Weribone v Queensland (No 2)

Case [2013] FCA 485

FEDERAL COURT OF AUSTRALIA

Weribone on behalf of the Mandandanji People v State of Queensland (No 2)
[2013] FCA 485

Citation: Weribone on behalf of the Mandandanji People v State of Queensland (No 2) [2013] FCA 485
Parties: LESLIE WERIBONE AND OTHERS ON BEHALF OF THE MANDANDANJI PEOPLE v STATE OF QUEENSLAND AND OTHERS (ACCORDING TO THE SCHEDULE)
File number: QUD 366 of 2008
Judge: RARES J
Date of judgment: 23 May 2013
Catchwords:

COURTS AND JUDGES – power of the Court to make interlocutory orders to protect or prevent frustration or abuse of its process pending determination of application for determination of native title under s 225 of Native Title Act 1993 (Cth) – power of Court to make interlocutory orders under ss 22 and 23 of Federal Court of Australia Act 1976 (Cth) in proceedings for determination of native title under s 225 of Native Title Act 1993 (Cth) – power to protect and prevent frustration of Court’s processes as incident of final relief – whether Court has jurisdiction to grant interlocutory relief affecting moneys paid or payable pursuant to indigenous land use agreements (ILUAs) made under the Native Title Act 1993 (Cth) in proceedings seeking determination of native title – where anthropological dispute as to who are persons with native title rights and interests in claim area – where status of applicant under the Native Title Act 1993 (Cth) used to receive benefits under ILUAs and s 31 agreements – whether fiduciary duties owed by persons with procedural rights as native title claimants to ultimate native title holders – whether interlocutory orders sufficiently related to final relief sought in the particular proceedings before the Court, being the determination of native title under s 225 of the Native Title Act 1993 (Cth) – where final relief under s 225 could cause automatic removal of ILUAs from Register of ILUAs under s 199C(1) of the Native Title Act 1993 (Cth)

Held:  interlocutory orders made on 15 March 2013 were within power of the Court

Legislation:

Aboriginal Cultural Heritage Act 2003 (Qld)

Native Title Act 1993 (Cth) ss 3, 4(1), 10, 13(1), 31, 61(1), 24AA, 24CA-24CL, 24CC, 24CG(3)(b), 203BE, 213, 223(1), 224(6), 225, 226(2), 227, 238, 251A, 253
Federal Court of Australia Act 1976 (Cth) ss 22, 23, 37M

Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 applied
Brown v South Australia (2010) 189 FCR 540 referred to
Cardile v LED Builders Pty Limited (1999) 198 CLR 380 applied
Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 applied
CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 applied
Edwards v Santos Ltd (2011) 242 CLR 421 referred to
Jackson v Sterling Industries Limited (1987) 162 CLR 612 applied
Ngurli Ltd v McCann (1953) 90 CLR 425 applied
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 applied

Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148…

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Details
AGLC
Weribone on behalf of the Mandandanji People v State of Queensland (No 2) [2013] FCA 485
Case
[2013] FCA 485
Decision Date

CaseChat Overview and Summary

The case of Weribone v Queensland (No 2) involved a complex dispute concerning native title rights and the application of interlocutory orders in proceedings under the Native Title Act 1993 (Cth). The applicants sought clarification and modification of earlier interlocutory orders that had been made to manage funds and processes in relation to indigenous land use agreements (ILUAs) during the determination of native title claims. The dispute centered on whether the Court had the jurisdiction to make interlocutory orders that would affect moneys paid or payable under ILUAs, and whether such orders were sufficiently related to the final relief sought, which was the determination of native title.

The legal issues before the Court included the extent of its power to make interlocutory orders under sections 22 and 23 of the Federal Court of Australia Act 1976 (Cth) in proceedings for the determination of native title under section 225 of the Native Title Act 1993 (Cth). Additionally, the Court had to consider whether fiduciary duties were owed by persons with procedural rights as native title claimants to ultimate native title holders, and if there were any limitations on the Court's power to grant interlocutory relief affecting funds under ILUAs.

The Court held that the interlocutory orders made on 15 March 2013 were within its power. It was emphasised that the orders were designed to protect and prevent the frustration of the Court's processes pending the determination of the native title claim. The Court noted that the interlocutory orders could result in significant work for the Registrar and that it would be more appropriate for private persons qualified to act as trustees, liquidators, or receivers to handle the implementation. The Court also intended for the mediation process to identify any further exceptions or legitimate entitlements that needed to be protected or reflected in the orders. The Mandandanji companies' interlocutory application was dismissed, but they were allowed to propose reasonable amendments to the orders post-mediation.

