BHP licence
8 It was common ground before the primary judge and in BHP's appeal that miscellaneous licence L53/109 (referred to as the BHP licence) was a future act that passed the freehold test but in respect of which the State did not comply with the requirements of s 24MD(6B) of the NTA.
9 To understand this, it is necessary to appreciate the following.
10 By s 10 of the NTA:
Native title is recognised, and protected, in accordance with this Act.
11 By s 11(1) "native title is not able to be extinguished contrary to" the NTA.
12 By s 227 of the NTA:
An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.
13 Acts that affect native title are categorised by Div 2 of Pt 15 of the NTA as past acts, intermediate period acts and future acts (see ss 228-233).
14 Section 233 defines a future act in a manner that includes acts that take place after 1 January 1994 and which is to any extent invalid but would be valid to that extent if any native title in relation to the land or waters did not exist, and if it were valid to that extent, would affect the native title.
15 Division 3 of Pt 2 of the NTA (ss 24AA-44G) concerns future acts. Division 3 is divided into Subdivisions A to Q.
16 Section 24AA, in Subdivision A, includes these provisions:
(2) 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.
(3) A future act will be valid if the parties to certain agreements (called indigenous land use agreements - see Subdivisions B, C and D) consent to it being done and, at the time it is done, details of the agreement are on the Register of Indigenous Land Use Agreements. An indigenous land use agreement, details of which are on the Register, may also validate a future act (other than an intermediate period act) that has already been invalidly done.
(4) A future act will also be valid to the extent covered by any of the following:
(a) section 24FA (future acts where procedures indicate absence of native title);
(b) section 24GB (acts permitting primary production on non-exclusive agricultural or pastoral leases);
(c) section 24GD (acts permitting off-farm activities directly connected to primary production activities);
(d) section 24GE (granting rights to third parties etc. on non-exclusive agricultural or pastoral leases);
(e) section 24HA (management of water and airspace);
(f) section 24IA (acts involving renewals and extensions etc. of acts);
(fa) section 24JAA (public housing etc.);
(g) section 24JA (acts involving reservations, leases etc.);
(h) section 24KA (acts involving facilities for services to the public);
(i) section 24LA (low impact future acts);
(j) section 24MD (acts that pass the freehold test- but see subsection (5));
(k) section 24NA (acts affecting offshore places).
(5) In the case of certain acts covered by section 24IC (permissible lease etc. renewals) or section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a "right to negotiate").
(6) This Division provides that, in general, valid future acts are subject to the non-extinguishment principle. The Division also deals with procedural rights and compensation for the acts.
17 It will be apparent that s 24AA(4)(j) refers to s 24MD that provides for acts that pass the freehold test. The freehold test is provided for in ss 24MA (legislative acts) and 24MB (non-legislative acts) of the NTA. The BHP licence is a non-legislative act. By s 24MB(1)(b)(i) such an act passes the freehold test if "the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it". As noted, the BHP licence passed the freehold test. Section 24MD thus applies. Section 24MD provides that:
(1) If this Subdivision applies to a future act, then, subject to Subdivision P (which deals with the right to negotiate), the act is valid.
18 It was also common ground before the primary judge that s 24MD(6B)(b) (which refers to the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility…associated with mining) applied, with the consequence that the State was required to comply with the notification and consultation requirements in s 24MD(6B)(c)-(g) of the NTA. To the extent that the applicant, during the hearing of the appeal, attempted to submit that there was also non-compliance with s 24MD(6A), which provides that "[t]he native title holders, and any registered native title claimants in relation to the land or waters concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned", no such case was put below. Nor can the case be put on appeal as it would require BHP to have an opportunity to adduce further evidence.
19 Two further matters should be noted about the statutory scheme. First, s 24MD(1) refers to Subdivision P. Subdivision P does not apply to all acts. Section 26 specifies the future acts to which Subdivision P applies. The grant of the BHP licence is not an act identified in s 26 as an act to which Subdivision P applies because it is within an exclusion in s 26(1)(c)(i), being a right to mine "created for the sole purpose of the construction of an infrastructure facility …associated with mining". Second, s 24OA provides that:
Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.
