THE RELEVANT STATUTORY PROVISIONS
95 In this section of these reasons, I propose to review the three provisions of the NTA that are at the centre of this proceeding and a number of related provisions. Since this involves an exercise in statutory construction, it is well to recall the principles relating to such an exercise. In essence, they require consideration of the statutory text, its statutory context and the purpose of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41, Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]-[26] and Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]-[23].
96 It is convenient to begin with the latter. The primary purpose of the NTA is to recognise and protect native title. That is clear from the objects stated in its introductory sections: ss 3, 4, 10 and 11. Specifically, s 4(1) provides: "This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act." Similarly, s 10 provides: "Native title is recognised, and protected, in accordance with this Act"; and s 11(1): "Native title is not able to be extinguished contrary to this Act." The "native title" to which all these provisions refer is defined in s 223 of the NTA.
97 Section 11(1) is particularly important in this matter. As the plurality judgment observed in The State of Western Australia v The Commonwealth (1995) 183 CLR 373 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ), this provision has the effect of establishing "an exclusive code" which, among other things, outlines those exceptional circumstances in which native title may be extinguished contrary to that code. Their Honours said (at 453):
… The protection given to native title by this provision removes its vulnerability to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. By that prima facie sterilisation, s 11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title.
98 The ILUA provisions of the NTA are an important part of that exclusive code. In QGC Pty Limited v Bygrave (No 2) (2010) 189 FCR 412; [2010] FCA 1019, I outlined the purpose of those provisions as follows (at [59]):
… [T]he ILUA process in the Act is intended to achieve a balance between allowing future acts to be validated, so as to provide certainty for the broader Australian community, but at the same time, ensuring that those who hold, or claim to hold, native title in the land and waters affected by such future acts, agree to them being undertaken and, if they do, to obtain a corresponding benefit from so agreeing. By this process, those who hold or claim to hold native title in such land and waters should be able to share in the benefits that flow from the future use of their native title rights and interests in that land and waters.
99 The scheme of the ILUA provisions of the NTA is also important when considering the statutory context to the three provisions of the NTA that are at the centre of this proceeding. The most convenient way to describe that scheme is to quote from my decision in QGC Pty Ltd v Bygrave (No 3) (2011) 199 FCR 94; [2011] FCA 1457 (Bygrave No 3) at [23]-[30] as follows:
23 Turning then to the scheme of the ILUA provisions, the first thing to be observed is that ILUAs are creatures of statute: Kemp at [13]. Once an agreement is entered onto the Register of ILUAs (established under s 199A of the Act), it binds both the parties to it and "all persons holding native title in relation to any land or waters covered by" it: s 24EA(1).
24 For present purposes, a "future act" (as defined in s 233) is any "act" (as broadly defined in s 226) which "affects" native title. "Affect" is defined in s 227 to mean it extinguishes, or is wholly or partly inconsistent with the continued existence, enjoyment, or exercise of, native title: Bygrave at [19]. A future act will be valid if the parties to an ILUA consent to the act being done (ss 24AA(3) and 24EB): Kemp at [13].
25 There are three different kinds of ILUAs under the Act: body corporate agreement ILUAs, area agreement ILUAs and alternative procedure agreement ILUAs. Subdivisions B, C and D of Div 3 of Pt 2 prescribe what is required for an agreement to be a body corporate agreement ILUA, an area agreement ILUA and an alternative procedure agreement ILUA, respectively: Bygrave at [20].
…
27 The provisions in Subdiv C, dealing with area agreement ILUAs, are essentially split into two groups: those that prescribe the prerequisites for an area agreement ILUA (ss 24CA to 24CE) and those that prescribe the procedural requirements for the registration of an agreement as an area agreement ILUA (ss 24CF to 24CL): Bygrave at [21].
28 In summary, the prerequisite provisions (apart from s 24CC, which is already described above at [26]) require that: an area agreement ILUA must be about one or more of a number of subject matters (set out in s 24CB) in relation to an area of land; include certain specified persons as parties to the agreement (see s 24CD); and be given for any lawful consideration and subject to any lawful conditions (see s 24CE): Bygrave at [22].
