QGC Pty Ltd v Bygrave (No 3)

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FEDERAL COURT OF AUSTRALIA

QGC Pty Limited v Bygrave [2011] FCA 1457

Citation: QGC Pty Limited v Bygrave [2011] FCA 1457
Parties: QGC PTY LIMITED ACN 089 642 553 v LOUISE BYGRAVE, DELEGATE OF THE NATIVE TITLE REGISTRAR, RUSSELL DOCTOR, ELAINE GEORGETOWN, VERONICA JARRETT, RHONDA SANDOW, ROGER KNOX, CYRIL LOGAN AND GARY WOODBRIDGE IN THEIR CAPACITY AS THE REGISTERED NATIVE TITLE CLAIMANT FOR THE BIGAMBUL PEOPLE'S NATIVE TITLE CLAIM (QUD 101 OF 2009), BOB WEATHERALL and NTSCORP LIMITED ACN 098 971 209
File number: QUD 101 of 2011
Judge: REEVES J
Date of judgment: 16 December 2011
Corrigendum: 24 January 2012
Corrigendum: 3 April 2012
Catchwords:

ADMINISTRATIVE LAW – judicial review of decision of delegate of National Native Title Registrar not to register an Indigenous Land Use Agreement under Pt 2 Div 3 Subdiv C of the Native Title Act 1993 (Cth) (the Act)
NATIVE TITLE – Indigenous Land Use Agreements (ILUAs) – requirements for registration – consideration of the statutory scheme governing ILUAs – consideration of the procedure for registering an area agreement under Subdiv C of the Act – ILUA not certified by representative Aboriginal/Torres Strait Islander body therefore subject to the process under s 24CH of the Act

NATIVE TITLE – whether a group of Aboriginal people claiming to hold native title over the ILUA area in conflict with an existing registered native title claim was able to insist on involvement in the authorisation of the ILUA – consideration of Kemp v Native Title Registrar (2006) 153 FCR 38; [2006] FCA 939 – Kemp distinguished – consideration of ss 24CG(3)(b) and 251A – two different groups described with different criteria for membership

Held: the expression in s 24CG(3)(b) “all persons who hold or may hold native title” has an expansive and inclusive meaning – the expression in s 251A(a) and (b) “hold or may hold the common or group rights comprising native title” has a confined and exclusive meaning – the delegate of the Native Title Registrar erred by refusing to register the ILUA

Legislation: Aboriginal Land Regulation 1991 Act (Qld) s 19
Acts Interpretation Act 1901 (Cth) s 22
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3(1), 5, 12
Judiciary Act 1903 (Cth) s 39B
Native Title (Indigenous Land Use Agreements) Regulations 1999 reg 7
Native Title (Prescribed Body Corporate) Regulations reg 4(1)
Native Title Act 1993 (Cth)
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1
Commonwealth of Australia v Clifton (2007) 164 FCR 355; [2007] FCAFC 190
Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150; [2008] FCA 1469
Kemp v Native Title Registrar (2006) 153 FCR 38; [2006] FCA 939
McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633
Murray v National Native Title Tribunal (2003) 132 FCR 402; [2003] FCAFC 220
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Details
Case
[2011] FCA 1457
Decision Date

CaseChat Overview and Summary

The case of QGC Pty Ltd v Bygrave (No 3) involved a dispute concerning the registration of an Indigenous Land Use Agreement (ILUA) under the Native Title Act 1993 (Cth). The parties involved were QGC, which sought to register an ILUA with the Bigambul People, and the respondents, who represented the Kamilaroi/Gomeroi People, challenging the registration process. The central issue was whether the Kamilaroi/Gomeroi People could insist on their involvement in the authorisation process for the QGC–Bigambul agreement, despite not being the primary claimants over the land in question.

The court had to determine the legal meaning of certain provisions in the Act, specifically sections 24CG(3)(b) and 251A, which relate to the registration of ILUAs and the authorisation process, respectively. The court examined the statutory scheme and the purpose behind the ILUA provisions to understand the scope of these sections. It found that the expression "all persons who hold or may hold native title" in section 24CG(3)(b) has an expansive and inclusive meaning, while the expression "hold or may hold the common or group rights comprising native title" in section 251A(a) and (b) has a confined and exclusive meaning.

