The consequences of non-compliance with the future act procedural provisions
989 I propose to deal with this issue at a general level since the resolution of this debate is capable of affecting the pastoral leases and all of the miscellaneous licences which are still in issue. The issue turns on the effect and application of the Full Court's decision in The Lardil Peoples v Queensland [2001] FCA 414; 108 FCR 453, and two single judge decisions which have applied it consistently with the contentions of the respondents.
990 It appears to be common ground that the grant of miscellaneous licences such as those in issue here passes the freehold test under section 24MD of the NT Act. Acts which pass this test are future acts (whether legislative, executive or administrative) that apply in the same way to native title holders or native title claimants as they do to other people who hold a fee simple freehold in land. There then do appear to be various concessions (at least, from some of the licence holders) about which of the provisions in Pt 2 Div 3 would have applied to each licence: see, for example, the submissions filed on behalf of BHP Billiton Nickel West Pty Ltd, BHP Billiton Yakabindie Nickel Pty Ltd, Albion Downs Pty Ltd and Weebo Pastoral Co Pty Ltd at [17] and [28]-[29].
991 Although the State relied on Lardil in its submissions about the validity of the renewals of the pastoral leases, in its submissions about the miscellaneous licences it does not refer to Lardil. Nor does it do so in its reply. However, the licence holders then make submissions about the effect of the Full Court's decision in Lardil. The basic contention is that Lardil is authority for the proposition that compliance with the procedural requirements in Div 3 (other than those in Subdiv P) of Pt 2 of the NT Act does not condition the validity of the future act. The licence holders therefore submit that any procedural non-compliance established by the applicant will not affect the validity of the grant or renewal of the miscellaneous licences as future acts.
992 In its submissions on pastoral leases, the State relied on the reasons of French J in Lardil at [58]:
As appears from the provisions of each of the subdivisions referred to in Div 3 of Pt 2, the acts which they validate must be future acts. Their validation by a particular subdivision is conditional upon their characterisation as a future act to which that subdivision or section within it applies. The subdivisions which provide for prior notification to registered native title claimants and others do not appear to condition the validity of the future acts to which they apply upon compliance with that requirement.
993 The State also relied on the reasons of Dowsett J at [117]:
[It is a] relatively surprising assertion that Parliament intended to invalidate acts because of failure to give notice to registered claimants pursuant to the relevant validating subdivision … [T]he express wording of each of the validating provisions suggests otherwise. Section 24HA(3) validates a future act without any suggestion that such validation is dependent on any other aspect of the section or subdivision. Native title rights are not extinguished by the act in question, but enjoyment of them may be suspended. Compensation is payable, but there is no suggestion that payment is a condition of validity. There is also nothing to suggest that compliance with s 24HA(7) is a condition precedent to validity. Similarly, s 24MD(1) validates a future act with no suggestion that validity is dependent upon observation of procedural rights.
994 The licence holders also rely on two single judge decisions which they submit have applied Lardil to the same effect. Those decisions are Daniel v Western Australia [2004] FCA 1388; 212 ALR 51 and Banjima People v Western Australia (No 2) [2013] FCA 868; 305 ALR 1.
995 As I understand the position, the State relied on Lardil to defeat the consequence of the applicant's second argument about pastoral leases. That is, the argument that there had been, in the renewals, an extension to the term of the pastoral leases so as to trigger the application of s 24MD of the NT Act. If, contrary to the State's submissions, there had been such an extension, then the State relied on Lardil to submit that non-compliance with the terms of s 24MD did not affect the validity of the renewals as a future act. Given that I have accepted the State's submissions on the applicant's second argument, there is no need to decide how Lardil might operate in relation to the application of s 24MD(1) to the pastoral leases. I do however need to decide, on the submissions of some of the licence holders, how Lardil affects the validity of the grant of any of the miscellaneous licences as future acts.
