Bullen v State of Western Australia

IS THE QUESTION HYPOTHETICAL? 23 The respondents contended that the declaration sought by the applicants related to a matter which was entirely hypothetical. It was said that even if there was a registered native title claimant in existence immediately before the grant of the two mining leases, the validity of the mining leases could only be determined if it was established that there was native title in the area the subject of the leases. This, said the respondents, had not yet been established and, therefore, making the declaration would have no practical utility. This is because it would leave unanswered the more significant issue, namely, whether there was any native title in the area at all. 24 The respondents relied particularly upon the case of Edwards v Santos Ltd (2009) 263 ALR 473 (Edwards). 25 In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (Ainsworth), Mason CJ, Dawson, Toohey and Gaudron JJ observed at 581-582 in relation to the power to grant declaratory relief: [I]t is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that (have) not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties". (Footnote omitted.) 26 In my view, there is a real controversy as to whether there was, immediately before the grant of the mining leases, a registered native title claimant in respect of the relevant land. The respondents say there was not, the applicants say there was. Deciding the question would quell that controversy. The applicants have a real interest in having the question determined, because the mining leases are in relation to land which is the subject of the native title determination application they are bringing in their capacity as the applicant under the Native Title Act. 27 Further, quelling of the controversy will have very significant practical consequences. If the respondents are right, the validity of the mining leases cannot be impugned on the basis that the applicant in the Esperance Nyungar native title determination subsequently proves native title rights of a character which affect the rights conferred on the holder of the mining leases. If, on the other hand, the respondents are wrong, then the respondents run the risk of the validity of the mining leases being impugned to the extent that the applicant in the Esperance Nyungar native title determination application subsequently proves that native title of a character which affects the rights conferred on the holder of the mining leases. The difference between the two risk profiles would be likely to be reflected in substantially different valuations of the mining leases. This has obvious commercial consequences for the third respondent. Further, the resolution of the question would enable the third respondent, if necessary, to reassess its position in order to take measures to mitigate against the risk of native title ultimately being established. 28 In addition, in this case, the Court is being asked to grant a declaration in relation to an established factual scenario in relation to past conduct. This case is distinguishable from the Edwards case where the mining tenement had not yet been granted nor was there any imminent threat that the mining tenement was about to be granted. 29 Accordingly, I reject the contention of the respondents that the question is hypothetical.

WAS THERE A REGISTERED NATIVE TITLE CLAIMANT? 30 The controversy between the parties to this proceeding gives rise to a question of the construction of the Native Title Act. It is common cause that as from the death of Mr Dimer on 6 September 2005 both persons whose names appeared as the applicant on the Register of Native Title Claims were deceased. It was also common cause, therefore, that immediately before the grant of the two mining leases in question on 27 June 2007, both of the persons whose names were registered as the applicant on the Register of Native Title Claims were deceased. 31 The State contended, as it had in the correspondence referred to above, that immediately before the grant of the mining leases, there was no native title party in relation to any of the lands that would be affected by the grant of the mining leases. Accordingly, contended the State, the circumstances referred to in s 28(1)(b) of the Native Title Act applied in relation to the grant of the mining leases. 32 The relevant provisions of s 28 provide as follows: (1) Subject to this Act, an act to which this Subdivision applies is invalid to the extent that it affects native title unless, before it is done, the requirements of one of the following paragraphs are satisfied: (a) by the end of the period of 4 months after the notification day for the act (see subsection 29(4)), there is no native title party in relation to any of the land or waters that will be affected by the act; (b) after the end of that period, but immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act. 33 The State went on to contend that, at the relevant time, there was no native title party, within the meaning of s 28(1)(b) of the Native Title Act, in relation to the land that would be affected by the grant of the mining leases, because at that time there were no living persons comprising the applicant in respect of the Esperance Nyungar native title claim. Further, said the State, the mining leases were granted more than four months after the notification day of 5 September 2003. 34 The applicants contended that the question of whether there was a native title party in respect of the relevant land on 26 June 2007, being the day immediately before the grant of the mining leases, turned on whether there was, on that day, any "registered native title claimant" in respect of that land. The applicants referred specifically to the definition of "native title party" in s 29(2) and also s 30 of the Native Title Act. 35 Section 29(2)(a) and s 29(2)(b) describe the persons who must be notified of a future act by the government party, and provide as follows: Persons to be given notice (2) The Government party must give notice to: (a) any registered native title body corporate (a native title party) in relation to any of the land or waters that will be affected by the act; and (b) unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act: (i) any registered native title claimant (also a native title party); and (ii) any representative Aboriginal/Torres Strait Islander body; in relation to any land or waters that will be affected by the act; and (c) if the doing of the act has been requested or applied for by a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied) - that person (a grantee party); and (d) the registrar or other proper officer of the arbitral body in relation to the act. (Original emphasis.) 