"Who hold or may hold native title"
135 A number of submissions at the hearing were directed to the meaning of this expression.
136 In this case, the Registrar was not required to determine whether the Rak Mak Mak Marranunggu were persons who hold or may hold native title over the Town of Batchelor. Her task (putting to one side issues of onus) was to consider whether all reasonable efforts had been made to ensure that those who hold or may hold native title over Batchelor had been identified. It is inherent in the process that the making of such reasonable efforts could result in the inclusion of some persons and the exclusion of others. When all reasonable efforts of the requisite kind have been made and some persons have, by that process, been excluded, the Registrar is not entitled to refuse registration of the ILUA.
137 As counsel for the Northern Territory submitted, evidence adduced by objectors tending to prove that they are, or may be, native title holders not identified by the representative body is relevant insofar as it informs the determination of whether the representative body did make the requisite reasonable efforts. Depending on its strength, the evidence may or may not be sufficient to discharge the onus cast upon objectors by s 24CK(2)(c).
138 The term "native title holder" is defined in s 224 of the NT Act as follows:
The expression native title holder, in relation to native title, means:
(a) if prescribed body corporate is registered on the national native title register as holding the native title rights and interests on trust - the prescribed body corporate; or
(b) in any other case - the person or persons who hold the native title.
139 However, the NT Act does not contain any definition of the expression "who hold or may hold native title". The words "who … may hold native title" are capable of a range of meanings. Is a mere possibility that persons may hold native title sufficient? Is an assertion that persons hold native title sufficient, by itself, to indicate that they are within the statutory expression? Does the expression connote those who have lodged a claim for the determination of native title but whose claim has not yet been determined or those who have authorised, under s 251B, the making of a claim under s 61 but which has not yet been lodged? Does it connote persons who are in neither of the latter two categories but in respect of whom there is a reasonable basis for thinking that they do hold native title? There may be other possible meanings.
140 The Delegate construed the expression "who … may hold native title" as involving an element of reasonableness. She referred to the statement of Reeves J in QGC Pty Ltd v Bygrave (No 3) [2011] FCA 1457; (2011) 199 FCR 94 (QGC No 3) that it must be reasonable to conclude that a person, group or community holds native title in the area and continued:
[124] Although the expression "persons who hold or may hold native title" is expansive and inclusive, I do not understand that s 203BE(5)(a) and the meaning of all reasonable efforts to require in every situation that any persons who claim to hold native title must then be identified as "persons who hold or may hold native title" for this purpose. I consider that in circumstances such as here where claims to hold native title have been subject to reasonable and detailed inquiries by the representative body and then those claims are found to be wanting in the opinion of the representative body, it would not be required to subsequently identify those persons as "persons who hold or may hold native title". In that regard, the objectors have not established that all reasonable efforts were not made by [the] NLC in the circumstances here.
(Emphasis added)
141 The parties referred to a number of decisions of this Court bearing on the construction of the term "who … may hold native title".
142 In Kemp v Native Title Registrar [2006] FCA 939; (2006) 153 FCR 38, Branson J considered whether a member of a competing group who was a respondent to proceedings for the determination of native title brought by another group should be regarded as a person who may hold native title within the meaning of s 24CG(3)(b)(i). Her Honour identified, at [49], two competing views as to the meaning of the words in that provision, namely:
(a) that the words should be construed literally so that, for example, where two competing groups each claims to hold the common or group rights which constitute the native title in the area, the words are capable of including the persons in both groups; or
(b) that the words should not be construed literally but should be understood to refer to all persons who, according to the traditional laws and customs of the registered native title claimants, hold the common or group rights which constitute the native title in the area.
143 Branson J said that the decision as to which of these competing views was preferable was difficult, but considered that she should apply "the literal meaning". Her Honour said at [58]:
I confess to having found this issue difficult to resolve. I accept that the construction for which the respondents contend would result in a logically coherent scheme for the registration of area agreements. However, a literal construction of s 24CG(3)(b)(i) does not, in my view, result in an absurd or otherwise plainly unlikely outcome. In the absence of a compelling case to do so, I am reluctant to depart from the literal meaning of the words which the [legislature] has chosen because a departure from that meaning could, in this and other cases, result in the loss of rights which an individual might otherwise enjoy.
