Did the Court lack power under the NTA to make the order dated 13 May 2015?
61 That the NTA is legislation of an historic nature that was intended to provide, as its Preamble states, a "special procedure" for the just and proper ascertainment of native title rights and interests, is well understood.
62 The Preamble relevantly adds that it is important that appropriate bodies be recognised and funded to represent Aboriginal peoples and Torres Strait Islanders and to assist them to pursue their claims to native title or compensation. It does this by providing for NTRBs.
63 The objects of the NTA, stated in s 3, include the main object in para (c), "to establish a mechanism for determining claims to native title".
64 Division 1 of Pt 3 of the NTA makes provision for applications to the Federal Court in relation to native title and compensation. Section 61 deals with native title and compensation applications. Part 4 deals with determinations of the Federal Court. Section 81 confers exclusive jurisdiction on the Federal Court to deal with applications filed in the Court that relate to native title.
65 Prior to amendments made to the NTA by the Native Title Amendment Act 1998 (Cth) (1998 Amendment Act), there was no requirement for a native title determination application to be authorised by any prescribed statutory process, such as s 251B; nor was there any express reference to the "applicant".
66 Prior to those amendments, by s 61(1) and the Table that then governed the making of a native title determination application, "Persons who may make application" were described as a person or persons "claiming to hold the native title either alone or with others".
67 A native title determination application, such as the claimant application filed here, is now to be made, as para (1) of the Table in s 61 states, by:
A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.
68 Section 251B of the NTA states what it means for a person or persons to be authorised by all the persons in the native title claim group, as follows:
For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:
(a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or
(b) where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.
69 Both by para (1) of the s 61 Table and s 61(2)(c), the person who made the application or the persons jointly, is the "applicant".
70 Section 61(2)(d) expressly provides that none of the other members of the native title claim group is the applicant.
71 Section 253 of the NTA complements these provisions and provides that "applicant" has a "meaning affected by subsection 61(2)". The main import of this definition, and the use of the expression "affected by", suggests that it is not open to argue, as perhaps it had been prior to the 1998 Amendment Act, that the claim group was the "applicant" for the purposes of the NTA, or for the Federal Court of Australia Act 1976 (Cth) (FCA Act) or Rules made thereunder.
72 It is in this context that one comes to s 62A of the NTA, which relevantly deals with the power of the applicant in the following terms:
In the case of:
(a) a claimant application; or
(b) …
the applicant may deal with all matters arising under this Act in relation to the application.
Note: This section deals only with claimant applications and compensation applications. For provisions dealing with indigenous land use agreements, see Subdivisions B to E of Division 3 of Part 2.
73 It may be said, therefore, to be beyond debate that the "applicant" as defined, for the purposes of the NTA, is quite separate from the claim group (even though the persons authorised to be an applicant must also be members of the claim group).
74 The reasons for having a designated "applicant" for a claimant application seem clear. Without such a designated applicant, dealings between those who brought a claim and third parties, including a legal representative, might prove difficult or be productive of accountability concerns.
75 Prior to the 1998 Amendment Act, s 31 created a right to negotiate, requiring the "Government party" to negotiate in good faith with the "native title parties". By s 253 of the Act as originally enacted, "native title party" had the meaning given by s 29(2)(a) and (b) and s 30. Thus, in relation to a native title determination application, any "registered native title claimant" was a "native title party". In turn, the expression "registered native title claimant" under s 253, meant a person whose name appeared on the Register of Native Title Claims "as the person who is taken to be the claimant in relation to the land or waters". Under s 66(1) as originally enacted, once accepted under s 63, the Registrar of Native Title Claims was, amongst other things, required to record details of an application in the Register of Native Title Claims. In short, the person or persons who claimed to hold the native title, either alone or with others, was taken to be the "claimant" who, under s 31, enjoyed the right to negotiate.
76 The 1998 Amendment Act, by the introduction of a formal "applicant", who was "authorised" under s 251B of the NTA, was calculated to make clear precisely who the applicant was both for the benefit of the claim group and for third parties. It was also calculated to guard against the possible abuse of the right to negotiate procedure by registered claimants in those cases where the claim was made on the basis the claimants held native title with others, but who were not specifically authorised by the others and failed to account to them for their actions. Section 31, after the 1998 Amendment Act, empowered the applicant, as the "registered native title claimant", and so "native title party", to be a "negotiation party": see ss 29(2)(b)(i), 30A, 31, 253.
