QGC Pty Limited v Bygrave (No 2)

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FEDERAL COURT OF AUSTRALIA

QGC Pty Limited v Bygrave (No 2) [2010] FCA 1019

Citation: QGC Pty Limited v Bygrave (No 2) [2010] FCA 1019
Parties: QGC PTY LIMITED ACN 089 642 553 v LOUISE BYGRAVE, DELEGATE OF THE NATIVE TITLE REGISTRAR and RUSSELL TATOW, PATRICK SILVESTER, CYNTHIA KEMP, EVE FESL, TROY NOBLE, FRED TULL, FERGUS WATERTON, RICHARD DOYLE AND MADONNA BARNES ON BEHALF OF THE IMAN PEOPLE #2 and QUEENSLAND SOUTH NATIVE TITLE SERVICES LIMITED
File number: QUD 147 of 2010
Judge: REEVES J
Date of judgment: 17 September 2010
Corrigendum: 22 September 2010
Catchwords:

ADMINISTRATIVE LAW – judicial review – decision of Delegate of National Native Title Registrar not to give notices of an Indigenous Land Use Agreement (ILUA) under s 24CH of the Native Title Act 1993 (Cth) – whether decision within the terms of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – consideration of whether the decision was made under an enactment – Held that the plain language and statutory context of s 24CH indicated that the Delegate was not expressly or impliedly required or authorised under s 24CH to make any decision about whether the ILUA met the prerequisite provisions of the Native Title Act 1993 (Cth) before giving notice of it in accordance with s 24CH – the decision was therefore not a decision under an enactment – however decision reviewable under s 39B of the Judiciary Act 1903 (Cth)

NATIVE TITLE – Indigenous Land Use Agreements (ILUA) – requirements for registration – Delegate concluded that an agreement was not an ILUA under the Native Title Act 1993 (Cth) because one of the nine persons comprising the registered native title claimant (RNTC) had refused to sign it and therefore this person was not a party to the agreement contrary to s 24CD of the Native Title Act 1993 (Cth)

NATIVE TITLE – construction of s 24CD of the Native Title Act 1993 (Cth) – native title rights and interests are generally held by a large group of indigenous people where the membership is constantly fluctuating – such an unincorporated group of persons does not constitute a legal person, it has no existence separate from the members of the group and therefore cannot make a binding contract – the purpose of s 24CD is to overcome this difficulty by providing a statutory mechanism by which such a group of persons can enter into an ILUA under the Native Title Act 1993 (Cth) – this requires a legal person or persons to act as their representative thereby allowing them to enter into an ILUA – consideration of whether an RNTC is a legal person with a legal personality distinct from its members – Held an RNTC is not a legal person as the definition of RNTC in s 253 of the Native Title Act 1993 (Cth) relies upon the individuals who comprise it and the Native Title Act 1993 (Cth) specifies other bodies that serve similar roles to be corporate bodies

NATIVE…

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Details
Case
[2010] FCA 1019
Decision Date

CaseChat Overview and Summary

The case of QGC Pty Limited v Bygrave (No 2) involved a dispute regarding the validity of an Indigenous Land Use Agreement (ILUA) under the Native Title Act 1993 (Cth). The primary issue before the court was whether the Delegate of the National Native Title Registrar's decision to not give notice of the ILUA under s 24CH of the Act was within the terms of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The dispute centred on whether the ILUA met the prerequisite provisions of the Act before notice could be given. Additionally, the court had to interpret s 24CD of the Native Title Act 1993 (Cth) to determine if an RNTC is a legal person and if the requirement for all persons in a native title group to be parties to an ILUA includes all individuals who comprise the RNTC.

The court examined the statutory context of s 24CH and concluded that the plain language and context did not expressly or impliedly require or authorise the Delegate to decide whether the ILUA met the prerequisite provisions of the Act before giving notice. The decision was thus not a decision under an enactment, but the court found it reviewable under s 39B of the Judiciary Act 1903 (Cth). In interpreting s 24CD, the court held that an RNTC is not a legal person as it relies on the individuals who comprise it, and the Act specifies other bodies that serve similar roles as corporate bodies. The court also found that "all" in s 24CD(2)(a) refers to any RNTCs for the area of land, not all individuals who comprise the RNTC. The requirement for "person" in s 24CD(1) refers to those persons or entities described in s 24CD(2) and (3) whether they are legal persons or not.

The court further clarified that s 24CD does not mandate collective or unanimous action by the members of an RNTC acting as representative parties. An individual member cannot veto an ILUA by refusing to become a representative party. The court held that it is open to the native title contracting group to rely on the specific process outlined in the Act for evidence of assent rather than requiring signature. The authorisation given to the applicant by the native title claim group under s 251B does not extend to performing any role under the ILUA provisions of the Act.

Ultimately, the court set aside the Delegate’s decision that the QGC – Iman agreement did not meet the requirements of s 24CD(1) and (2)(a) of the Act. The court declared that the requirements of s 24CD(1) and (2)(a) had been met by naming the nine second respondents as parties to the agreement. The Delegate was directed to give notice of the QGC – Iman agreement in accordance with s 24CH of the Act and to deal with the application to register the agreement according to law.

Orders

Orders of the court

1. That part of the Delegate’s decision, in which she found that the requirements of s 24CD(1) and (2)(a) of the Act had not been met, and consequently found that the QGC – Iman agreement was not an indigenous land use agreement within the meaning of s 24CA of the Act, be set aside.