In its reasoning, the court distinguished the case from Kemp v Native Title Registrar, clarifying that the authorisation process in section 251A does not allow for conflicting groups to insist on their participation if they have not registered their claims under the Act. The court held that the delegate of the Native Title Registrar erred by applying the "not merely colourable" test and by taking into account irrelevant considerations such as the conflicting claims of the Kamilaroi/Gomeroi People.

The court granted QGC the relief it sought, ordering the delegate to register the QGC–Bigambul agreement as an ILUA. The court directed the parties to bring in orders reflecting the conclusions reached in its reasons for decision, giving them seven days to do so.

Orders

Orders of the court

1. Within seven days the parties are to bring in orders to reflect the conclusions reached in the reasons for decision published on 16 December 2011.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

Both the third and fourth respondents made submissions to the delegate on behalf of the Kamilaroi or Gomeroi People in relation to QGC’s application to register the QGC–Bigambul agreement. The words “Kamilaroi” and “Gomeroi” are different names for the same people so I will refer to them throughout these reasons as the Kamilaroi/Gomeroi People.FACTUAL BACKGROUND QGC is involved in the development of the Queensland Curtis Liquefied Natural Gas project. That project involves the extraction of natural gas from the Surat Basin in southern Queensland and transporting it via a pipeline to Curtis Island near Gladstone for processing into liquefied natural gas for export overseas. The Bigambul area includes some of the area of land where this project is to be located. It is not disputed that the Bigambul People’s claim is the only registered native title claim in existence in respect of the project area. To develop the project, QGC will necessarily undertake “future act” activities (defined in [24] below) on the project area that will affect the native title rights and interests that are held in that land. In late 2008, QGC commenced negotiations with the Bigambul People with a view to entering into an agreement that would operate as an ILUA under the Act. These negotiations eventually resulted in the QGC–Bigambul agreement. On 12 December 2009, a meeting was held in Goondiwindi in South West Queensland, of those who hold or may hold native title in the Bigambul area. The main purpose of that meeting was to decide whether to authorise the making of the QGC–Bigambul agreement under the Act. The record of that meeting shows that approximately 141 people attended, including:(a)four people who identified themselves as Kambuwal People;(b)38 people who identified themselves as Kamilaroi/Gomeroi People;(c)six people who identified themselves as Bigambul People and Kamilaroi People;(d)75 people who identified themselves as Bigambul People; and(e)16 people who did not indicate a native title interest. Five resolutions were put to that meeting, all of which were duly passed. They included resolutions:(a)to adopt a decision-making process to authorise the QGC–Bigambul agreement;(b)to authorise the making of the QGC–Bigambul agreement in accordance with the adopted decision-making process; and(c)to authorise QGC to apply to the Native Title Registrar to have the QGC–Bigambul agreement registered on the Register of ILUAs under the Act. Prior to these resolutions being put to the meeting, approximately 40–50 people, a substantial portion of whom were Kamilaroi/Gomeroi People, walked out of the meeting and refused to take any further part in it. Acting in accordance with the resolution described in [17(c)] above, on about 22 July 2010, QGC lodged an application with the Native Title Registrar for registration of the QGC–Bigambul agreement as an ILUA under the Act.THE PURPOSE AND STATUTORY SCHEME OF THE ILUA PROVISIONS OF THE ACT Before detailing the history of the application to register the QGC–Bigambul agreement as an ILUA, it is appropriate to outline the purpose and statutory scheme of the ILUA provisions of the Act. These matters have been examined in a number of judgments of this Court in recent years. They include: Kemp v Native Title Registrar (2006) 153 FCR 38, [2006] FCA 939 (“Kemp”) (at [13]–[25]) per Branson J; Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150, [2008] FCA 1469 (“Fesl”) (at [17]–[34]) per Logan J and my decision in QGC Pty Limited v Bygrave (No 2) (2010) 189 FCR 412, [2010] FCA 1019 (“Bygrave”) (at [19]–[25]).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Because of this conclusion, I do not need to consider whether, or how, the authorisation process in s 251A would operate where two or more conflicting groups have duly registered claims over the same area of land.CONCLUSION For these reasons, on a proper construction of the expressions in ss 24CG(3)(b) and 251A of the Act, I consider that the Kamilaroi/Gomeroi People were not entitled to participate in the authorisation process for the QGC–Bigambul agreement as if they were a conflicting group claiming to hold the common or group rights comprising the native title in some part of the Bigambul area, in circumstances where they had failed, as a group, to file a native title determination application under Div 1 of Pt 3 and have that application registered under Pt 7 of the Act. It follows that, in the terms of the various provisions of s 5 of the ADJR Act relied upon by QGC (particularly s (5)(1)(f) and 5(1)(e) combined with s 5(2)(a)), the delegate erred in law by applying the “not merely colourable” test to assess the entitlement of the Kamilaroi/Gomeroi People to participate in the authorisation process for the QGC–Bigambul agreement, as a conflicting group, and further she erred in law by construing s 251A as she did, and finally she erred by taking account of irrelevant considerations, viz the conflicting claims of the Kamilaroi/Gomeroi People, as a group. I therefore consider that QGC is entitled to relief. The relief it has claimed in its amended application is as follows:1.An order setting aside that part of the Decision, in which the First Respondent found that the requirements of s 24CG(3)(b)(ii) of the NTA are not met, and consequently found that the condition in s 24CL(3) of the NTA is not met.2.A declaration that, in relation the Bigambul – QGC ILUA, the requirements of sections s 24CG(3)(b)(ii) of the NTA are met.3.An order directing the First Respondent to register the Bigambul – QGC ILUA on the Register of Indigenous Land Use Agreements.4.Such further or other order as the Court may deem appropriate. At an early stage of these proceedings, the delegate agreed to abide the decision of the Court and took no further part in the proceedings (see at [8] above). While I consider QGC is entitled to an order along the lines of para 1 above, I have not heard from the delegate as to whether there are any matters yet to be considered by her that may still affect the decision to register the QGC–Bigambul agreement as an ILUA. This obviously bears on the relief sought in paras 2 and 3: see at [125] above. While I cannot readily identify any such matters, I think the preferable course in the circumstances is to ask the parties, including the delegate, to consider these reasons and to then bring in a set of orders to reflect them. If there are no such outstanding matters, then of course those orders may contain a declaration and an order along the lines of paras 2 and 3 (at [125]) above.