20 The primary judge's conclusion that the BHP licence was invalid because it was granted without compliance with s 24MD(6B) is in error. Section 24MD(1) provides that if Subdivision M applies to a future act then it is valid, subject to Subdivision P. Accordingly, if Subdivision M applies, validity is conditional only upon Subdivision P. Subdivision P does not apply to the BHP licence. It follows from s 24MD(1) that the BHP licence is valid.
21 The primary judge concluded that the context of the NTA read as a whole supported the contrary view. We disagree.
22 First, s 10 recognises and protects native title "in accordance with this Act". Similarly, by s 11 native title is not extinguished "contrary to this Act". The provisions of the NTA thus govern how the object of the Act specified in s 3(a) (to provide for the recognition and protection of native title) is to be achieved. Similarly, the provisions of the NTA govern how the object in s 3(b) (to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings) may be achieved. The objects are not free-standing. They are not to be achieved other than in accordance with the provisions of the NTA.
23 Second, ss 24AA(2) and (4) both use the concept of "covered by" as the criterion for validity. Thus, a future act will be valid if it is "covered by" the nominated provisions, which include s 24MD. As BHP submitted, to be "covered by" a provision means no more than that the particular act in question is an act of the class to which any of the listed sections in s 24AA(4) apply. This may be contrasted with alternative language that the legislature could have used. For example, s 24AA(4) does not provide that a future act will be valid to the extent the act "complies" with" or "satisfies" the nomination sections. It suffices if the act is "covered by" one of the nominated sections. Contrary to the applicant's submission, there is a difference between s 24AA(5) and (6). Section 24AA(5) identifies that for certain acts to be valid it is necessary to satisfy Subdivision P. Section 24AA(6) states that the Division "also deals with procedural rights and compensation for the acts". It is apparent that the procedural rights in Division 3 are not said by s 24AA(6) to condition validity. The requirements of Subdivision P, by contrast, are said by s 24AA(5) to condition validity.
24 Third, it is difficult to improve on BHP's description of the categories of future acts and the statutory scheme thereby established. As BHP put it:
…Subdivisions F-N of Part 2 cover various future acts and provide for validation on three levels:
(a) those future acts that are likely to have the least impact on native title are validated without conditions or further requirements (other than the payment of compensation). For example, this is the case for many types of primary production on non-exclusive agricultural or pastoral leases (Subdivision G); making legislation managing water, aquatic resources or airspace (Subdivision H; s 24HA(1)); and future acts defined as "low impact" (Subdivision L);
(b) future acts that are likely to have a greater impact on native title are validated and an associated notification regime is imposed. For example, the provision of public housing (Subdivision JAA); the provision of certain facilities for services to the public (Subdivision KA); and acts, other than those involving a right to mine, that pass the freehold test (Subdivision M); and
(c) two species of future acts that are likely to have the greatest impact on native title because they involve a right to mine (or certain kinds of compulsory acquisition) are validated subject to compliance with the right to negotiate in Subdivision P: s 26(1A) and (1), NTA.
This three-fold classification evinces a legislative intention that future acts that do not involve rights to mine will not be invalidated by a failure to adhere to procedural requirements.
25 Fourth, the language of the provisions is internally consistent. Thus, s 24MD(1) states that if Subdivision M applies to a future act then, subject to Subdivision P, the act is valid. The associated procedural and compensation requirements in s 24MD(3)-(8) are not said to condition validity. The same structure is evident in other provisions:
(1) s 24GB(5) provides that if the section applies to a future act, the act is valid. It does not identify the subsequent procedural requirements in s 24GB(9) as conditioning validity;
(2) s 24HA(3) provides that the "act is valid" without reference to the procedural requirements in s 24HA(7);
(3) s 24ID(1) provides that "subject to Subdivision P …the act is valid" but makes no reference to the procedural requirements in s 24ID(3);
(4) s 24JB(1) provides that if Subdivision J applies to a future act, the act is valid without reference to the procedural requirements in ss 24JB(6) and (7);
(5) s 24KA(3) provides that if Subdivision K applies to a future act, the act is valid without reference to the procedural requirements in ss 24KA(7)-(9);
(6) s 24LA(3) provides that if Subdivision L applies to a future act, the act is valid; and
(7) s 24NA(2) provides that if Subdivision N applies to a future act, the act is valid without reference to the procedural requirements in ss 24NA(8)-(10).