77 Section 62A, in this regard, is intended to lay out the metes and bounds of the power of an applicant. It is not an unlimited power, however. It enables the applicant to "deal with all matters arising under this Act in relation to the application". The relevant circumscribing expressions are "matters", "arising under this Act" and "in relation to the application". As the note to s 62A states, the section deals only with claimant applications or compensation applications. This helps to give meaning to the expression "in relation to the application". Thus, an applicant is not authorised to make an Indigenous Land Use Agreement (ILUA), to which subdivs B to E of Div 3 of Pt 2 of the NTA apply. The result is that an ILUA needs to be approved under those other provisions of the NTA by the claim group, not simply by an applicant, although it is often considered that an applicant may well be able to negotiate the terms of an ILUA subject to its approval by the claim group. By contrast, an agreement made under s 31 may be made by the applicant alone. See generally Justice Darryl Rangiah and Justin Carter, "The Role of the 'Applicant' in Native Title Disputes" (2013) 87 ALJ 761.
78 The Explanatory Memorandum to the Native Title Amendment Bill 1998 (Cth), at [25.41], says very little about the nature or extent of the power of an applicant, save largely to repeat the terms of s 62A. It does, however, state that an example of a matter that an applicant could deal with, "would be attending a mediation conference convened under section 86B". It also adds:
This ensures that all those who deal with the applicant in relation to matters arising under the NTA can be assured that the applicant is authorised to do so.
79 As a result, there can be little doubt that the power of the applicant includes the power to instruct lawyers to act on behalf of the applicant in making and maintaining a claimant application.
80 However, in my opinion, the terms of s 62A of the NTA do not mean that, in authorising the person or persons to be the applicant, under s 251B, the claim group may not limit the authority of the applicant effectively to act on its behalf, if it so wishes.
81 The primary requirement under s 251B(a) or (b), is that the claim group "authorise a person or persons to make a native title determination application … and to deal with matters arising in relation to it". There is, in my view, no reason why the power to authorise should not include the power to authorise conditionally.
82 For it to be suggested that the claim group has only two choices, to authorise an applicant without limitation on authority or to not authorise the applicant at all, would be to subvert the otherwise clear understanding to be drawn from the terms of ss 61, 62, the Form 1 application, and also, as discussed below, the terms of s 66B, which enables an applicant to be replaced by the authority of the claim group, that an applicant's authority to act and to continue to act is subject to the claim group's ultimate control.
83 In this regard, s 66B of the NTA deals expressly with the question of replacing an applicant and by subs (1) and (2), provides the following process:
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.
Note: Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.
Court order
(2) The Court may make the order if it is satisfied that the grounds are established.
(Emphasis added.)
84 It may be seen that, by para (1)(a)(iii), an applicant may be replaced on the basis that the relevant person or persons are no longer authorised by the claim group to make the claimant application and to deal with matters arising in relation to it. It follows, under that ground, that the claim group may, for whatever reason motivates it, remove the current authorisation of an applicant and invest another applicant with the relevant authority to make the application and deal with matters arising in relation to it.
85 Further, by para (1)(a)(iv), the applicant may be replaced on the basis that the relevant person or persons 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".
86 It will be appreciated that, while any member or members of the claim group may make the application to replace an applicant, by virtue of s 66B(1)(b), the Federal Court may not make the replacing order unless that member or those members seeking the order are authorised by the claim group "to make the application and to deal with matters arising in relation to it" - the "application" in question, in a case such as the present, being the primary claimant application.
87 Thus, s 66B is premised on an understanding that individual members of a claim group cannot successfully agitate for the replacement of an applicant without the ultimate authority of the claim group itself.
88 For present purposes, the significance of s 66B(1)(a)(iv) is that it recognises the power of the claim group, when initially authorising the applicant, to limit the authority given to the applicant to make a claimant application and to deal with matters arising in relation to it.
89 On the face of it, by resolution 10, the claim group placed limits on the authority of the applicant in relation to the engagement of lawyers to run the claim. That resolution, and resolution 10(e) in particular, did not, and did not purport to, comprise a term of the contract of retainer made by the applicant with NTSCORP/Mr Powrie.
90 On the face of it, the limitation in resolution 10(e), while expressed in terms of "expectation", made it clear to the applicant that it had a limited authority on the question of a change of lawyer, which, if not met, would mean it had exceeded the authority given to it by the claim group and was liable to be replaced as applicant under s 66B - should the claim group (according to the relevant voting procedure prescribed by s 251B) take a dim view of its conduct.
91 I consider, therefore, and with respect, that the primary judge was correct to accept, in the course of argument with counsel on both 10 March 2015 and 13 May 2015, that it would be open to the claim group, under s 66B, to authorise the replacement of the applicant for exceeding the authority that the claim group had given to the applicant, having regard to the materials then before the Court.
92 Similarly, the remarks made by the primary judge to the effect that the resolution of any dispute as to who should be the solicitor on the record for the applicant could be resolved by the claim group by the s 66B mechanism, were also correct. Indeed, to be "66B'd" is a well understood concept amongst applicants and communities who are involved in claimant applications.