996 Lardil came before a single judge, and then a Full Court, on an application in the Court's original jurisdiction for declaratory and final injunctive relief to prevent the establishment of a buoy mooring in the Gulf of Carpentaria, in an area of waters over which the applicant had a registered native title claim, which was yet to be determined. The buoy mooring was to be used by a ship, the MV Wunma, designated to transfer zinc concentrate from Pasminco's mine near Mount Isa to bulk carriers moored further out in the Gulf of Carpentaria. Pasminco, the third respondent, had applied for and been granted an authority under Queensland regulations to establish the mooring, the grant having occurred sometime after the native title claim had been transferred to the Federal Court. There had been, it was common ground, no compliance with the procedural requirements of Pt 2 Div 3 of the NT Act. At first instance, the applicant was unsuccessful, broadly on the basis that, given their status as claimants and without a final determination of native title, they could not make out a claim for the final relief they sought. The applicant was also unsuccessful on arguments challenging the validity of the authority under the state regime pursuant to which it was granted. The applicant had not sought interlocutory relief.
997 It is pertinent to set out how French J (as his Honour then was) described (at [44]) what he called "the federal question" (the validity of the authority under state law also being in issue, as I have noted):
… whether the appellants, as registered claimants, have on that basis alone a right to require compliance with procedures under Div 3 of the NTA as though the grant of the Authority were a future act with respect to the asserted native title rights. Absent any such right and absent any evidence of, or reliance upon, native title rights and interests affected by the grant of the Authority, there is a real question whether the State question is encompassed by the federal matter.
998 His Honour went on to characterise Pt 2 Div 3 of the NT Act as providing for the protection of native title, such protection being said to exist through the "broad procedural framework" established by that Division for the doing of future acts.
999 There were two real difficulties in the way the applicant in Lardil put their case, which affected the reasoning of the Full Court. The first was, as Merkel J observed at [70] (see also French J at [59] and [61]) that the applicant sought to rely on their status as a registered native title claimant as sufficient to establish an entitlement to the relief it sought. They did not seek to establish that the future act "affected" native title rights and interests. It was that step which the Full Court held was the critical one in securing any relief. The second difficulty was that, as Dowsett J pointed out at [105], the applicant contended non-compliance with the Div 3 procedural requirements resulted in a future act being invalid, whether or not the underlying native title claim was ultimately successful. This was the aspect of the applicant's reasoning which Dowsett J found so problematic.
1000 It can be seen that the second difficulty is linked to the first, because both give little or no work to the requirement in the definition of a future act that the act "affects" native title rights and interests. The definition assumes that there are underlying native title rights and interests to be protected, but does so in a precautionary and protective way so that Div 3 will cover circumstances where there is a registered claim but no final determination concerning the existence of native title.
1001 The difficulties which troubled the Full Court in Lardil - namely that the argument for injunctive and declaratory relief against Pasminco was founded only on an assertion of the existence of native title rights and interests - are not difficulties present in this proceeding. I have found that native title rights and interests have continued to exist in the claim area and they should be recognised by a determination. On this finding, native title rights and interests existed at the time the miscellaneous licences were granted. There is no doubt the grants "affected" those native title rights and interests because the grants were at least partially inconsistent with the enjoyment and exercise of those native title rights and interests: see Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [22]-[23] (Ward (HC)); s 227 of the NT Act.
1002 In those circumstances, the relevance and applicability of the observations of the Full Court in Lardil arises for consideration. French J made it expressly clear his remarks were obiter dicta: see [59]. Dowsett J's observations fall into the same category. Merkel J described the matters raised by French and Dowsett JJ as "substantial and cogent", but then said (at [72]):
In my view, however, it is preferable to determine this issue, which is one of considerable importance, in a context where the existence of native title, and the question of how a future act affects it, have been determined.
1003 I do not consider I am bound by Lardil to conclude that in the circumstances of this proceeding the non-compliance with Div 3 means that each of the miscellaneous licences should be given full force and effect as against the applicant's native title rights and interests which have been found to exist. That is because, first, their Honours made it clear their observations were obiter, but also, second, and more importantly, Lardil was not a case dealing with native title rights and interests which had been recognised as existing.
1004 The reasoning of French J in particular is resonant of the distinctions between unlawfulness and invalidity made by the High Court in Project Blue Sky Inc v Australian Broadcasting Corporation [1998] HCA 28; 194 CLR 355, decided some three years prior to Lardil. Rejecting the traditional dichotomy between mandatory and directory provisions, the plurality in Project Blue Sky entrenched a different approach based on ascertaining legislative intention whether non-compliance was intended to render an act or decision invalid. At [91], the plurality (McHugh, Gummow, Kirby and Hayne JJ) said:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
(Footnotes omitted.)