36 Section 30 of the Native Title Act provides as follows: (1) Each of the following is also a native title party: (a) any person who, 4 months after the notification day (see subsection 29(4)), is a registered native title claimant in relation to any of the land or waters that will be affected by the act, so long as: (i) the application containing the claim was filed in the Federal Court, or given to the recognised State/Territory body, before the end of 3 months after the notification day; and (ii) the claim related to any of the land or waters that will be affected by the act; (b) any body corporate that, 3 months after the notification day, is a registered native title body corporate in relation to any of the land or waters that will be affected by the act; (c) any body corporate that becomes a registered native title body corporate in relation to any of the land or waters that will be affected by the act: (i) after the end of that period of 3 months; and (ii) as a result of a claim whose details were entered on the Register of Native Title Claims before the end of that period of 3 months. Ceasing to be a native title party (2) A person ceases to be a native title party if the person ceases to be a registered native title claimant. Registered native title rights and interests (3) For the purposes of this Subdivision, the registered native title rights and interests of a native title party are: (a) if the native title party is such because an entry has been made on the National Native Title Register-the native title rights and interests described in that entry; or (b) if the native title party is such because an entry has been made on the Register of Native Title Claims-the native title rights and interests described in that entry. Replacing a native title party (4) If: (a) a person becomes a registered native title claimant because the person replaces another person as the applicant in relation to a claimant application; and (b) the other person is a native title party; the first-mentioned person also replaces the other person as the native title party. (Original emphasis.) 37 Section 253 of the Native Title Act defines a "registered native title claimant" as follows: 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. (Original emphasis.) 38 The applicants went on to contend that, notwithstanding that Mr Bullen and Mr Dimer had both died by 26 June 2007, on that date their names appeared on the Register of Native Title Claims as the applicant in relation to the Esperance Nyungar native title claim. It followed, said the applicants, that according to the "plain terms of the definition" there was, on 26 June 2007, a registered native title claimant, comprising Mr Bullen and Mr Dimer, and, therefore, a native title party in respect of the relevant land. The applicants also contended that the Native Title Act should be construed beneficially in a manner guided by the content of the Preamble to the Native Title Act, and that the objects of the Native Title Act would be frustrated if the State's approach was correct. This was because the native title claim group would be deprived of one of the main benefits derived from the Native Title Act, namely, the right to negotiate. Accordingly, said the applicants, the declaration sought should be made. 39 The State contended that the applicants' submissions were entirely inconsistent with the reality of the right to negotiate process provided for in Subdiv P of Div 3 of Pt 2 of the Native Title Act (Subdiv P). In its written submissions, the State put it thus: If there is no living applicant with whom to negotiate, the process is completely stymied. 40 The State said that following the death of Mr Dimer on 6 September 2005, the government party and the grantee party had no native title party with whom to negotiate pursuant to s 31 of the Native Title Act in relation to the proposed grant of the two mining leases. 41 The State contended further that if the applicants' contention was correct, the government party would be required to "go behind the Register" to find living native title claimants with whom to negotiate. However, said the State, such a concept was inimical to the fundamental premise of the Native Title Act which empowers the applicant and no one else, to act on behalf of the native title claim group. The State referred specifically to s 61(2)(c) and s 61(2)(d). 42 As to the applicants' contention that the objects of the Native Title Act would be frustrated, the State said that that submission had to be considered in context. The State said that the native title claim group and the representative body must act conscientiously to ensure that the necessary person or persons are authorised to act on behalf of the claim group in relation to future acts and other matters arising under the Native Title Act. In this particular case, the State said that the native title claim group had more than 21 months following Mr Dimer's death to replace the applicant prior to the grant of the mining leases on 27 June 2007. The State also referred to the observations made by the Tribunal referred to at [11] above and went on to observe that the application to replace the applicant was not brought until 23 October 2008 - some three years after the death of Mr Dimer. 43 The third respondent made submissions to like effect. The third respondent also made some additional submissions which I will deal with later in these reasons.