93 The only question on this appeal is whether, in the circumstances as they prevailed on 10 March 2015 and 13 May 2015, once the primary judge had formed the view that the contract of retainer between the applicant and NTSCORP/Mr Powrie was not subject to a "condition" concerning approval of the claim group to a change of solicitor, and dismissed NTSCORP's interlocutory application, there was any jurisdiction in the Court to make the orders facilitating the calling and conduct of a meeting of the claim group by NTSCORP for s 66B purposes.
94 NTSCORP submits that, having regard to the Court's jurisdiction under s 81 of the NTA to hear and determine native title applications generally, and its power under s 23 of the FCA Act to make such orders as it thinks appropriate in relation to matters in which it has jurisdiction, and also the power it has under R 1.32 of the Rules to make any orders it considers "appropriate in the interests of justice", it was empowered to make the orders that the primary judge made on 13 May 2015. The Court's case management powers and s 37M of the FCA Act are also referred to by NTSCORP.
95 It contends that the orders made by the primary judge do not purport to usurp the statutory functions conferred on an applicant under s 62A and merely require that NTSCORP convene a meeting to consider resolution 10(e). It submits that, in circumstances where the primary judge expressed "very real concerns" as to whether the claim group wanted their representative to change solicitors, it was appropriate for the primary judge to make those orders, and that s 62A cannot be read as expressly or impliedly ousting the power of the Court under s 23 or in the exercise of an implied incidental power, or more generally, to regulate the proceeding. Section 23, it is submitted, in particular, was enlivened.
96 The appellant, however, submits that the NTSCORP submissions do not correctly characterise the statements made by the primary judge, and that there was, and is, no evidence of the claim group expressing any concern about the change of the legal representative before her Honour.
97 When it comes to the exercise of the Court's power under s 23, that power, as has been often recognised, enables the Court to make orders that serve the effectual exercise of its jurisdiction, including to prevent any abuse or frustration or interference with its processes: Patrick Stevedores Operations No 2 Proprietary Limited and Others v Maritime Union of Australia and Others (1998) 195 CLR 1 at [35]; [1998] HCA 30; Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at 243-244; [2001] HCA 63; AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 4) [2006] FCA 1050 at [7]. This may be referred to as an implied jurisdiction, or power.
98 The question here is not whether the Court has the jurisdiction to make orders, in an appropriate case, of the kind now under challenge, but whether its jurisdiction or power to do so was enlivened in this case.
99 The primary judge, in that regard, appears initially, on 10 March 2015, to have considered orders to facilitate the holding of a claim group meeting were appropriate because of the statements made in the letter from Sam Hegney, Solicitors to NTSCORP dated 30 January 2015, referring to proper practice and advising NTSCORP/Mr Powrie not to contact "any of the applicants", and withholding permission in that regard to do so. As noted, at [48] above, her Honour expressly said that she would be willing to put in place some arrangements "so that the fact that Mr Hegney doesn't consent to a solicitor contacting what he calls 'his clients' somehow be got round so that there can be a meeting of the native title claim group". Her Honour considered that there may be a "practical issue", which may reasonably be interpreted to mean that there was a risk that the 16 of the 18 persons within the applicant who had approved Mr Hegney acting for the applicant, or Mr Hegney, might seek to prevent a meeting occurring.
100 In my view, it is on the strength of that letter, when taken with the terms of resolution 10(e), that her Honour considered the Court's jurisdiction or power to make the challenged orders was enlivened.
101 The orders made on 13 May 2015, did not merely facilitate, but required the holding of a claim group meeting organised by NTSCORP, by reference to its functions as a NTRB. In my view, the Court's jurisdiction to make the orders was not enlivened in the circumstances as they then existed.
102 The difficulty with comprehending that the Court had jurisdiction to make such orders in the circumstances as they then existed, is that, as the primary judge said, there was nothing before the Court to indicate what the current views of the members of the claim group were, so far as the question of the applicant's conduct in apparent excess of authority was concerned. There was no basis to doubt the power of the applicant, under s 62A, to change lawyers. And there was no basis to think that the claim group would wish to cavil with the applicant's decision. Only NTSCORP were complaining, and its complaint was on the basis of breach of the lawyer's retainer - a false argument.
103 There was no evidence before the Court to suggest that there was currently any issue between the claim group as a whole, or even certain members of it, about the appropriateness of the decision of the applicant to change lawyers.
104 The most that could be said was that, in light of resolution 10(e), there might possibly be an issue and that the advice given in the letter of Sam Hegney, Solicitors to NTSCORP not to contact "the applicants", pointed to a potential demarcation dispute. However, all that this evidentiary material added up to, in my judgement, was that there had been a change of lawyer at the election of the applicant and that NTSCORP/Mr Powrie was concerned at that development. The expression of any other concern was entirely speculative.