144 Later, Branson J said that had Mr Kemp's claim been "merely colourable", it would have been open to the Registrar to conclude that it was without substance, so that his authority for the ILUA was not required. The applicants in this case submitted that the Delegate should have applied the Kemp approach, with the consequence that the only question for her was whether the claims of the Rak Mak Mak Marranunggu were "merely colourable". They called this "the merely colourable test".
145 It is not clear that Branson J intended that the two competing views which she had identified to be understood as exhausting the possible alternative constructions. As already indicated, it does seem that other constructions may be open. It may be that Branson J framed the two competing views as the alternatives having regard to the particular issue in dispute in Kemp. Although her Honour said that the literal construction was preferable, she did not articulate what that construction was, and gave only one example of the result it would produce. It is also to be noted that Branson J did not elaborate the sense in which she used the word "claims" in the example.
146 Two further matters may be noted. First, it is evident from Branson J's rejection of the second alternative that her Honour did not consider that those who "hold or may hold" native title are confined to registered native title claimants. Secondly, it is evident from her Honour's references to claims which are "merely colourable" and "without substance" that she contemplated that some assessment of the merit of a claim may be necessary. Again, I do not understand Branson J to have been stating the only circumstances in which a claim could be regarded as "without substance".
147 In Fesl v Delegate of the Native Title Registrar [2008] FCA 1469; (2008) 173 FCR 150, Logan J said, in the course of describing the statutory scheme for ILUAs:
[21] The statutory provision for the making of an area agreement in respect of an area even where there are no registered native title claimants or registered native title bodies corporate balances two of the main objects of the Native Title Act. Out of an abundance of caution and evidencing the recognition by the Parliament of the importance of native title, it liberalises membership of a "native title group" in those circumstances to the extent of permitting those who do nothing more than claim to hold native title in relation to an area to have an opportunity to be heard and to have an opportunity to participate in decision-making. …
(Emphasis added)
His Honour did not indicate the sense in which he used the word "claim" in this summary, although in context it may be that his Honour used the word in the sense of "assert".
148 QGC No 3 concerned an application for judicial review of a decision of a delegate of the Registrar refusing to register an ILUA because she was not satisfied that all persons who hold or may hold native title over the area in question had authorised the making of the agreement.
149 Reeves J distinguished the decision in Kemp on the facts and engaged in an extensive consideration of the scheme for the registration of ILUAs in Div 4 of the NT Act. His Honour concluded that the expression "who hold or may hold native title" incorporates notions of reasonableness:
[100] Finally, the words "hold or may hold" plainly cover a wide range of situations where a person could be said to hold native title in the area of land and waters concerned. They clearly extend to a formal native title determination under the Act and to a native title claim group with a registered application for the determination of native title under the Act. In my view they also extend to any other basis upon which it is reasonable to conclude that a person or group of persons may hold native title in the area concerned. So, apart from a registered claim, they would extend to an unregistered claim, or even an informal claim made, for example, by a person attending an authorisation meeting in response to a notice of that meeting and making a claim at that meeting to hold native title in the area. Moreover, apart from a formal or informal claim, they would also extend to any person or group of persons with a characteristic from which it is reasonable to conclude that a person or a group holds native title in any part of the area covered by the agreement. Such a characteristic may include membership of a particular Aboriginal family that was widely accepted by the local community to hold native title in the area, or being a long term resident of a particular area.
[101] Taking all these observations into account, I consider the expression "all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement" in s 24CG(3)(b)(i) is to be construed expansively and inclusively to mean every individual, group of persons, or community, of Aboriginal or Torres Strait Islander descent, who holds native title, or by any means makes a claim to hold native title, or otherwise has a characteristic from which it is reasonable to conclude that person, group, or community holds native title, in any part of the area covered by the agreement.