29 The procedural requirements for registration are: making an application for registration of the agreement on the Register of ILUAs (see s 24CG); giving public notice of specified details of the agreement (see s 24CH); lodging objections against the registration of the agreement (see s 24CI); and deciding whether or not to register the agreement on the Register of ILUAs (see ss 24CJ, 24CK and 24CL): Bygrave at [23].
30 Any party to an area agreement may, if all of the other parties to the agreement agree, apply to the Registrar for the agreement to be registered on the Register (s 24CG(1)): Fesl at [21] …
(Emphasis added)
Paragraphs [27]-[30] above are pertinent because the Adani ILUA was an area ILUA as defined in Subdivision C.
100 The last-mentioned section above (s 24CG) is one of the three provisions of the NTA that is at the centre of this proceeding. It provides as follow:
Application
(1) Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.
Things accompanying application
(2) The application must be accompanied by a copy of the agreement and any other prescribed documents or information.
Certificate or statement to accompany application in certain areas
(3) Also, the application must either:
(a) have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 203BE(1)(b) in relation to the area; or
(b) include a statement to the effect that the following requirements have been met:
(i) all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;
(ii) all of the persons so identified have authorised the making of the agreement;
Note: The word authorise is defined in subsection 251A(1).
together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.
Registrar may assist parties
(4) The Registrar may give such assistance as he or she considers reasonable to help a party to the agreement prepare the application and accompanying material.
Certification not affected if Aboriginal/Torres Strait Islander body subsequently ceases to be recognised
(5) To avoid doubt, the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected merely because, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect.
101 This section has a central role in this proceeding because the Certificate allowed Adani to comply with s 24CG(3)(a) above. It, in turn, provided the means by which the Registrar could be satisfied that the identification process referred to in s 203BE(5)(a) below had duly occurred and the consent to the agreement of all the persons so identified had been properly obtained.
102 Later in Bygrave No 3, I outlined the process that ensues once an application of the kind mentioned in s 24CG(1) is made to the Registrar (at [33]-[36]), as follows:
33 Once the Registrar receives a valid application for registration under s 24CG of the Act, he or she is required to give this s 24CH notice. Among other things, this notice has to specify a notification day. That day marks the commencement of a three months notice period for the agreement: s 24CH(2) and (3).
34 From about this point an application for registration of an agreement as an area agreement ILUA takes one of two paths, depending upon whether or not it was certified by the representative Aboriginal/Torres Strait Islander body for the area concerned. Section 203BE(1)(b) and (5) prescribe what is required in such a certificate. Those requirements are essentially identical to the requirements set out in s 24CG(3)(b) …
35 … If [the ILUA is certified] … the notice of the agreement under s 24CH [has to include] a notice under s 24CH(2)(d)(i) to the effect that:
any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification; or
36 Thereafter, during the three months notice period, a person [is] entitled to object under s 24CI on the sole ground that: "the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification": see 24CI(1). Then, any such objection [has] to be considered by the Registrar as one of the two conditions of registration set out in s 24CK.
(Emphasis added)
103 As is mentioned in s 24CG(3)(a) above, the Certificate was issued pursuant to QSNTS' functions under s 203BE(1)(b) of the NTA. Section 203BE is the second of the three provisions of the NTA that is at the centre of this proceeding. It relevantly provides:
General
(1) The certification functions of a representative body are:
…
(b) to certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area for which the body is the representative body.
…
Certification of applications for registration of indigenous land use agreements
(5) A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:
(a) all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and
(b) all the persons so identified have authorised the making of the agreement.
Note: Section 251A deals with authority to make the agreement.
Statement to be included in certifications of applications for registration of indigenous land use agreements
(6) A certification of an application for registration of an indigenous land use agreement by a representative body must:
(a) include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (5)(a) and (b) have been met; and
(b) briefly set out the body's reasons for being of that opinion.
