Did the delegate improperly exercise power or make an error of law?
55 In my view, having regard to the submissions made on behalf of the KLC and claimant, and the State and Minister, and the submissions made on behalf of the objectors, who, by counsel at the hearing, strongly supported the approach and reasoning of the delegate, it is necessary to carefully regard what exactly is required by the NTA in relation to the authorisation of an area agreement, having regard to s 251A, and exactly what, factually, occurred at the authorisation meeting.
56 While important general and specific principles may be involved in this analysis, questions of fact are also important to the ultimate resolution of the proceedings before me.
57 The starting point is, as the delegate observed, the requirements of s 251A, as they govern the process by which the persons who hold native title in relation to land or waters in the area covered by an ILUA authorise the making of an agreement.
58 In this case, the persons who attended the authorisation meeting in respect of the ILUA were members of the Balanggarra community who held or claimed the native title to an area of land or waters greater than, but including, the very small area the subject of the ILUA.
59 The evidence before the delegate was capable of supporting the view that under Balanggarra law and custom, to use the language of the delegate in her reasons, some claimants may be members of a "pre-eminent" group with familial traditional connections to a particular area holding a right to "speak for country"; whereas other claimants may "come behind" and have other rights or interests.
60 This does not necessarily mean, though, that the ILUA had to be approved by such a process of decision-making.
61 Section 251A, so far as authorisation is concerned, focuses attention on whether there is:
(a) … 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 …; 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.
62 Certain expressions used in paras (a) and (b) of s 251A should here be noted:
The first is the expression, "persons who hold … the common or group rights comprising the native title". In present circumstances, these comprise the broader Balanggarra community who hold/claim native title rights, including those who the delegate found to be "coming behind", as well as those with the "pre-eminent" right to speak for country in respect of particular areas of Balanggarra territory.
The second is the expression, "things of that kind", used in both para (a) and para (b). Paragraph (a) focuses on the question whether there is a traditional process of decision-making that must be complied with in relation to authorising "things of that kind". On the proper construction of para (a), this may be taken to refer to the authorising of an agreement either like an ILUA generally (as the applicants contend), or an ILUA specifically dealing with the surrender of native title (as the delegate found and the respondent objectors agree with). The delegate effectively adopted the latter meaning in the circumstances of the ILUA in issue here. I consider she was correct to do so. The content of any agreement assists in its proper characterisation. Substance must come before form on this question. Depending on what an ILUA deals with, there may or may not be a relevant traditional decision-making process to cover it. Paragraph (a) is not limited just to "the making of the agreement".
By comparison, para (b), which operates where there is no such traditional decision-making process, focuses on the adoption of a decision-making process in relation to authorising "the making of the agreement or of things of that kind". The particular scenario - "the making of the agreement" - appears in para (b). The additional words in para (b) may be taken to accommodate the making of a decision where the process has earlier been adopted by the group for agreement making.
63 In substance, the delegate here decided that the group of native title claimants who attended the authorisation meeting, in effect were never asked whether there was a traditional decision-making process, for the purposes of para (a), that "must be complied with in relation to authorising things of that kind" - being the authorisation of an agreement that involved the surrendering of native title in the agreement area.
64 Rather, the delegate found that the claim group never addressed that question but were asked and simply decided whether one of four nominated options of decision-making, including by "the land group" or "by majority" should be adopted. By simply voting upon which one of four decision-making processes of authorisation should be followed, the delegate concluded that the group never addressed the question whether there was a traditional process that had to be complied with in relation to the authorisation of an ILUA of that kind.
65 If that correct question had been focused on, the delegate found, the outcome of the authorisation vote may have been different, because members of the family with the "pre-eminent" rights of decision-making would, on her view, have been identified as relevant to the decision-making and might have influenced a different decision.
66 One of the features of the present case is that the ILUA proposed the surrender of native title rights in the agreement area; not merely the carrying out of development in that area. Native title, as originally characterised in Mabo and Others v The State of Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23, and as explicated, under the NTA, by a number of leading authorities, including The State of Western Australia v Ward and Others (2002) 213 CLR 1; [2002] HCA 28 - is inalienable. The idea that it might be "surrendered" under traditional law and custom, is not easily reconciled with the common law or NTA understanding of the nature of native title. It may be surrendered only because the NTA provides a mechanism for it to be surrendered.
67 On that basis the idea that there might be a traditional law providing the process for authorising an agreement whereby native title is surrendered, presents a challenge.
68 However, on the other hand, if the purpose of a surrender of native title is to enable some physical development or use of the area to be surrendered, then perhaps the concept of a pre-eminent native title right holding family having an influential say as to the authorisation of an agreement concerning surrender of native title, may be seen to have a traditional component to it, or a component that might be seen to attract a traditional decision-making process that must be complied with.
69 The existence of people with "pre-eminent" rights in relation to an area does not, however, carry with it the necessary understanding that other native title holders in a local area not holding such pre-eminent rights, do not also have rights and interests in a relevant area.
70 Here, the evidence before the delegate shows that the group of native title claimants who met to discuss the authorisation of the ILUA did not explicitly address this question, but appear to have proceeded on the basis there was no relevant traditional decision-making process for authorising the ILUA.