Ratio Decidendi

Legal Principle Established

Any party to an area agreement may, if all of the other parties to the agreement agree, apply to the Registrar for the agreement to be registered on the Register (s 24CG(1)): Fesl at [21]. This brings me back to the application QGC lodged to register the QGC–Bigambul agreement I have already mentioned at [19] above.THE QGC–BIGAMBUL AGREEMENT REGISTRATION APPLICATION The QGC–Bigambul agreement registration application was accompanied by a document entitled “Statement to the NNTT” (viz the National Native Title Tribunal) which had attached to it eight other documents. It was also accompanied by a statement in the terms of s 24CG(3)(b) to the effect that:(i)all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) 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(ii)all of the persons so identified have authorised the making of the agreement. Under s 24CG(2), an application for registration must be accompanied by a copy of the agreement and certain other information and documents that are prescribed in reg 7 of the Native Title (Indigenous Land Use Agreements) Regulations 1999. One obvious purpose of these provisions is to ensure the Registrar is provided with the critical details of which notice has to be given under s 24CH of the Act. Those critical details are spelt out in s 24CH(2). They include: the area of land covered by the agreement (see s 24CH(2)(a)); the name and contact address of each party to the agreement (see s 24CH(2)(b)); and the details of the future acts that are to be validated by the agreement (see s 24CH(2)(c)): Bygrave at [24]. Once the Registrar receives a valid application for registration under s 24CG of the Act, he or she is required to give this s 24CH notice. Among other things, this notice has to specify a notification day. That day marks the commencement of a three months notice period for the agreement: s 24CH(2) and (3). From about this point an application for registration of an agreement as an area agreement ILUA takes one of two paths, depending upon whether or not it was certified by the representative Aboriginal/Torres Strait Islander body for the area concerned. Section 203BE(1)(b) and (5) prescribe what is required in such a certificate. Those requirements are essentially identical to the requirements set out in s 24CG(3)(b) (see [31] above). The QGC–Bigambul agreement was not certified by Queensland South. If it had been, the notice of the agreement under s 24CH would have included a notice under s 24CH(2)(d)(i) to the effect that:any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification; or