1005 The erection of this distinction then led the plurality at the end of its judgment to clarify that non-compliance with statutory requirements may nevertheless have legal consequences (at [100]):
In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision "may in particular cases be punishable". That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.
1006 Merkel J made a similar point at [73] in Lardil, where his Honour said:
I would add that even if non-compliance with the statutory procedural requirements does not invalidate a future act, it does not follow that the procedural rights conferred under the relevant statutory provisions are illusory or ineffective. The procedural rights are important entitlements conferred, for an obvious purpose, on native title claimants or holders in certain circumstances. Although the NTA may not, in all cases, provide an effective or adequate statutory remedy for the failure to afford those rights, equity can intervene to protect or give effect to them: see Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 at 123 and 139; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 74 ALJR 604 at 621; and Carpentaria Land Council Aboriginal Corporation v Queensland (1998) 83 FCR 483 at 508. As the appellants have failed to establish that the grant of the Authority is a future act the issue of equitable intervention or relief does not arise for consideration.
1007 The context in which the High Court in Project Blue Sky considered "validity" was an administrative law context, for the purposes of exercising the Court's supervisory powers over an administrative decision, and determining the consequences of non-compliance with statutory requirements for the validity of that decision, in the face of statutory provisions which on their face suggested the imposition of inconsistent obligations on a decision-maker. As the High Court made clear, the key issue is the ascertainment of legislative intention through the text, context and purpose of the particular statute concerned.
1008 In the present case, the context of the NT Act, and Pt 2 Div 3 in particular, should be recalled. By s 10 the NT Act declares that "[n]ative title is recognised, and protected (emphasis added)", in accordance with the NT Act. The need for "protection" arises where acts inconsistent with the existence or establishment of native title may affect it, because the underlying priorities recognised in Mabo (No 2) and then in the NT Act are that grant of property rights over land and waters which are inconsistent with native title continuing will prevail and will extinguish native title. The important point to take from s 10 is that, as a fundamental premise and within the legislative compromises evident in the scheme, the NT Act contemplates a need to protect native title rights and interests, both when they are claimed but not yet established, and once they are established. Inherent to the "protection" offered by the legislative scheme is s 11, which provides that "native title" cannot be extinguished contrary to the NT Act.
1009 However, as the High Court said in the Native Title Act Case [1995] HCA 47; 183 CLR 373 at 469 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ):
… a law protecting native title from extinguishment must either exclude the application of State and Territory laws or prescribe the areas within which those laws may operate. The Commonwealth has chosen to prescribe the areas available to control by other laws by prescribing what State and Territory laws are "valid" or "invalid" and, if valid, the conditions of validity.
1010 Hence the central concepts in the legislative scheme are the "validity" and "invalidity" of acts affecting native title. And those terms are, as the plurality in Ward (HC) made clear, used with particular meaning in the NT Act. In the Native Title Act Case at 469, the Court explained what those terms mean in the context of the NT Act:
The use of the term "valid" raises the question whether the Native Title Act is attempting to prescribe conditions relating to the power to make or the making of a State law, even though the validity of a State law cannot be affected by a law of the Commonwealth. But the term "valid" (or its derivatives), which appears in more than one of the impugned provisions, has more than one meaning and it is defined in the Native Title Act to include "having full force and effect". In accordance with s 15A of the Acts Interpretation Act 1901 (Cth), that term must be construed to have a meaning which is supported by Commonwealth legislative power; it must not be construed to have a meaning which, in its context, would carry the Act outside Commonwealth legislative power. Therefore the use of the term, its derivatives or its opposite in the impugned provisions, so far as those respective terms relate to a State law, must be taken to mean having, or not having, (as the case may be) full force and effect upon the regime of protection of native title otherwise prescribed by the Act. In other words, those terms are not used in reference to the power to make or to the making of a State or Territory law but in reference to the effect which a State law, when validly made, might have in creating an exception to the blanket protection of native title by s 11(1). In using the terms "valid" and "invalid", the Act marks out the areas relating to native title left to regulation by State and Territory laws or the areas relating to native title regulated exclusively by the Commonwealth regime.