26 Importantly, another provision takes a different structure which reinforces the conclusion that this part of the NTA expressly identifies those provisions which, if not satisfied, result in invalidity of the future act. Thus, s 24JAA(4) provides that if Subdivision JA applies to a future act then "subject to subsections (5) and (6), the act is valid". Subsections (5) and (6) expressly identify that such an act is invalid if not done in accordance with notification and consultation requirements.
27 Fifth, the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) referred to s 24HA(7) of the NTA (which imposes notification requirements on acts covered by the section) and stated, in that regard, that a failure to notify under that regime "will not affect the validity of the future act". There is no discernible difference between this provision and the other procedural provisions in Div 3 of Pt 2 of the NTA.
28 Sixth, the role of s 24OA in the statutory scheme is apparent from s 24AB, particularly s 24AB(2) which provides that:
To the extent that a future act is covered by a particular section in the list in paragraphs 24AA(4)(a) to (k), it is not covered by a section that is lower in the list.
29 In other words, ss 24FA to 24NA are part of a hierarchy. If an act is within an earlier provision it cannot be in a later provision. This is critical because the procedural and compensation rights in the nominated provisions are different. In such a scheme, the role of s 24OA is clear. It is a residual provision which immediately follows the last provision in the hierarchy, s 24NA. By stating that "[u]nless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title", s 24OA means that a future act will be invalid if it is not made valid by being covered by one provision in ss 24FA to 24NA.
30 Seventh, the text and structure of Subdivision M itself also supports the conclusion that this part of the NTA expressly identifies those provisions which, if not satisfied, result in invalidity of the future act. Section 24MD(1) expressly conditions validity of a future act to which Subdivision M "applies" only by the words "…subject to Subdivision P". Section 24MD(1) does not say, for example, that if a future act satisfies the requirements of Subdivision M then, subject to Subdivision P, the act is valid. The first condition is simply that Subdivision M "applies". Sections 24MA and 24MB, in terms, identify the acts to which Subdivision M "applies". It is thus contrary to the language of the Subdivision to read it as if it said that the Subdivision applies only to acts which satisfy the procedural requirements in ss 24MD(6A)-(8). It is also apparent that the procedural requirements are not expressed to condition validity. Section 24MD(6)(a) makes plain that the procedural requirements in ss 24MD(6A) and (6B) only apply if Subdivision P does not apply. In contrast to s 25(4), in Subdivision P which provides that if "the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title", nothing in ss 24MD(6A)-(8) identifies any such consequence of non-compliance. It cannot be said, as the applicant would have it, that such a consequence should be implied into in ss 24MD(6A)-(8) because those provisions are a substitute for Subdivision P; the provisions constitute their own regime in respect of which the legislature has not provided for invalidity to be the consequence of non-compliance.
31 Eighth, and as BHP submitted, if "a failure to comply with the notification requirements in s 24MD(6B) renders invalid the relevant future act, then the same must presumably be so of the other procedural requirements in Subdivisions F-N, since there is no meaningful distinction between them". Given the detailed nature of the requirements, which include consultation in a number of cases about which reasonable minds may differ whether there has or has not been compliance, the consequence of invalidity for non-compliance is likely to be productive of substantial uncertainty and inconvenience to those who have relied on the act as valid.
32 Ninth, and again as BHP submitted:
a number of the procedural requirements in Subdivision F-N afford native title holders or claimants procedural rights sourced outside the NTA. For example, s 24MD(6A) gives native title holders the same rights they would have if they instead held ordinary title to the land: see also ss 24KA(7) and 24NA(8). Those rights are likely to include those granted under State or Territory legislation, as well as common law rights. There is no discernible legislative intention to invalidate future acts in the event that they are in breach of State and Territory laws over which the Commonwealth legislature has no control.