CONSTRUCTION OF "REGISTERED NATIVE TITLE CLAIMANT" 44 I have had some difficulty in determining the proper construction of "registered native title claimant" and, therefore, "native title party" for the purposes of s 29 of the Native Title Act. The difficulty has arisen in relation to trying to reconcile the competing considerations of, on the one hand, the importance of the right to negotiate to a native title claim group as a benefit under the Native Title Act; and, on the other hand, the public interest in having applications for mining tenements dealt with within a reasonable time. 45 The importance of the right to negotiate is manifest by the following reference in the Preamble to the Native Title Act: It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done. 46 On the other hand, the importance of the expeditious processing of applications for mining titles was a motivation for the amendments made to the right to negotiate provisions in 1997. Subdivision P of the Native Title Act replaced the existing Subdiv B of Div 3 of Pt 2 of the Native Title Act. However, Subdiv P re-enacted many of the provisions in the pre‑existing Subdiv B and also introduced a number of amendments. The Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth), para 18.11, states: The purpose of the amendments to the right to negotiate provisions is to streamline the right to negotiate processes so that unnecessary delays are eliminated while maintaining the protection of the legitimate interests of the native title holders and claimants. 47 I have, however, come to the view that on 26 June 2007, immediately before the grant of the two mining leases, there was in existence a native title party within the meaning of s 28(2)(b) of the Native Title Act in relation to the land the subject of the mining leases granted by the State on 27 June 2007. This is because there was in existence on that date a "registered native title claimant" in relation to the relevant land, for the purposes of that section of the Native Title Act. 48 I have come to this conclusion for the following reasons.

Consistency with fundamental concepts 49 First, the contentions of the applicants are consistent with the fundamental concepts which underlie the Native Title Act. 50 These concepts prescribe, relevantly, that the vindication of native title rights is to occur by means of a representative proceeding brought on behalf of a native title claim group by a person or persons from that claim group, authorised by that claim group, and referred to as "the applicant"; and that the details of that claim are to be registered on a register of claims maintained by the Tribunal. 51 Section 185 of the Native Title Act provides for the establishment by the Native Title Registrar of a register of native title claims. Section 190(1) provides that the Native Title Registrar is to register native title claims that have been accepted for registration. Section 186(1) prescribes the information which must be included on the register of native title claims. Among that prescribed information is: "the name and address for service of the applicant" (s 186(1)(d)). 52 The applicant, for the purposes of the Native Title Act, is the person or persons who is, or are, authorised to bring the native title determination application on behalf of a native title claim group. Only an authorised applicant can act on behalf of the native title claim group. Section 61(2) and s 62A provide that only the applicant has the power to do things necessary to prosecute the native title claim. Section 251 of the Native Title Act provides for the process to be undertaken by the native title claim group in order to authorise a person or persons to act as the applicant in respect of a native title claim on behalf of the claim group. 53 Significantly, s 66B of the Native Title Act contemplates that a person, or persons jointly, comprising the applicant, may fail to meet a condition permitting that person or persons to continue to act as the applicant in respect of the native title claim group's native title application, and may, accordingly, be replaced as the applicant. 54 Section 66B provides as follows: Application to replace applicant in claimant application (1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that: (a) one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant: (i) the person consents to his or her replacement or removal; (ii) the person has died or become incapacitated; (iii) the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; (iv) the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it, and (b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it. Court order (2) The Court may make the order if it is satisfied that the grounds are established. Registrar of Federal Court to notify Native Title Registrar (3) If the Court makes the order, the Registrar of the Federal Court must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant. Register to be updated (4) If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order. (Original emphasis.) 55 Section 66B contemplates the replacement of the "current applicant" in a number of circumstances, including, significantly, in the circumstance where the person or persons, comprising the applicant, has, or have, died. It is apparent from the language and structure of s 66B, that the Native Title Act contemplates that even where the person or persons comprising the current applicant has, or have, died, the current applicant, as comprised by the deceased person or persons, remains the registered applicant, albeit in an inchoate form, until replaced on the register by the "new applicant". This follows from the fact that s 66B(1) uses the term "the current applicant", and not "the former applicant", to describe the status of the applicant, even where the person or persons comprising the applicant has or have died. Further, the Native Title Act contemplates that the name of the deceased person or persons comprising the applicant is, or are, to remain registered as the current applicant until such time as a Court order is made under s 66B(2) and, consequent thereon, the register is amended to reflect the names of the person or persons comprising "the new applicant" and the address for service of the new applicant (s 66B(3) and s 66B(4)). 