Title Act operate to prevent the Court making a determination of the existence of native title where the applicants intend that the native title rights and interests in question will be held by the common law holders, but not on trust, in circumstances where the common law holders are not presently in a position to nominate a prescribed body corporate for the purpose of performing the functions mentioned in s 57(3) the Native Title Act.

The simple answer would appear to be "No" because such a situation is envisaged by s 57(2). It provides, by s 57(2)(c), for the Court to determine for itself, "in accordance with the regulations", which prescribed body corporate is to perform the non-trust functions in respect of the common law holders in whom are vested the native title rights and interests which the Court will have found to exist by determination under s 55 where those holders do not nominate a body corporate to perform those functions. However, there appear to be no regulations in force for the purpose of s 57(2)(c): the Court will therefore be unable to determine who is to be the relevant prescribed body corporate. The State of Queensland and the Commonwealth submit that the consequence is that even though an agreement sufficient for the purposes of s 87 may be reached, effect cannot be given to that provision. If this is correct, it would seem that it would not be open to the common law holders to seek a determination of the existence of native title under s 55 and s 87 by abandoning their desire to take title in their own names and making a nomination of a prescribed body corporate that would permit the Court to make a determination under s 57(2)(b), instead of s 57(2)(c).

The meaning of the expression "prescribed body corporate" in ss 56 and 57 can be gathered from s 253, which contains the following definitions:

prescribed means prescribed by the regulations.

registered native title body corporate means:

(a) a prescribed body corporate whose name and address are registered on the National Native Title Register under subparagraph 193(2)(d)(iii); or

(b) a body corporate whose name and address are registered on the National Native Title Register under subparagraph 193(2)(d)(iv).

There can be no body corporate identified that is capable of becoming a registered native title body corporate and so satisfying the requirements of s 56(2)(a) and (b) and s 57(1) or s 56(2)(c) and s 57(2)(a) and (b) unless and until regulations are made that identify, ie, prescribe, particular bodies corporate or classes of body corporate that will save those statutory objects.

Regulation 3 of the Native Title (Prescribed Bodies Corporate) Regulations (Cth) gazetted on 30 December 1994 with amendments gazetted on 9 June 1998 did prescribe the kind of bodies corporate for the purposes of s 59(a) of the 1993 Act as it stood before the 1998 amending Act, viz, Aboriginal associations with a particular membership that were incorporated under the Aboriginal Councils and Associations Act 1976 (Cth), after the commencement of these regulations. Sections 56 and 57 in the old Act were in similar terms to these sections in the amended Act save that they regulated the taking of the actions therein referred to by both the National Native Title Tribunal and the Federal Court while the amended provisions apply only to the Federal Court. Section 59 of the old Act provided:

The regulations may prescribe the kinds of bodies corporate that may be determined under section 56 or 57 in either or both of the following ways:

(a) by providing that bodies corporate may be established and operated for the purpose in a specified way;

(b) by providing that the bodies corporate may be those that have been or may be established by other laws of the Commonwealth, a State or Territory.

By cl 16 of Sch 2 to the Native Title Amendment Act 1998 (Cth), s 59 of the old Act was amended to delete the words in bold type and all references in ss 56 and 57 to the National Native Title Tribunal were deleted. In some cases of disconformity between a section as it stood in the old Act and the form in which it now stands in the amended Act, express provision is made in the transitional provisions of the Amendment Act of 1998 for deeming regulations made for the purposes of a particular section of the old Act to be regulations made for the purpose of the corresponding provision of the new Act. See cl 14(5) and (6) of Pt 5 of Sch 5 to the Amendment Act of 1998. However, there is nothing in the Amendment Act of 1998 that deems reg 3 of the Native Title (Prescribed Bodies Corporate) Regulations made for the purpose of prescribing body corporates for the purposes of s 59(a) of the old Act to be a regulation that prescribes body corporates for the purposes of the amended s 59. There are thus no entities as yet identified which can be the subject of nominations within ss 56(2)(a) and (b) and 57(2)(a) and (b) and of a determination within s 57(2)(c).

It cannot have been the Parliamentary intention that there be a halt to the making of determinations of the existence of native title, including determinations based on the agreement of the parties unless and until the necessary regulations have been made.

Section 55 directs the Court, where it proposes to make an approved determination of the existence of native title, to "make the determinations in s 56 ... or 57" at the same time as it makes that s 55 determination. However, ss 56(2) and 57(2) establish a procedure which must be followed by the Court "in making the determination" provided for by s 56 and "in determining" the body corporate required to be identified by s 57(2). These procedures cannot, however, be implemented simultaneously with the making of the approved determination of the existence of native title under s 55, but are both procedures that will necessarily extend over a period of time.

There is therefore a conflict between the obligation cast on the Court by s 55 to make the determinations in ss 56 and 57 at the same time as it makes the s 55 determination and the procedures prescribed by both ss 56 and 57 which the Court must follow in making the ss 56 and 57 determinations. I would resolve this conflict by reading the direction in s 55 to the Court to "make the determinations in s 56 ... or 57" at the same time as it makes the s 55 determination as a direction to then commence to implement the procedure contained in s 56(2) and s 57(2) (if appropriate) which will culminate in either a determination under s 56(2)(b) or (c) and a determination under either s 57(2)(b) or (c) at the same time as it makes the s 55 determination. Sections 56(2) and 57(2), in my opinion, should be read as identifying how the obligations cast by s 55 on the Court to "make the determinations in s 56 or ... 57" are to be performed.

I therefore hold that where the Court makes a determination as to the existence of native title under s 55, it must at the same time as it makes that determination commence to implement the procedure in s 56(2), and, if appropriate the procedure in s 57(2), which procedures will necessarily be complete only at some time after pronouncement of the determination under s 55.

I am reinforced in this view by the fact that, although regulations were made under s 59(a) of the old Act by reference to which the National Native Title Tribunal and the Federal Court could discharge the obligation imposed on each by s 57(2)(c) of the old Act to determine which prescribed body was to perform the non-trust functions in a case where there was a determination of the existence of native title and a determination that the native title rights and interests were not to be held in trust but rather by the common law holders, both s 59 and s 57(2) have been expressly amended by the 1998 amendments and no regulations have yet been made which are necessary before the Court can make the determination required by s 57(2)(c). Parliament, by having acted to make it clear that the regulations made for the purposes of the old ss 59(a) and 57(2)(c) are not to be treated as the regulations to be followed by the Court in making the determination prescribed by s 57(2)(c) of the amended Act, and that new regulations are necessary, has given some indication that its intention is that a s 57(2)(c) decision identifying a particular prescribed body corporate (where appropriate) is not necessarily to be made simultaneously with the relevant s 55 determination.

Although his Honour did not discuss the particular matter, Lee J in Ben Ward v State of Western Australia (Federal Court of Australia, unreported, 24 November 1998) applied ss 55, 56 and 57 in the way I think they should be understood as operating: his Honour there made a determination under s 55 as to the existence of native title and an order implementing the procedure which s 56(2) and 57(2) directs the Court to follow in order to make a decision on whether the native title rights are to be held in trust and, if not, a decision upon who is to be the prescribed body corporate for the purposes of s 57(2).