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Northern Land Council v Quall

Northern Land Council v Quall

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Case Copied 7 October 2020 65 min read

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HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, KEANE, NETTLE AND EDELMAN JJ
NORTHERN LAND COUNCIL & ANOR APPELLANTS
AND
KEVIN LANCE QUALL & ANOR RESPONDENTS
Northern Land Council v Quall
[2020] HCA 33
Date of Hearing: 12 & 13 August 2020
Date of Judgment: 7 October 2020
D21/2019
ORDER
1.Appeal allowed.
2.Set aside the declaration and order 3 of the orders made by the Full Court of the Federal Court of Australia on 19 June 2019 and, in their place, order that the cross-appeal be dismissed.
3.Set aside orders 1 and 2 of the orders made by the Full Court of the Federal Court on 19 June 2019 and remit to the Full Court of the Federal Court the unresolved appeal to that Court and the unresolved application for leave to adduce fresh evidence in that appeal.
4.In accordance with undertakings given as a condition of the grant of special leave to appeal, the appellants are to bear the first and second respondents' costs of the appeal limited to one set of costs.
5.In accordance with undertakings given as a condition of the grant of leave to intervene, the Attorney-General of the Commonwealth and the Northern Territory are to bear jointly with the appellants the first and second respondents' costs of the appeal as limited pursuant to order 4.

On appeal from the Federal Court of Australia
Representation
S A Glacken QC with R W Kruse for the appellants (instructed by Northern Land Council)
B W Walker SC with A K Flecknoe-Brown for the first respondent (instructed by Robert Welfare & Associates)
P F McIntyre for the second respondent (instructed by McQueens Solicitors)
R J Webb QC with C I Taggart for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
N Kidson QC with L S Peattie for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

KIEFEL CJ, GAGELER AND KEANE JJ. The ultimate question in this appeal is whether the Northern Land Council ("the NLC") has power to delegate to its Chief Executive Officer ("the CEO") the function conferred on it as a representative body by s 203BE(1)(b) of the Native Title Act 1993 (Cth) ("the NT Act") of certifying an application for registration of an indigenous land use agreement ("ILUA") relating to an area of land or water wholly or partly within the area for which it is a representative body subject to satisfaction of the precondition imposed by s 203BE(5) of the NT Act that it is of the opinion that 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 ILUA have been identified and that all of the persons so identified have authorised the making of the ILUA.
The answer is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] HCA 33
Decision Date: 7 October 2020

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Northern Land Council (NLC) and its Chief Executive Officer (CEO) against a decision of the Full Court of the Federal Court of Australia. The dispute concerned the validity of a certificate issued by the CEO, purportedly on behalf of the NLC, certifying an Indigenous Land Use Agreement (ILUA) application. The NLC, as a representative Aboriginal and Torres Strait Islander body, has a statutory function under the *Native Title Act 1993* (Cth) to certify such applications, provided it is satisfied that all reasonable efforts have been made to identify and obtain authorisation from all persons who hold or may hold native title. The central issue was whether this certification function, conferred by s 203BE(1)(b) of the *Native Title Act*, could be delegated by the NLC to its CEO.

The legal issues before the High Court were twofold: first, whether the certification function under s 203BE(1)(b) of the *Native Title Act* was capable of delegation by the NLC to its CEO; and second, whether the CEO could validly perform this function as an agent of the NLC. The NLC contended that its general power under s 27(1) of the *Aboriginal Land Rights (Northern Territory) Act 1976* (Cth) to do all things necessary or convenient for the performance of its functions included the power to delegate the certification function. The respondents argued that the certification function was a personal one that could not be delegated.

The High Court held that the NLC possessed the power to delegate the certification function to its CEO under s 27(1) of the *Aboriginal Land Rights (Northern Territory) Act*. The Court reasoned that if such a delegation occurred, the CEO, acting as a delegate, could perform the function based on their own opinion regarding the identification and authorisation requirements, as permitted by s 34A of the *Acts Interpretation Act 1901* (Cth). Furthermore, by operation of s 34AB(1)(c) of the *Acts Interpretation Act*, any performance of the function by the CEO as a delegate would be deemed to have been performed by the NLC itself for the purposes of both the *Aboriginal Land Rights (Northern Territory) Act* and the *Native Title Act*. Consequently, the appeal was allowed, the declaration and orders of the Full Court were set aside, and the matter was remitted to the Full Court to determine whether the certification function had, in fact, been duly delegated.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the declaration and order 3 of the orders made by the Full Court of the Federal Court of Australia on 19 June 2019 and, in their place, order that the cross-appeal be dismissed.

3. Set aside orders 1 and 2 of the orders made by the Full Court of the Federal Court on 19 June 2019 and remit to the Full Court of the Federal Court the unresolved appeal to that Court and the unresolved application for leave to adduce fresh evidence in that appeal.

4. In accordance with undertakings given as a condition of the grant of special leave to appeal, the appellants are to bear the first and second respondents' costs of the appeal limited to one set of costs.