105 There were no circumstances, in my view, that then gave the Court jurisdiction to make orders designed to prevent any abuse, even any potential abuse, of the processes of the Court, because the question of abuse was entirely speculative. There was no proper foundation for considering that the integrity of the process by which the claim group might act under s 66B was compromised. The lawyer's letter was just a lawyer's letter pointing out the obvious.
106 I do not doubt that, depending on circumstances, the Court may well be apprised of a jurisdiction and power to make orders that bear upon the question of appointment of solicitors and the calling or conduct of a claim group meeting for the purposes of s 66B of the NTA. In this case, however, I do not consider that, in the circumstances as they prevailed at material times, there were any circumstances that enlivened the Court's jurisdiction to make relevant orders under s 23 of the FCA Act or, for that matter, by reference to any "inherent jurisdiction" to make case management orders (State of New South Wales v Public Transport Ticketing Corporation (No 3) (2011) 81 NSWLR 394 at [13]-[16] (Allsop P); [2011] NSWCA 200), or by reference to s 37M of the FCA Act or R 1.32.
107 NTSCORP further submits that, in exercising the jurisdiction conferred by s 81 of the NTA to hear and determine applications filed in the Court that relate to native title, the Court has the power to order a NTRB, and so NTSCORP, to carry out statutory functions conferred under s 203BC and s 203BF of the NTA. It is submitted that NTSCORP sought the authority of the Court to aid in the exercise of those functions. The submission is made that the situation is analogous to a trustee seeking orders from the Court to perform their functions. In that regard, it is submitted that it is not to the point that NTSCORP could itself call a meeting of the claim group without the order of the Court.
108 The analogy of a trustee is, like so many analogies raised in legal argument, of limited utility. Various responses are available, including that made on behalf of the appellant, that the applicant, being the trustee, by analogy, was not seeking instructions as it already held full and unfettered authority to proceed as it saw fit pursuant to s 62A of the NTA. No issue concerning NTSCORP's power to convene a claim group meeting was, in my view, before the Court at material times. That the claim group was being impeded, or threatened, in relation to the conduct of a meeting for s 66B purposes was not in evidence before the Court. That there was any issue in that regard was, as I have already said, entirely speculative.
109 NTSCORP, in responding to a contention made by the appellant that the relationship between the claim group and the applicant is analogous to the division of power between corporate organs, submits that the proceeding in the Court is unique and that this is an imperfect analogy and of little utility. By contrast, it submits, in native title proceedings, like in a class action under the FCA Act, the use of an applicant serves a practical purpose of selecting representatives as a proxy for the interests of the entire affected group. In that context, NTSCORP refers to Pt IVA of the FCA Act and s 33ZF, which confer broad general powers on the Court to make orders in representative proceedings under that Part.
110 While NTSCORP does not press the reference to Pt IVA powers any further, I consider this is for good reason. Plainly, those express powers under Pt IVA only apply in respect of a representative proceeding as constituted under that Part of the FCA Act. The Court's extensive powers, exercisable at its own motion, enable it to supervise class actions in the public interest. While a native title proceeding may, by way of analogy, reasonably be compared with such a representative action, the fact is that the structure and terms of the NTA govern the process by which an applicant is authorised by a claim group to make a claimant application and the process by which a claim group may withdraw that authority or applicant status subsequently. It is this feature of authorisation, in particular, that distinguishes a proceeding under the NTA from a representative proceeding under Pt IVA of the FCA Act. Unless this authorisation process can, in some sensible way, be said to be subject to threat, the Court's jurisdiction to make orders designed to protect the integrity of the authorisation process cannot arise.
111 In short, I do not accept the submission that because, under s 81, the Court has the power to hear and determine a claimant application made by the applicant on behalf of the claim group, the Court is thereby empowered, at large, to interfere in the applicant's choice of solicitor to conduct the proceeding on its behalf. I accept that if there were some relevant controversy before the Court concerning the authority of the lawyers to act or the function of the claim group to deal with the applicant's authority, the Court might have the power, under s 23 of the FCA Act, to prevent any perceived or potential abuse of the processes of the Court, and to make orders designed to quell that controversy. But, as stated above, I do not believe there was any extant controversy concerning the entitlement of the current solicitor on the record, Sam Hegney, Solicitors, to represent the applicant in the proceeding, or the claim group to exercise its functions concerning the applicant's authority, when the primary judge made the challenged orders.
112 In short, if there is to be any change of applicant, it will have to result from the claim group exercising its undoubted statutory powers under s 66B of the NTA to withdraw the current authority of the applicant to conduct the proceeding and to replace the applicant with another. It lies in the statutory capacity of NTSCORP to lend its assistance to this process, if it be pursued. If any issues subsequently arise that properly give rise to the Court's power to prevent an abuse of its processes, any relevant party can duly apply to the Court for relief.
113 For these reasons, I consider ground 1 of the appeal succeeds.