QGC Pty Limited v Alberts (No 2)

In QGC Pty Limited v Alberts (No 2), the court was tasked with interpreting an Indigenous Land Use Agreement (ILUA) under the Native Title Act 1993 (Cth), specifically focusing on the implications of a nominated entity's cessation of operations. The dispute arose when QGC Pty Limited, a party to the ILUA, argued that the nominated entity responsible for receiving payments on behalf of the native title holders had ceased to exist, rendering the agreement ineffective. The Federal Court of Australia was called upon to determine whether the ILUA could be implied to include a term allowing for the substitution of a new entity in place of the defunct one.

The central legal issue was whether the ILUA, which did not explicitly provide a mechanism for replacing the nominated entity, could be implied to include such a term. The court also considered whether the general law principles for the implication of terms in fact were applicable to an ILUA and whether the ILUA should be construed as a commercial contract to avoid commercial inconvenience. The court had to balance the need for a practical outcome with the specific statutory framework governing ILUAs.

The court held that an implied term could be inserted into the ILUA to allow for the substitution of a new nominated entity, provided that the process for establishing such an entity was lawful and agreed upon by the native title party. The court reasoned that the statutory framework of the Native Title Act, particularly s 24EA(1), which deems the ILUA to be a contract between the parties and all persons holding native title, supports the implication of terms in fact. The court emphasised that the ILUA should be interpreted in a way that produces a commercial result and avoids commercial inconvenience, even if this involves implying terms not expressly stated in the agreement. The court did not find it necessary to decide whether the ILUA should be construed as a commercial contract for the purposes of applying general law principles of contract interpretation.

In conclusion, the court made a declaration that the ILUA contained an implied term allowing for the substitution of a new nominated entity. The court deferred the drafting of specific orders for the process of arranging meetings and payments to the parties, allowing them to consult with the Registrar of the Tribunal and the representative body. The court’s decision underscores the importance of interpreting ILUAs in a manner that upholds their intended commercial and practical effects, while also respecting the statutory framework governing them.