(Emphasis added)
150 As is apparent, Reeves J did not apply the "merely colourable test".
151 The NLC also referred to the decision of the Full Court in Murray v National Native Title Tribunal [2003] FCAFC 220; (2003) 132 FCR 402. At [23], the Full Court said:
Where an application for a Subdivision C agreement to be registered includes a statement to the effect required by s 24CG(3)(b), the Registrar must not register the agreement unless the conditions specified in s 24CL(2) and (3) are satisfied. Those conditions are calculated to ensure that all persons who hold, or may hold, native title in the area have been identified and notified of the agreement and have either authorised the making of the agreement or successfully taken steps to formalise their claim to hold native title in relation to land or waters in the area covered by the agreement.
(Emphasis added)
152 The NLC relied upon the emphasised words. It accepted that the remarks of the Full Court concerned s 24CL(2) and (3), namely, the registration of ILUAs which have not been certified by a representative body. The NLC submitted nevertheless that the remarks also applied to s 24CK, relying in this respect to the statement of Reeves J in QGC Pty Ltd v Bygrave (No 2) [2010] FCA 1019; (2010) 189 FCR 412 at [25] that the remarks identified more generally the purpose of the procedural provisions of Subdiv C of Pt 2 Div 3 of the NT Act. That may be so, in a general sense, but the words on which the NLC relied ("or successfully taken steps to formalise their claim") are directed specifically to provisions in s 24CL which do not have a counterpart in s 24CK. I do not regard the passage in Murray on which the NLC relied as being of material assistance presently.
153 The applicants submitted that the Delegate should have applied the approach of Branson J in Kemp and that, by failing to do so, she had failed to have regard to a relevant consideration. As I understood it, this was a submission that the Delegate should have applied a literal construction with the consequence that, even though the Rak Mak Mak Marranunggu have no formal proceedings on foot by which they seek to maintain a claim for native title over the Town of Batchelor, they are persons who may hold native title in relation to it because they assert that they do have native title, and that assertion should not be regarded as colourable.
154 In my opinion, this submission should not be accepted. Kemp should be regarded as a decision on its own facts. Like Reeves J, I consider that the term "who … may hold native title" incorporates a notion of reasonableness. The term should be understood as though it read "or who may, reasonably considered, hold native title". A person may be so regarded because they have some characteristic going beyond their own assertion, indicating that they may be a native title holder. I appreciate that this involves reading into the term words which the legislature did not use, but that does seem to be the statutory intention.
155 A number of matters indicate to my mind that a construction along these lines is appropriate.
156 Regard should be had first to the evident purpose of s 24CK and s 203BE(1) and (5). When details of an ILUA are entered on the Register, the agreement has effect, amongst other things, as if it were a contract among the parties to the agreement and as if 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 it in the same way as the registered native title body corporate, or the native title group, as the case may be (s 24EA(1)). Further, the process by which future acts may be validated, can then commence.
157 It is evident that in this context, s 203BE(5) is directed to ensuring that ILUAs are properly authorised under s 251A. It does so by requiring that all reasonable efforts be made to identify those who may participate in one or other of the authorisation processes contemplated by s 251A. The first of those alternatives is a process of decision-making under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title. To my mind, this suggests that those who may hold native title are a more confined group than those who make a mere assertion of native title.
158 Section 203BE(5) contemplates that the persons who hold or may hold native title in relation to the land in question will be finite and, further, may be identified by the making of all reasonable efforts. The notion that any persons making only an assertion of native title will be persons who "hold or may hold" native title does not seem consistent with this understanding. It is not readily to be supposed that the reasonable efforts contemplated by s 203BE(5) extend to ensuring that persons who may, possibly, choose to assert native title are identified, whether or not their assertions lack substance. Nor does it seem reasonable to suppose that the NT Act intends that persons making assertions of native title without a reasonable basis should nevertheless be involved in the authorisation of the making of an ILUA.
159 The scheme for the making and registration of ILUAs contained in Subdiv C of Pt 2, Div 3 of the NT Act contemplates "claimants" of the three kinds:
(a) "registered native title claimants" (s 24CD(2));
(c) a "person who claims to hold native title" (s 24CD(2), (3) and (4), s 24CI)(1)); and
(d) "persons who hold or may hold native title" (ss 24CG(3), 203BE, 251A).