71 As to whether or not there is a traditional decision-making process as described in para (a) in relation to authorisation of the ILUA is a question, having regard to the terms of s 251A, falling to the group of native title claimants themselves to decide. It is not a question, in my view, for the Registrar, upon registration of the determination or registration application, or for this Court on judicial review, to decide.
72 To the extent that the delegate purported to state whether there was a traditional decision-making process in relation to the ILUA, therefore, I consider she erred. The substance of her decision, however, as I have explained above, is that the claim group was not asked the right question about whether there was a traditional decision-making process for the authorisation of the ILUA by which the claimants agreed to surrender native title.
73 The subtleties and intricacies of a traditional decision-making process, including in those cases where there is an acknowledged "pre-eminent" or "estate" or local group aspect to decision-making in relation to certain things, must be appreciated. It is difficult, in the extreme, for a person external to the broader group of native title claimants, to say with any confidence or precision exactly how a traditional system of land use decision-making operates. It may be relatively easy to say that certain families have "pre-eminent" decision-making rights about what happens in relation to certain things. It is not so easy, though, to say exactly what things are the subject of traditional decision-making; and where there is a thing in relation to which traditional decision-making applies, just how it applies.
74 In my view, properly understood, the evidence before the delegate did not enable the delegate to determine exactly what the extent of the rights of the "pre-eminent" rights holders were, or how the traditional system of decision-making in such circumstances operates, but only that there may exist a traditional decision-making process for the purposes of para (a) in relation to authorisation of the ILUA, and that the group of native title claimants who ultimately resolved to adopt the majority vote option did not turn their minds to the question whether there was, in fact, a traditional decision-making system that existed and had to be complied with under para (a) in respect of the authorisation of the ILUA that dealt with the surrender of native title and payment of compensation.
75 So, it is now necessary to turn to the facts to ascertain what happened at the authorisation meeting in order to test this latter finding.
76 In his affidavit made 31 July 2017, and given to the delegate by the KLC, Mr Kevin John Murphy, principal legal officer of the KLC, gave evidence of decision-making by members of the Balanggarra community by way of agreed and adopted decision-making processes on this and prior occasions.
77 He provided by way of examples:
A decision to authorise a consent determination over the majority of the Balanggarra #3 claim on 1 and 2 May 2013.
A decision to authorise the applicant for the Balanggarra #3 claim to enter into an ILUA over the remainder of the Balanggarra #3 claim with the State on 25 August 2016.
A decision to authorise an application to replace the registered applicant of the Balanggarra #3 claim, pursuant to s 66B of the NTA on 8 November 2016.
A decision to authorise the Balanggarra Aboriginal Corporation RNTBC (which is the prescribed body corporate (PBC) for three Balanggarra native title determinations) to enter into an ILUA with the State on 29 November 2016.
78 In relation to the meeting to authorise the consent determinations of 2013, Mr Murphy explained how on 1 and 2 May 2013, a meeting of the Balanggarra #3 claim group and the Balanggarra combined WAD6027/1998 claim group held a meeting to consider authorising a consent determination over the majority of the Balanggarra #3 claim area and to consider authorising a consent determination over the Balanggarra combined claim area.
79 He said that at the 2013 authorisation meeting there was a discussion about how the members of the Balanggarra community had made such decisions in the past and how they would make decisions at that meeting, and a resolution was passed that resulted in the meeting agreeing to and adopting the following decision-making process for the making of decisions about native title claims that day, namely:
(1) all four "land groups" must be represented at the meeting;
(2) there will be a chance to discuss each matter before a decision is made;
(3) any proposed decision will be written up as a resolution and displayed and read out at the meeting;
(4) there is no formal vote - the decision will be by consensus. Consensus means that when the matter is raised people indicate they support the resolution and no-one says they do not support the resolution; and
(5) once a resolution is passed in this way it binds all the members of the Balanggarra claim group.
80 So far as the authorisation of the ILUA on 25 August 2016 is concerned, Mr Murphy explained that a meeting of the claim group was held at Home Valley to consider whether to authorise the ILUA. He said that at the meeting:
… there was discussion about how the Balanggarra #3 Claim group should make decisions and a vote was taken on the decision making options discussed. Based on the vote it was agreed that decisions at the meeting would be decided by majority vote.
81 He said the members thereby agreed to and adopted a decision-making process under s 251A of the NTA.
82 He says that a similar process was adopted on 8 November 2016 in relation to the replacement, under s 66B of the NTA, of the members of the applicant.
83 The agenda for the ILUA authorisation meeting of 25 August 2016, was produced to the delegate. It set out the following agenda:
84 The minutes of this meeting were also provided to the delegate. They included the following statement:
The meeting discussed who was involved in drafting the ILUA. Kevin Murphy explained that the KLC (as Balanggarra's legal representative) and the State have negotiated this draft, and the purpose of this meeting is to put it to the Balanggarra claim group for input. The next step of the meeting is to go through the ILUA to get input from Balanggarra.
