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 ActNATIVE 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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- Case
- [2011] FCA 1457
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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