104 It is convenient to digress at this point to identify how QSNTS' certification function relates to its other functions as a native title representative body under Part 11 of the NTA. Seven such functions are described in s 203B(1) as follows:
(a) the facilitation and assistance functions referred to in section 203BB;
(b) the certification functions referred to in section 203BE;
(c) the dispute resolution functions referred to in section 203BF;
(d) the notification functions referred to in section 203BG;
(e) the agreement making function referred to in section 203BH;
(f) the internal review functions referred to in section 203BI;
(g) the functions referred to in section 203BJ and such other functions as are conferred on representative bodies by this Act.
105 Notably for the purposes of this matter, the performance of these functions is expressed in obligatory terms in s 203BA(1). That section requires that a native title representative body "must use its best efforts to perform its functions in a timely manner".
106 The manner in which these various functions interact to facilitate the efficient administration of the NTA was underscored by Barker J in MT (deceased) v State of Western Australia [2013] FCA 1302 (MT v Western Australia) as follows (at [36]-[43]):
36 By s 203BA(1), a representative body must use its best efforts to perform its functions in a timely manner, particular in respect of matters affected by the time limits under the Act and elsewhere. By s 203BA(2), a representative body must perform its functions in a manner that amongst other things maintains organisational structures and administrative processes that promote the satisfactory representation by the body of native title holders and persons who may hold native title in the area for which it is the representative body.
37 By s 203BB(1)(a), a representative body has the function to research and prepare native title applications and to facilitate research into preparation of and making of native title applications.
38 By s 203BC(1)(a), a representative body in performing its facilitation and assistance functions in relation to any matter must consult with, and have regard to, the interests of any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter.
39 By s 203BE(1)(a), a representative body has the function to certify in writing applications for determination of native title.
40 By s 203BF(1)(a), it has a function to assist in promoting agreement in its constituents about the making of native title applications or the conduct of consultations, mediations, negotiations or proceedings about native title applications, future acts, indigenous land use agreements, rights of access and the like under the NTA.
41 Under s 203BH(1), a representative body has the function to be a party to indigenous land use agreements.
42 It may be seen from these briefly stated relevant functions that … a designated native title representative body, has the significant responsibility to inquire into and ascertain who relevant native title holders might be in order to facilitate the efficient administration of the NTA.
43 It may be expected that, in the performance of its responsibilities under the NTA, a native title representative body will necessarily make informed and responsible decisions, but decisions nonetheless that do not always find favour with all persons who may be the holders or potential holders or claimed holders of native title within the representative body's region; as is shown to be the case here.
107 For the purposes of this matter, there are two other important functions of a native title representative body that were not mentioned in MT v Western Australia above. They appear in ss 203BJ(b) and (d) (the "other functions" section), as follows:
In addition to the functions referred to in sections 203BB to 203BI, a representative body must:
…
(b) as far as is reasonably practicable, identify persons who may hold native title in the area for which the body is the representative body; and
…
(d) as far as is reasonably practicable, inform such of the following as the representative body knows are, in relation to the area:
(i) registered native title bodies corporate;
(ii) native title holders;
(iii) persons who may hold native title;
of any matter that the representative body considers may relate to, or may have an impact upon, native title in the area; and
…
108 Returning to s 203BE, first, it is to be noted that the introductory words to sub-ss (5) are, like s 203BA(1) above, expressed in obligatory terms. They place, what is in effect, a negative restriction on the obligatory exercise of a native title representative body's certification function. They do that by specifying that a native title representative body "must not certify under paragraph (1)(b) an application for registration of an [ILUA]" unless it holds opinions about the matters described in sub-ss (5)(a) and (b).
109 When one turns to the text of s 203BE(5)(a), it can be seen that it revolves around the identification of a particular group of persons. The criterion for that identification is whether those persons "hold or may hold native title in relation to land or waters in the area covered by the agreement". By its terms, the section requires the native title representative body to be of the opinion that "reasonable efforts" have been made to ensure that all those persons have been identified. Hence, the critical matter upon which the opinion must be held under s 203BE(5)(a) is whether everyone falling into this category of people has been identified.