The Court's decision was grounded in the provisions of the Native Title Act 1993 (Cth) and related sections concerning the registration and effect of ILUAs. The Court concluded that the interlocutory orders were sufficiently related to the final relief sought and that the mediation process would provide an opportunity for the various interested parties to negotiate and propose appropriate variations to the orders. The Court's ruling underscored the importance of ensuring that all persons who hold or may hold native title are identified and have authorised the making of the agreement, as per the statutory requirements.

Orders

Orders of the court

1. The interlocutory application filed on 26 April 2013 be dismissed.

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

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

It is apparent now that there will be significant sums of money payable to, and considerable work for, the Registrar in implementing and acting under the 15 March orders. Those are tasks better performed by private persons qualified to act as trustees, liquidators or receivers. I asked the parties at the hearings on 26 and 30 April 2013 to identify a suitable person who could be appointed as a trustee in the 15 March orders in lieu of the Registrar. Once the mediation concludes I will resolve any outstanding issues and amend the 15 March orders as appropriate, including by appointing a suitable person as trustee.Conclusion The Mandandanji companies interlocutory application must be dismissed. They will still be able to propose appropriate and reasonable amendments to the 15 March orders consistent with my principal reasons and those above. At the time that the 15 March orders were made it was not clear, and still is not, what appropriate further exceptions ought be made to protect or reflect the legitimate entitlements of any person bound them to receive payments or benefits. I intended that the identification of those exceptions would occur, at least initially, in the mediation under order 16, where the various persons presently or potentially interested in those matters could freely and frankly negotiate suggested variations to the 15 March orders.

Ratio Decidendi

Legal Principle Established

An ILUA may be given “for any consideration” by force of s 24CE(1). Any party to an ILUA under Subdiv C may, if all the other parties agree, apply in writing to the Registrar for it to be registered on the ILUA Register (s 24CG(1)). Such an application must be accompanied by the ILUA and any other prescribed documents or information (s 24CG(2)) and as s 24CG(3) provides:“24CG Application for registration of area agreements(3) Also, the application must either:(a)have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 203BE(1)(b) in relation to the area; or(b)include a statement to the effect that the following requirements have been met:(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;(ii)all of the persons so identified have authorised the making of the agreement;Note: The word authorise is defined in section 251A.together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.” (bold non-italic emphasis added) A representative body must not certify for the registration of an ILUA under s 203BE(5)(b) unless 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 covered by the ILUA, first, both have been identified and, secondly, have authorised its making in accordance with s 251A. Under s 251A “persons holding native title in relation to lands and waters covered by an indigenous land use agreement authorise the making of the agreement” in a process similar to that in s 251B. Notably, however, s 251A creates the power to authorise for the holders of native title alone. That is in contrast to s 251B which gives such a power to “all the persons in a native title claim group”. The Registrar must give notice of an ILUA that is lodged for registration to, among others, the relevant Commonwealth, State or Territory Ministers, representative body, local government bodies and the public (s 24CH)(1)). The public notice has to inform persons who claim to hold native title in relation to any of the lands and waters that they have three months to take particular action depending on whether the application for registration of the ILUA had been certified by a representative body or authorised by the claim group under s 251A. Provided that certain conditions are met, the Registrar must register the ILUA if no objections are made or if they are, those objections are subsequently withdrawn or do not meet particular criteria (s 24CH(2)-24CL). Next, Subdiv E of Div 3 of Pt 2 deals with the effect of registration of an ILUA. Importantly, s 24EA(1) and (2) provide:“24EA Contractual effect of registered agreement(1) While details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect, in addition to any effect that it may have apart from this subsection, as if:(a) it were a contract among the parties to the agreement; and(b)all persons holding native title in relation to any of the land or waters in the area covered by the agreement, who are not already parties to the agreement, were bound by the agreement in the same way as the registered native title bodies corporate, or the native title group, as the case may be.Note: Section 199B specifies the details of the agreement that are required to be entered on the Register.Only certain persons bound by agreement(2) To avoid doubt, a person is not bound by the agreement unless the person is a party to the agreement or a person to whom paragraph (1)(b) applies.” (emphasis added)