33 For these reasons the text, structure and context of the NTA do not support the primary judge's conclusion about the consequences of non-compliance with these procedural requirements. In particular, when the statutory scheme is considered as a whole her Honour's analysis of the function and significance of s 24OA cannot be sustained. The primary judge said at [1033] that s 24OA:
… contemplates that other parts of Pt 2 Div 3 will "provide" for a future act to be valid, which each Subdivision does. And each Subdivision so provides by prescribing procedural requirements, in detail, and of varying levels of stringency; or, by not prescribing any procedural requirements. The starting point of s 24OA - the legislative choice made - is the invalidity of future acts in relation to native title. That is, the legislative choice made is that future acts will not have full force and effect on, at least (taking into account the definition of native title in s 223) those native title rights and interests which have been recognised by this Court in a determination, unless the NT Act "provides" that they will. The scheme then sets out, in great detail, the manner in which each kind of future act may have full force and effect on native title. In my opinion, s 24OA compels attendance to the detailed terms on which each kind of future act is to be given force and effect against native title interests. It discloses a legislative intention that compliance with the requirements set out in each Subdivision (including procedural requirements) is a precondition to a future act having force and effect against native title interests. That is the "protection" which is achieved, in combination with the general prohibition contained in s 24OA.
34 As the above discussion discloses, however:
(1) the various sections do not provide for validity "by prescribing procedural requirements". Rather, they expressly provide for future acts to be valid and, in so doing, expressly identify the conditions of validity which, in some but not other cases, include so-called procedural requirements;
(2) s 24OA is not the "starting point". It is the finishing point of a statutory hierarchy of provisions in which the application of an earlier provision excludes the application of all later provisions (s 24AB). It applies only if the act is not covered by an earlier provision and if an expressly stated condition of validity is not satisfied; and
(3) the only legislative intention that is discernible is that invalidity for non-compliance of these provisions is a consequence only if the provisions expressly so provide. The scheme leaves no room for implied invalidity by reason of non-compliance with procedural requirements.
35 It follows that we disagree with the primary judge's conclusion at [1034] that "s 24OA provides sufficient statutory indication of a legislative intention that compliance with procedural requirements is a precondition to a future act having force and effect against native title". For the reasons given, s 24OA supports the contrary conclusion. It is a residual provision to which regard must be had only if an act is not covered by an earlier provision or an expressly stated condition of validity in such a provision (such as the operation of Subdivision P, where so identified as a condition of validity) has not been satisfied.
36 Apart from s 24OA it appears that the primary judge preferred her construction because, as she correctly identified, on our construction, "the whole objection and determination process set out in s 24MD(6B) could be ignored and a future act could still have full force and effect against native title interests, including ones which have been recognised in a determination by this Court" (at [1030]). Her Honour returned to this consequence in detail at [1034]-[1047]). The problem is this; the text and structure of the provisions, construed in context, all point to the legislature having intended precisely that which her Honour found objectionable. Indeed, once the function of s 24OA is properly understood, there is nothing in the statutory scheme which supports the primary judge's construction other than the perceived unfairness of the potential circumvention of notification and consultation requirements for a future act. Her Honour's perceptions of unfairness are hardly ill-founded. There is also some force in her Honour's observation that the possible remedies of declarations and injunctions to restrain a future act which has not been the subject of the required notification and consultation are "wholly unsatisfactory" (at [1036]). But recourse to the imperative language of the procedural requirements is of no assistance. If the language of discretion was used, a question would never arise as to the consequence of breach of a statutory requirement. The consequence of breach of a statutory requirement is always dictated by legislative purpose alone. And legislative purpose is determined by reference to "the language of the relevant provision and the scope and object of the whole statute" (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388-391 citing Tasker v Fullwood [1978] 1 NSWLR 20 at 24).
37 In the case of s 24MD(6B) of the NTA the language of the relevant provision, construed in the context of the NTA as a whole, is intractable. Fidelity to the statute and to the principles of statutory construction, in which legislative purpose is identified from the terms of the legislation construed in context, demand a conclusion contrary to that of the primary judge. There is no doubt that, as the primary judge said at [1042] referring to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294, "the combination of imperative language, detailed prescriptions of steps to be undertaken, and the nature of interests affected can lead to emphatic conclusions about the validity of a decision (or conduct) undertaken without compliance with the statute". But as Hayne J also said in SAAP at [208] it was the "language of the Act and its scope and objects" which pointed "inexorably" to the consequence of invalidity for breach. Here, the scope and objects and context of the NTA as a whole support the conclusion, inescapable once the structure and language of s 24MD(6B) is considered, that the legislature did not intend that an act done in breach of s 24MD(6B) would be invalid. The concern which led the primary judge to a different conclusion, that this enables the notification and consultation provisions to be circumvented, is not anchored in the language of the NTA and thus cannot be given effect. And as was pointed out in the case which the primary judge distinguished, The Lardil Peoples v Queensland [2001] FCA 414; (2001) 108 FCR 453 at [120], future acts usually involve a government authority and it is the relevant government authority which is bound to comply with the notification and consultation requirements. There is no reason to assume that the relevant government authority will not comply with these requirements in the ordinary course. The only reason for non-compliance in the present case was that the BHP licence was granted between the dates of the judgments of the Full Court and High Court in The State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 and Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 respectively when it was believed that certain rights could be granted without regard to the future act provisions.