110 The expression "reasonable" plainly introduces an objective element to the assessment of the identification efforts undertaken. As for the word "all", in Bygrave No 3 I concluded (at [99]) that, in its second use, it:
must be referring to persons of Aboriginal or Torres Strait Islander descent because it is only those persons who can hold native title rights and interests under the Act … [and] … in this context, [it] is to be given its ordinary meaning which is: "the whole of … any; any whatever … the whole quantity or amount".
111 There is little difficulty with the first part of the expression "who hold or may hold native title". It refers to any native title holders as defined in s 224. On this aspect, I interpose to note that it was undisputed that there were no such native title holders in the area covered by the Adani ILUA. Hence, I have, in these reasons, focused on the second part of this expression, namely those who "may hold native title". As for that part, I respectfully agree with the reasoning of White J in Bright v Northern Land Council [2018] FCA 752 (Bright) that the word "may" introduces an element of objectivity. His Honour expressed that conclusion as follows (at [169]-[170]):
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.
(Emphasis in original)
112 QGC No 3 is the same judgment as Bygrave No 3. My opinion in Bygrave No 3 to which his Honour was there referring had another aspect to it that has some significance in this matter. It was that the expression "hold or may hold native title" had an expansive and inclusive meaning as follows (at [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)
113 These observations apply equally to ss 203BE(5)(a) and (b) because, with the exception of the inclusion of the words in brackets in s 24CG(3)(b)(i) "including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area", ss 24CG(3)(b)(i) and (ii) are substantially identical in their terms to ss 203BE(5)(a) and (b) respectively. As a consequence, most of the parties in this matter referred to the observations above in their closing submissions.
114 There is a number of other aspects of the text of s 203BE(5)(a) that bear noting. First, by its terms, that sub-section does not expressly require the native title representative body to make the reasonable efforts of identification itself, and nor is it expressly required to express an opinion on whether the persons concerned have been notified about the existence of the agreement concerned. However, given the other functions of a native title representative body mentioned above (see at [108]), it can be inferred that the native title representative body for the area covered by an agreement will have already taken "reasonably practicable" measures to identify the persons in that area who may hold native title and inform them, among others, of the existence of any agreement that may have an impact on their native title. In this respect there is an obvious intersection between a native title representative body's certification function and the two "other functions" it is required to perform, as mentioned above.
115 Turning then to the text of s 203BE(5)(b), by its terms, it only requires the native title representative body concerned to hold an opinion about whether the persons identified by the reasonable efforts mentioned in s 203BE(5)(a) "have authorised the making of the agreement". The word "authorised" takes one to s 251A because, as the note below s 203BE(5)(b) indicates, s 251A deals with "the authority to make the agreement".
116 From the abovementioned features of s 203BE(5)(a) and (b), it can be seen that the primary purpose of s 203BE(5) is to ensure that all those indigenous persons whose native title could be adversely affected by a proposed ILUA are identified and given an opportunity to participate in the process by which that ILUA is authorised, or consented to. These provisions do that by requiring that the native title representative body certifying the application for registration is satisfied that the identification process referred to above has duly occurred and the consent of all those persons has been properly obtained.
117 The involvement in this registration process of the native title representative body for the area in which the proposed ILUA is to operate provides an additional level of assurance to those persons. That is so because, as has already been mentioned above, the obligatory functions of a native title representative body include identifying persons who may hold native title in their representative area and informing them about any matter that may impact on that native title.
118 Section 251A(1) is the third of the three provisions of the NTA that is at the centre of this proceeding. It provides:
For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorise the making of the agreement if:
(a) where there is a process of decision‑making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind - the persons authorise the making of the agreement in accordance with that process; or
(b) where there is no such process - the persons authorise the making of the agreement in accordance with a process of decision‑making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.