2. By way of a declaration that, in relation to the QGC – Iman agreement, the requirements of s 24CD(1) and (2)(a) of the Act have been met by naming as parties to the agreement the nine second respondents whose names appear in the entry on the Register of Native Title Claims as the applicant in relation to the Iman #2 claim.

3. The Delegate be directed to:

(a) give notice of the QGC – Iman agreement in accordance with s 24CH of the Act; and

(b) otherwise deal with the application to register the QGC – Iman agreement according to law.

Note:

Background

Background to the litigation

Indigenous Land Use Agreements or ILUAs play a very important role under the Native Title Act 1993 (Cth) (“the Act”). In broad terms, they can allow persons other than the native title holders to carry out activities on land or waters, referred to in the Act as “future acts”, and affect any native title rights and interests held in that land or waters, without those acts being invalid under the provisions of the Act that protect native title. Given this effect, it may not be surprising that an agreement has to meet various pre-requisites set out in the Act before it can be recognised as an ILUA and operate in this way. These proceedings concern one such agreement. As will appear below, I have ultimately concluded that this agreement meets the disputed prerequisites for an ILUA under the Act. That conclusion has required me to review the Act in some detail and to grapple with its many novelties, complexities and idiosyncrasies. In this statutory environment, any exercise in construction is fraught with difficulty and it not always possible to achieve an entirely satisfactory result. FACTUAL AND LEGISLATIVE BACKGROUND The Iman People have made an application for the determination of native title under the Act in relation to an area of land in southern Queensland. Their application is known as the Iman #2 claim. The nine second respondents are the authorised persons who are jointly identified as the “applicant” for the Iman #2 claim: see s 61(2) of the Act. As such, they are also the registered native title claimant (“RNTC”): see ss 253 and 186. QGC Pty Limited wants to develop a natural gas project in the Surat Basin in southern Queensland. The Iman #2 claim covers the area of land where this project is to be located. This necessarily involves QGC undertaking “future act” activities on that land that will affect the native title rights and interests the Iman People claim to hold. In late 2008, QGC commenced negotiations with the Iman People with a view to entering into an agreement which would operate as an ILUA. Those negotiations eventually resulted in a written agreement being prepared, which I will refer to in these reasons as the QGC – Iman agreement. The first section of the QGC – Iman agreement is headed “Parties”. It describes the parties to the agreement as follows:QGC Limited ACN 089 642 553 and on behalf of QGCRussell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle and Madonna Barnes in their capacity as the Registered Native Title Claimant for the Iman People #2’s Native Title Claim (RNTC). The QGC – Iman agreement was submitted to an authorisation meeting of the Iman People on 5 December 2009. At that meeting, the members of the Iman #2 claim group were present, together with a number of other indigenous persons who claimed to hold native title in relation to the land, but were not at that time included in the Iman #2 claim group. In order to avoid the many other expressions that are expressly defined in the Act, where it is appropriate I will refer to this group of persons in these reasons as the native title contracting group. During the meeting, that group agreed to, and adopted, a decision-making process and then followed that decision-making process to pass a number of resolutions. They included resolutions:·authorising the making of the QGC – Iman agreement; and·authorising QGC to apply to the Native Title Registrar to have the QGC – Iman agreement registered on the Register of ILUAs.The latter was also reflected in cl 5.1(c) of the QGC – Iman agreement, which provided that: “The Parties agree to this Agreement being registered”. In addition, the members of the Iman #2 claim group separately resolved to direct that all, or a majority of, the members of the RNTC, sign the QGC – Iman agreement.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

To similar effect, in the earlier decision of Project Blue Sky Inc v Australian Broadcasting Tribunal (1998) 194 CLR 355; [1998] HCA 28 (“Project Blue Sky”), the majority (McHugh, Gummow, Kirby and Hayne JJ) held that a legislative provision should be construed: “by reference to the language of the instrument viewed as a whole”; and by considering: “the context, the general purpose and policy of [the] provision and its consistency and fairness”. They added that such a consideration would normally begin by: “examining the context of the provision that is being construed”: at [69].The Delegate made her decision under s 24CH While the Delegate’s decision predominantly involved her construing s 24CD of the Act, the particular provision under which she purported to decide to act, or not to act, was s 24CH. So much is clear, in my view, from the first paragraph of her reasons for decision where she said that: “This document sets out my reasons for the decision to not give notice of the Agreement in accordance with s 24CH of the Act”. Section 24CH(1) provides:(1) The Registrar must:(a)give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:(i)the Commonwealth Minister;(ii)if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;(iii)any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;(iv)any local government body for the area covered by the agreement;(v)any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and(b)notify the public in the determined way of the agreement in accordance with subsection (2).The statutory context and purpose of s 24CH – the ILUA provisions of the Act Before considering whether the language of this provision expressly or impliedly required or authorised the Delegate to make the decision she did, it is convenient to provide some background to its statutory context and purpose. Division 3 of Pt 2 of the Act, which includes s 24CH, primarily deals with “future acts” and ILUAs. That is made clear in one of the introductory sections, s 24AA(2), which states that: “basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not”. Section 24AA(3) then provides, among other things, that: “A future act will be valid if the parties to [an ILUA] consent to it being done and, at the time it is done, details of the [ILUA] are on the Register of Indigenous Land Use Agreements”. For present purposes, a “future act” is any “act” (as broadly defined in s 226) which “affects” (as defined in s 227), ie extinguishes, or is wholly or partly inconsistent with the continued existence, enjoyment, or exercise of, native title: see s 233.

Ratio Decidendi

Legal Principle Established

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