160 Counsel for the Batchelor No 1 Respondents submitted that these should be ranked in descending order of statutory status as (a), (c) and (b). It is unnecessary in my view to consider the merit of that particular submission. What is pertinent for present purposes is that Div 3 of Pt 2 of the NT Act uses the different terminology. All of these provisions were introduced into the NT Act by the Native Title Amendment Act 1998 (Cth). These circumstances are strongly suggestive of a legislative intention that each expression have a different meaning, even if there be some overlap between them. Of course, it is one thing to identify that different meanings are intended: it is another to identify those meanings.
161 The term "registered native title claimant" is defined in s 253 of the NT Act.
registered native title claimant, in relation to land or waters, means a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.
162 Neither of the other two terms is defined but it can be inferred that they encompass a wider class of persons than does the term "registered native title claimant".
163 Before addressing these meanings, I note that s 253 also contains a definition of "claimant application":
claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.
As can be seen, this term applies to any native title application that a native title claim group has authorised to be made. It encompasses applications both before and after registration and filing in this Court. The definition of the term in this form was also introduced by the 1998 amendment. An obvious cognate of the defined term would have been "claimant applicant" but the NT Act does not use that term.
164 The term "holds or may hold native title" is found in provisions whose purpose is directed to ensuring that native title holders, including those whose native title has not yet been formally recognised, and who may be affected by the making of an ILUA, have been identified and have authorised its making in the manner contemplated by s 251A. It seems pertinent that despite this being the purpose of those provisions, they do not use the term "who claim to hold native title".
165 It may also be pertinent that the provisions in the NT Act using the term "person who claims to hold native title" (which, in addition to those mentioned, include ss 24DE(4), 60AB(4)(e) and 87A(1)(c)(ii)) do not use a term such as "claimant applicant" or some other cognate of the term "claimant application". That suggests that the term "person who claims to hold native title" encompasses a broader class of persons than members of a claim group which had authorised a native title determination application to be made. The very fact that the term uses the word "person" in the singular is another indication of this.
166 A natural meaning of the word "claim" in the expression "persons who claim to hold native title" is something like "assert". That understanding of its meaning seems to fit aptly in the provisions of the NT Act in which it is used. If that be correct, it is probable that the term "those who hold or may hold native title" is directed to a narrower category of people. It also suggests that it would be inappropriate to regard the term "who may hold native title" as synonymous with "those who assert that they hold native title".
167 The terminology used in s 24CI is another indication that those who "may hold" native title are a narrower class of persons than those who claim native title. It extends the right of objection to the registration of an ILUA to any person "claiming to hold native title" but, confines that person's ground of objection to a complaint that the requirements of s 203BE(5)(a) or (b) were not satisfied. That is, persons who claim to hold native title may object to the registration only on the basis that all reasonable efforts were not made to ensure that those who hold or may hold native title were identified or that not all the identified persons had authorised the making of the ILUA. That suggests that, while the mere assertion of native title may be sufficient for a person to be characterised as a person claiming native title, something more is required before a person can be regarded as one who "may hold" native title.
168 This scheme of provisions suggests that a person may be a person who claims to hold native title without being a person who may hold native title. Conversely, a person "may hold" native title even though they have not yet claimed it, formally or informally.
169 In my opinion, all these matters point against the word "may" in the term "who … may hold native title" being used in the sense of mere possibility, so as to encompass persons for whom there is a theoretic possibility that they may hold native title. Instead, it seems more natural to understand the term as referring to persons who, although not yet recognised, should be regarded as potential native title holders. An element of objectivity is involved. The person should be regarded as one who may hold native title because of some known characteristic concerning them. Mere assertion will be insufficient.
170 Thus, I consider the expression "who hold or may hold native title" should be construed as though it read "who hold or, reasonably considered, may hold native title". It follows that I agree with the opinion of Reeves J in QGC No 3 that the term "may hold" encompasses those in respect of whom there is a reasonable basis for concluding that they may hold native title in the area. There was no error by the Delegate in adopting that approach.
171 I now turn to address the particular relevant considerations said by the applicants not to have been taken into account by the Delegate.