119 There is a number of aspects of the construction of this section that impact on the outcome of this matter. First, I agree with Logan J in Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150; [2008] FCA 1469 (at [60]) that one is compelled "to construe the reference in the preamble to s 251A to 'persons holding native title' as if it read 'persons holding or who may hold native title' …".
120 Secondly, in Bygrave No 3, based on the observations of Branson J in Kemp v Native Title Registrar (2006) 153 FCR 38; [2006] FCA 939, and the text of s 24CG(3)(b) and s 251A, I concluded (at [90]-[92]) there were two distinct groupings of persons referred to in ss 24CG(3)(b) (cf 203BE(5): see at [112] above) and ss 251A(1)(a) and (b), each of which may hold different elements of the native title, or the native title rights and interests concerned. The first of those two distinct groupings of persons is described relatively broadly as "persons who hold or may hold native title in relation to land and waters" in the area concerned (s 24CG(3)(b)(i) (cf 203BE(5)(a)). The second grouping is described in relatively confined terms as "the persons who hold or may hold the common or group rights comprising the native title" (ss 251A(1)(a) and (b)). The broader scope of the first grouping can be seen from the absence of the definite article "the" before the words "persons" and "native title", and the use of the broader expression "in relation to" when referring to the area of land and waters concerned. The more confined scope of the second grouping can be seen from the use of the definite article before each of the words or phrases "persons", "common or group rights" and "native title".
121 Thirdly, as to the different elements of native title I have mentioned above, it is first to be noted that the general reference to "native title" in the first expression encompasses the broader range of native title, or native title rights and interests, as defined in s 223(1) of the NTA. Importantly for present purposes, as well as including communal or group rights and interests, that definition also includes individual rights and certain statutory rights and interests that have replaced the common law rights and interests defined in s 223(1) (see s 233(3)). By comparison, the second expression is expressly confined to the "common or group rights" element of that definition. It thereby excludes the individual rights and the statutory rights and interests mentioned above to the extent that the latter do not relate to "common or group rights" (see Bygrave No 3 at [90]-[92]). Finally, the usage of the definite article mentioned above, further confines the second expression to "the" native title concerned (see Bygrave No 3 at [97]-[98] and [119]).
122 Fourthly, it is to be noted that the first grouping of persons mentioned above is the same grouping of persons as that referred to in the introductory words to s 24CG(3)(b)(ii) (cf 203BE(5)(b)) ("all of the persons so identified"); and it is the same grouping of persons referred to in the opening words of s 251A ("persons holding [or who may hold] native title in relation to"); and, finally, it is the same grouping of persons referred to in the words "the persons" at the end of s 251A(1)(a), and at the beginning of s 251A(1)(b) ("… the persons authorise the making of the agreement …" ). In contradistinction, the second grouping of persons mentioned above, namely that group of persons who "hold or may hold the common or group rights comprising the native title", are the persons referred to in the body of s 251A(1)(a) and 251A(1)(b).
123 Self-evidently this second grouping will comprise a subgroup within the first grouping mentioned above. Assuming it is a registered claim group, as the W & J claim group is in this matter, it will also be a party to the proposed area ILUA (see s 24CD(2)(a)). Accordingly, and importantly for this matter, it will be the process of decision-making of that second grouping of persons that must be utilised to authorise the making of an agreement under s 251A. That is to say, if that group of persons has a process of decision-making under its traditional laws and customs, then the first grouping of persons (which will obviously include the second grouping) must authorise the making of the agreement in accordance with that process (s 251A(1)(a)). Alternatively, if that second group of persons does not have such a traditional decision-making process, the first grouping of persons must authorise the making of the agreement in accordance with a process of decision-making that is agreed to and adopted by the persons in that second group (see s 251A(1)(b)). Finally, these aspects of the text and context of s 251A indicate that the expression "hold or may hold the common or group rights comprising the native title" is to be given a confined and exclusive meaning (see Bygrave No 3 at [92] and [121]).