56 Accordingly, until amended, pursuant to s 66B(4), the Register of Native Title Claims will continue to show the names of the person or persons comprising the current applicant, as the applicant, notwithstanding that those persons may be incapable of carrying out the statutory functions of the applicant prescribed under the Native Title Act. The statutory functions of the applicant would include the conduct of the negotiations called for under s 31 of the Native Title Act. 57 The third respondent relied upon certain observations made by French J (as his Honour then was) in Bullen v Western Australia (1999) 96 FCR 473, as providing support for its contention that "registered native title claimant" was to be construed as referring to a living person. The observations of French J relied upon, appear at 478, at [13]-[14] and are as follows: Inclusion or non-inclusion of details of a claim in the Register of Native Title Claims does not impact upon the standing of the application as a proceeding in the Federal Court. Registration is nevertheless a condition of an applicant for a native title determination to be a native title party under s 30 of the Act and is therefore a condition of the enjoyment by that applicant of the right to negotiate under Pt 2, Div 3, subdiv P of the Act. 58 In my view, the observations of French J are equally consistent with the views that I have expressed above. 59 The third respondent also submitted that the construction contended for by the applicants would have the consequence that on the death of the person or persons comprising the applicant, their personal representatives or executors would then succeed them as the persons comprising the applicant. That concept, said the third respondent, was inimical to the operation of the Native Title Act. 60 In my view, the Native Title Act does not contemplate that the personal representative or executor of a deceased person comprising the applicant would, by operation of law, succeed the deceased person in that capacity. The Native Title Act does not contemplate the replacement of the applicant occurring in any manner, other than by the manner referred to in s 66B of the Native Title Act. That section provides specifically for the circumstance of having to replace the applicant where a person or persons comprising the applicant has, or have, died. It provides for the replacement of the deceased person or persons, with a person or persons, who is, or are, authorised by the native title claim group to act as the applicant, in the specified manner prescribed by the statute. It also provides for the obtaining of an order under s 66B(2), as an essential precondition to effecting the replacement on the register of the current applicant.

Right to negotiate not rendered unworkable 61 Secondly, the construction of the Native Title Act contended for by the applicants, does not render the right to negotiate provisions unworkable as submitted by the respondents. This is because there are provisions in Subdiv P which permit the government and grantee parties to obtain relief in circumstances where the native title claim group delays unduly in appointing a replacement applicant with a capacity to carry out the negotiations called for by s 31 of the Native Title Act. 62 Subdivision P contemplates that during the negotiation process the applicant may be replaced. This is to be found in s 30(4) of the Native Title Act. 63 Further, Subdiv P has a mechanism which appears to be sufficiently flexible to deal with any undue delay which may occur in relation to the replacement of the applicant, in circumstances where the applicant is comprised of a person or persons who is, or are, incapable of satisfying the duty under s 31(1)(b), namely, to negotiate in good faith with the view to obtaining an agreement in relation to the doing of the future act. This incapacity may arise by reason of the death of the person or persons comprising the applicant. However, it may also arise in circumstances where there is a mental incapacity in the person or persons comprising the applicant. This mechanism is comprised by the right of a government or grantee party to apply to an arbitral body under s 35 of the Native Title Act for a determination that the future act may be done. 64 Section 35 of the Native Title Act provides that any negotiating party may apply to an arbitral body for determination under s 38 in relation to the Native Title Act if at least six months has passed since the notification day and no agreement, as contemplated by s 31(1)(b), has been made in relation to the Native Title Act. No such agreement could be made unless the applicant in relation to a native title claim in question had the capacity to agree to an agreement. This, in turn, could not happen in circumstances where the registered applicant was comprised of a person or persons, who was, or were, deceased. On an application under s 35, the arbitral body has the power under s 38 to make a determination that the act may be done. 65 Further, s 36A of the Native Title Act permits direct Ministerial intervention in circumstances where there is a delay by the arbitral body in making a determination in respect of an application which has been made under s 35 of the Native Title Act.

Undesirable consequence of respondents' construction 66 Thirdly, if the construction contended for by the respondents was correct, it would permit the future act to be done, in circumstances where it is unlikely that Parliament would have intended that the future act be done. 67 One such circumstance might be the following. The applicant of a native title claim is comprised of two persons. The applicant, comprised by those two persons, has been registered as such, for much longer than four months from the notification day. Negotiations under s 31 have been ongoing for a considerable period of time. Both the persons comprising the applicant are travelling in the same vehicle to a meeting to continue the negotiations. They are both killed when the vehicle is involved in a traffic accident. In my view, Parliament could not have contemplated that, in those circumstances, the future act could, without more, be done, with the consequence that the native title claim group in respect of the relevant land would be deprived of the right to negotiate. 68 For the foregoing reasons, the declaration sought by the applicants is made. I certify that the preceding sixty‑eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.