The meeting discusses who is part of the claim group for the purposes of the ILUA. Everyone who is part of the claim group (everyone present, and anyone else part of the claim group) are part of the group required to decide about the ILUA. All of Balanggarra. It is not just one family or one land group. The ILUA is dealing with the last part of the Balanggarra #3 claim, it requires the whole claim group to agree to the ILUA. How that agreement is reached is for the claim group as a whole to decide.
85 The minutes disclose that the meeting then discussed what land was covered by the ILUA as it does not apply to all Balanggarra country, only to those six parcels of land affected by the ILUA in and around Wyndham.
86 The minutes further show that Mr Murphy read out and explained the main clauses of the ILUA which included obligations by which the Balanggarra agree to validate the tenure over the six parcels; to native title being surrendered over the six parcels; that on registration of the ILUA, to a consent determination with the State that native title does not exist over the six parcels; and related provisions.
87 The minutes also note what those attending were told about what the State was agreeing to, including an ILUA package for monetary compensation and land.
88 The minutes further show that Mr Murphy reminded people that it was Balanggarra's decision "whether or not to accept the ILUA".
89 The minutes additionally indicate there was discussion about the role of the PBC versus the claim group and that the PBC does not make native title decisions and that was why the decision was coming before the whole group and not before the PBC.
90 The minutes then state that:
Shirley Williams raises concerns about the voice of NT holders. Discussion about the native title decision making process and what process was adopted for Balanggarra #4 in 2013 - being a consensus approach to decision making.
Ivan Morgan talks about the layers of governance/decision making - that the Government needs ILUA passed by all of the claim group. Explains there is a separate question/decision that is internal about what happens once the ILUA is passed.
The group discusses who the applicants are. Shirley Williams raises concerns regarding who was the original application versus those added in 2013. Shirley Williams asks who should get compensated under the ILUA and who is affected by the impact of the ILUA?
91 The minutes go on to identify a discussion about the quantum of compensation that would flow.
92 The minutes show that there was a break for morning tea with the resumption of the meeting at 11.10am.
93 The minutes disclose that Mr Murphy "calls the meeting back" and then show that Mr Murphy read out three proposed resolutions and explained the effect and intent of them. A discussion about whether to pass them individually or jointly was had.
94 The minutes then state that:
Shirley Williams raises the question of a decision making process and what the decision making process will be.
95 The minutes record that:
The group identifies four different decision making processes, and Kevin Murphy and Patricia Birch facilitate a discussion on what each of these involve:
1. Majority vote - show of hands and majority carries the day.
2. Consensus vote - If a resolution is put up and some don't support it, the resolution doesn't pass.
3. Delegated vote - delegate to someone to make decisions.
4. Land group vote - break into land groups and make a decision then report back
Colin Morgan explains that we are going to make a decision on how to make decisions.
96 The minutes record that:
Kevin Murphy facilitates a vote on the preferred decision making process by show of hands.
97 The results are then shown as follows:
Option 1 Majority vote:
In favour: 37
Those against 5: Les French, Saged French, Shirley Williams, Christine Williams, Peggy Truss
Option 2 Consensus:
In favour: 5
Those against: 37
Option 3 Land Group
None in favour.
Based on this, it is agreed that the resolutions will be decided on by majority vote.
98 The reference to voting by "land group vote" is apt to be a little misleading if read in isolation. If one goes back to the earlier references, by Mr Murphy, to voting by land groups in the 2013 authorisation process, the proposal seems to indicate that, within the Balanggarra community as a whole, there are various land groups. The suggestion would appear to be that, if the claimants break into land groups, each land group considers the relevant issue and reports back (or votes) on it. Plainly, that option did not receive any support in this case, including from the objectors. The objectors appear to have supported the "consensus" method.
99 While the KLC and claimant contend otherwise, it is difficult to see at what point the native title claimants at the authorisation meeting specifically addressed the question whether there was a traditional decision-making process in relation to the authorising of decisions of the kind that they were then being presented with, namely, the authorisation of this ILUA involving the surrender of native title.
100 I do not consider that question was expressly, or impliedly, put and dealt with by the native title claim group at the authorisation meeting.
101 The most that can be said is that, having regard to the past practices of the members of the Balanggarra community in dealing with approval of things such as the making of the consent determination and the other decisions referred to at [77] above, they had been obliged to consider the question of whether there were traditional decision-making processes governing their decision-making more generally. In this case, it might be contended that, by implication, the group rejected any suggestion that there was a traditional decision-making process for authorising the ILUA.
102 Upon closer examination, however, it is difficult to see how the para (a) question as to whether there was a traditional decision-making process in relation to the authorising of the ILUA of this kind was ever raised for consideration by the claimants present at the meeting. Section 251A of the NTA was not mentioned either in terms or in substance. Rather, assumptions were made and four decision-making options were considered. The question was not addressed whether there was a traditional process in relation to the authorisation of the ILUA of this kind.
103 In the result, I consider the delegate did not improperly exercise her power or make any error of law in deciding not to register the ILUA. The delegate, in substance, correctly decided that the question whether or not there was a traditional decision-making process that had to be complied with pursuant to para (a) in relation to the authorisation of the ILUA dealing with surrender of native title, was not addressed by the claimants at the authorisation meeting.