38 The primary judge recognised that her construction was inconsistent with that of another Full Court in Lardil, which had been followed by two single judges of the Court in Banjima People v Western Australia and Others (No 2) [2013] FCA 868; (2013) 305 ALR 1 and Daniel v State of Western Australia [2004] FCA 1388; (2004) 212 ALR 51. In Lardil French J (as he then was) said:
[58] As appears from the provisions of each of the subdivisions referred to in Div 3 of Pt2, the acts which they validate must be future acts. Their validation by a particular subdivision is conditioned upon their characterisation as a future act to which that subdivision or a section within it applies. The subdivisions which provide for prior notification to registered native title claimants and others do not appear to condition the validity of the future acts to which they apply upon compliance with that requirement. This is consistent with the express statement in the Explanatory Memorandum relating to s 24HA(7). The subdivisions which accord procedural rights to registered native title claimants, which are the same as those accorded analogous interest holders, are similarly structured to the subdivisions providing for notification. Absent some express provision, as in subdivision P, it is not to be supposed, having regard to the statutory setting, that non-compliance with those procedural requirements goes to validity. Consistently with that conclusion, non-compliance with procedural requirements may support injunctive relief restraining the doing of the act until the relevant procedures have been complied with.
[59] The preceding observation is strictly obiter for in the present case the question of the consequences of non-compliance with the procedural rights conferred by subdivisions H, M or N does not arise, even assuming the applicability of one of them to the grant of the Restrict Buoy Mooring Authority. For there was nothing put to his Honour or to this Court by way of contention that the granting of the Restricted Buoy Mooring Authority affected native title rights and interests. In other words, there was no contention that the grant of the Restricted Buoy Mooring Authority was a future act. It was submitted that the definition of a future act could be understood as encompassing an act which "may" affect native title. But this would require a re-writing of the statutory definition in s 233 which would significantly alter the operation of the act. Such a course is not justified by the language of a statute.
39 Merkel J in Lardil at [72] said:
Notwithstanding the threshold difficulty confronting their claim, the appellants addressed extensive argument as to the consequences of a failure to afford procedural rights to native title claimants in accordance with the future act provisions of Div 3 of Pt2 of the NTA. In particular, the appellants argued that non-compliance with those provisions results in invalidity of the future act. For the reasons given by French and Dowsett JJ, there are substantial and cogent grounds for concluding that a future act that falls within an applicable subdivision of Div 3 of Pt2 of the NTA will not be invalid merely because a procedural requirement set out in the subdivision had not been complied with. In my view, however, it is preferable to determine this issue, which is one of considerable importance, in a context where the existence of native title, and the question of how a future act affects it, have been determined.
40 Dowsett J in Lardil said:
[117] The second point concerns the relatively surprising assertion that Parliament intended to invalidate acts because of failure to give notice to registered claimants pursuant to the relevant validating subdivision. There are, to my mind, a number of reasons suggesting that this submission must be incorrect. Firstly, the express wording of each of the validating provisions suggests otherwise. Subsection 24HA(3) validates a future act without any suggestion that such validation is dependent upon compliance with any other aspect of the section or subdivision. Native title rights are not extinguished by the act in question, but enjoyment of them may be suspended. Compensation is payable, but there is no suggestion that payment is a condition of validity. There is also nothing to suggest that compliance with subs24HA(7) is a condition precedent to validity. Similarly, subs24MD(1) validates a future act with no suggestion that validity is dependent upon observation of procedural rights. Subs 24NA(2) is to similar effect. These provisions may be compared to s25 which relates to the right to negotiate. Subs 25(4) expressly provides, concerning future acts:
If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.