5. In accordance with undertakings given as a condition of the grant of leave to intervene, the Attorney-General of the Commonwealth and the Northern Territory are to bear jointly with the appellants the first and second respondents' costs of the appeal as limited pursuant to order 4.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, GAGELER AND KEANE JJ NETTLE AND EDELMAN JJ

To the extent that s 27(1) encompasses such a power of delegation, exercise of the power of delegation attracts the operation of ss 34AB and 34A of the AI Act. By operation of s 34AB(1)(c), a function performed by a member of staff as delegate of the Land Council is deemed for the purposes of the ALR Act to have been performed by the Land Council. And by operation of s 34A, if performance of the function is dependent upon the Land Council's opinion in relation to a matter, the member of staff as delegate can perform that function upon his or her own opinion in relation to that matter. Conclusion The result is that the NLC has power under s 27(1) of the ALR Act to delegate to the CEO the certification function conferred on the NLC as a representative body by s 203BE(1)(b) of the NT Act if and to the extent that delegation is objectively necessary or convenient to be done for or in connection with performance of the certification function or other functions of the NLC. If the certification function is duly delegated by the NLC to the CEO under s 27(1) of the ALR Act, the CEO in performing that function is allowed by s 34A of the AI Act to form his or her own opinion about the subject matter of s 203BE(5) of the NT Act. Performance of the certification function by the CEO is then deemed by s 34AB(1)(c) of the AI Act to amount to performance of that function by the NLC for the purposes of the ALR Act. Because performance of the certification function by the CEO amounts to performance of the certification function by the NLC for the purposes of its constating statute, performance by the CEO also amounts to performance of the certification function by the NLC for the purposes of the NT Act.Orders The appeal to this Court must be allowed. The declaration made by the Full Court must be set aside and with it the order made by the Full Court allowing the cross-appeal. They are to be replaced with an order dismissing the cross-appeal. The orders made by the Full Court dismissing the application for leave to adduce fresh evidence in the appeal to it and dismissing the appeal to it must also be set aside. The unresolved appeal to the Full Court, including the unresolved application for leave to adduce fresh evidence in that appeal, is to be remitted to the Full Court. Lest there be any doubt, it should be made clear that the issue remaining for determination in the remitted appeal is whether the certification function conferred on the NLC as a representative body by s 203BE(1)(b) of the NT Act was in fact duly delegated by the NLC to the CEO under s 27(1) of the ALR Act. In accordance with undertakings given as a condition of the grant of special leave to appeal, the NLC and the CEO are to bear Mr Quall's and Mr Fejo's costs of the appeal limited to one set of costs. In accordance with undertakings given as a condition of the grant of leave to intervene, the Attorney-General of the Commonwealth and the Northern Territory are to bear jointly with the NLC and the CEO Mr Quall's and Mr Fejo's costs of the appeal as so limited.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GAGELER AND KEANE JJ, NETTLE AND EDELMAN JJ

The answer is that the NLC has that power of delegation under s 27(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the ALR Act"). If the NLC exercises that power to delegate the certification function to the CEO, the CEO is empowered by s 34A of the Acts Interpretation Act 1901 (Cth) ("the AI Act") to perform the certification function on the basis of the CEO's own opinion in relation to the matters in s 203BE(5) of the NT Act, and certification by the CEO in performance of the delegated function is attributed to the NLC by force of s 34AB(1)(c) of the AI Act.Process for registration of an ILUA Under Div 3 of Pt 2 of the NT Act, a future act affecting native title is valid if, but only if, the parties to the ILUA consent to it being done and, at the time it is done, the ILUA is registered on the Register of Indigenous Land Use Agreements[1]. Registration of an ILUA that is an area agreement under Subdiv C of Div 3 of Pt 2 can occur only on application made by a party to the Native Title Registrar, who is also responsible for the Register of Indigenous Land Use Agreements[2]. [1]Section 24AA(3) of the NT Act.[2]Section 24CG(1) of the NT Act. One requirement for the making of an application for registration of such an ILUA concerns identification of persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA and authorisation by those persons of the making of the ILUA[3]. The requirement can be met in either of two ways.[3]Section 24CG(3) of the NT Act. The first way the requirement can be met is by the application for registration having been certified by all representative bodies for the area in the performance of their functions under s 203BE(1)(b)[4]. If the application has been so certified, any person claiming to hold native title in relation to land or waters in the area covered by the ILUA is entitled within a specified period to object to registration[5] and the Registrar at the end of that period must make a decision[6] to register the ILUA if specified conditions are met or not to register the ILUA if any specified condition is not met[7]. One of the specified conditions on which registration depends involves absence of any unwithdrawn objection[8] or, in the face of an unwithdrawn objection, non-satisfaction on the part of the Registrar that the requirements as to identification and authorisation set out in s 203BE(5) were not met in relation to the certification of the application by any representative body[9]. Faced with an unwithdrawn objection, the question for administrative determination by the Registrar is whether (having regard to information provided by the person making the objection and the representative body concerned[10]) the Registrar is satisfied by the objector that all reasonable efforts have not 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 ILUA have been identified or that one or more of the persons who have been identified have not authorised the making of the ILUA[11]. If the Registrar is so satisfied, the Registrar must not register the ILUA.[4]Section 24CG(3)(a) of the NT Act.[5]Section 24CI of the NT Act.[6]Section 24CJ of the NT Act.[7]Section 24CK(1) of the NT Act.[8]Section 24CK(2)(a) and (b) of the NT Act.[9]Section 24CK(2)(c) of the NT Act.[10]Section 24CK(4) of the NT Act.[11]Accord Kemppi v Adani Mining Pty Ltd [No 2] (2019) 271 FCR 423 at 454-455 [88].