[118] That Parliament should have chosen to make express reference to invalidity in this context strongly suggests the absence of any such intention in connection with the other subsections with which I am concerned. It is necessary to keep in mind the observations of the majority (McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at pars 91-para. Their Honours there observed:
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".
[119] I see no reason why the same test should not be applied for present purposes.
[120] Secondly, I have already referred to the fact that when subs (7) was inserted into s 24HA, the relevant explanatory memorandum offered the view that failure to give notice would not result in invalidity. There is no reason to believe that there was any different intention associated with the conferment of procedural rights in the other validating provisions. Thirdly, although it is not always clear from the wording of those provisions, they will frequently, perhaps usually be concerned with the conduct of government or of some government instrumentality, or with conduct pursuant to government authority. Such conduct will presumably have social value. It seems relatively unlikely that Parliament intended to invalidate such acts merely because no notice had been given to a registered native title claimant, even in the event that the claim turned out to be entirely without merit. Such an interference with state government could hardly be justified, constitutionally or politically, if there were no native title to protect. Of course that says nothing about the availability of interlocutory relief.
41 The primary judge distinguished Lardil on two bases. First, because the above observations in Lardil are obiter dicta (at [1003]). Second, because, as her Honour put it, "Lardil was not a case dealing with native title rights and interests which had been recognised as existing" (also at [1003]). We consider her Honour's approach in this regard to be in error. In Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553 Black CJ, Hill, Sundberg, Marshall and Kenny JJ identified the importance of the doctrine of precedent to the question whether one Full Court should reconsider a previous Full Court decision. Their Honours said:,
[27] It is not in doubt that a Full Court of this Court has power to decline to follow the previous decision of a differently constituted Full Court. The Court is not bound to perpetuate error if error there be. Nor is it in doubt that while the Court has that power, it is a power which should be exercised with great care. The doctrine of precedent, which is fundamental to the common law, brings with it the consequence that decisions of an intermediate court of appeal will be binding on single judges within the same court hierarchy. They will be relied upon by the broader community and the profession. Decisions of a Full Court of this Court are entitled to due respect and will not be lightly departed from.
…
[29] A differently constituted Full Court would, of course, decline to follow the decision of another Full Court if it concluded that the previous decision was clearly erroneous. It would be wrong to do this merely because the matter was one on which minds might differ…
42 In Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 the same principle was held to apply to intermediate courts of appeal in different jurisdictions. Thus, at [135] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said:
Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.
43 The same approach applies to single judge decisions (BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; (2007) 162 FCR 234 at [83]-[88]). The obiter dicta in Lardil was fully reasoned. As indicated, Lardil has also been followed by two single judges of this Court. Thus, the status of the reasoning as obiter dicta was not a proper foundation to depart from the Full Court's construction. The distinction the primary judge drew between claimed and established native title is also not supported by the NTA, the reasoning in Lardil or the subsequent single judge decisions supports. As was pointed out in Lardil at [120], if invalidity is the consequence of non-compliance with the procedural requirements, then that consequence applies to native title claims irrespective of their merits. The fact that the claim to native title in the present case was established could not affect the question of construction. The primary judge did not conclude that the construction in Lardil was plainly wrong and thus ought to have applied it. For the reasons given we consider the construction in Lardil to be correct.
44 Contrary to the applicant's submission, Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 346 ALR 1 does not support the primary judge's conclusion. The outcome in that case, that failure to comply with requirements for the grant of a mining lease under the Mining Act invalidated the mining lease, was based on the approach endorsed in Project Blue Sky. As reasoned at [84]-[89] in Forrest, the prescriptive requirements were apt to reduce the administrative burdens on the responsible Department, yield advantages to third parties who would not thereby be "troubled unnecessarily or prematurely by half-baked proposals", ensure objections could be prepared with reference to the required information and thus on an informed basis, and prevent "land-banking" by mining companies. As a result, to focus in isolation on the statement in [85] that "where non-observance of a condition bearing upon the exercise of a statutory power would work to the material disadvantage of individuals for whose protection the condition exists, considerations of justice and convenience tell strongly in favour of holding invalid acts done in neglect of the condition" is inappropriate.
45 For these reasons BHP's appeal must be allowed and the orders constituting the determination of native title made on 27 April 2017 must be amended to reflect the validity of the BHP licence. BHP does not seek its costs of the appeal.