1011 The definition to which the High Court referred in Ward (HC) is contained in s 253 of the NT Act. It is an inclusive rather than an exhaustive definition, and provides that "valid includes having full force and effect". Although Div 3 of Pt 2 was not considered in Ward (HC) (and did not exist at the time of the Native Title Act Case) it seems to me the same analysis must be applied to the use of the concepts of "valid" and "invalid" in Pt 2 Div 3 of the NT Act. The concepts are not being used in the sense they were used by the High Court in Project Blue Sky, with the attendant baggage of acts or decisions being void, and not recognised by law in any sense. Rather, they mean capable of having full force and effect upon the regime of protection of native title, or not, as the case may be.
1012 A further aspect of the context and purpose of the NT Act which is critical to this analysis is the continued application and effect of the RDA on the terms of the NT Act, and conduct pursuant to it. As the High Court in Ward (HC) explained at [99]:
One effect of [s 7 of the NTA] is that, contrary to what otherwise might follow from the fact that the NTA is a later Act of the federal Parliament, the NTA is not to be taken as repealing the RDA to any extent. The significance of s 7(3) is to make it clear that, notwithstanding the continued paramountcy of the RDA stated in the earlier sub-sections, the effect of the validation achieved by the NTA is to displace the invalidity which otherwise flowed from the operation of the RDA.
1013 Again, it can be seen the High Court is using the concepts of "validity" and "invalidity", in terms of s 10 of the RDA, as meaning having full force and effect on the regime protecting native title. I turn then to the provisions in Pt 2 Div 3.
1014 The terms of the "Overview" in s 24AA, and especially s 24AA(2) and (4), describe the effect of the ensuing Subdivisions as making a future act valid to the extent it is "covered" by the provisions. That word suggests the exercise required by the provisions is to ascertain if the kind of future act in issue fits within or is comprehended by one of the Subdivisions. Section 24AA(2) is clear in its terms that acts not so comprehended will be invalid - that is, they will be without force and effect on native title.
1015 Indigenous Land Use Agreements (Subdivs B, C and D) are based on consent arrangements between native title holders, or those claiming native title, and others with property interests in the relevant lands and waters. For those Subdivisions, consent of native title holders, claimants, or their representatives, is a condition of conferring validity on future acts covered by an ILUA. However, the terms of s 24AA(4), and the use of the language of "covered", especially when read with s 24AA(6) ("The Division also deals with procedural rights and compensation for the acts"), do not expressly link compliance with procedural provisions and validity. Rather, s 24AA(4) suggests that validity derives from an act being "covered" by a particular section. Section 24AA(6) strengthens this construction, because it identifies procedural rights as something separate from the validity of future acts. In contrast, the description in s 24AA(5) of acts covered by s 24IC or s 24MD links compliance with a procedure (the right to negotiate) with validity, because it states:
… for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P …
1016 The "also" serves to indicate a separate requirement for validity is added to those set out in s 24AA(4).
1017 Section 24AA does not refer to s 24OA, a provision I consider is of importance in the constructional choice to be made about the effect of the procedural requirements in Div 3. On one view, the textual indications in s 24AA can be seen as supporting the approach taken by the Full Court in Lardil. On another view, what they indicate is that in relation to future acts "covered by" certain Subdivisions (for example, ss 24IC and 24MD, which pick up Subdiv P), strict compliance with those provisions is required for validity: that, in my opinion, is one way to read s 24AA(5) and the Subdivision to which it refers. Alternatively, it could be performing the function of a signpost and no more, given that ss 24IC and 24MD contain cross-references to Subdiv P.
1018 It is necessary to consider each of the Subdivisions separately, to understand how the scheme is structured. Putting to one side the ILUA provisions, and Subdiv F (which deals with non-claimant applications), the first relevant Subdivision is Subdiv G - primary production activities.
1019 The category of acts "covered" by this Subdivision are set out in s 24GB. The notification provisions in s 24GB(9) apply to some, but not all, of the activities covered by s 24GB. The terms of the provision are that, for those activities covered by subs (9) "before the future act is done" certain notifications must be given, including relevantly to either the native title holders (through their body corporate) or native title claimants. There must be notification and an "opportunity to comment on the act or class of acts": see s 24GB(9)(d). Section 24GC has no notification provisions because, instead, in relation to non-exclusive agricultural leases (see s 247B) and non-exclusive pastoral leases (see s 248B) granted before 23 December 1996, those future acts are deemed to prevail over (but not extinguish) native title rights and interests and any exercise of native title rights and interests: see s 24GC(2), and there is no right to compensation. However, s 24GD (off-farm activities directly connected to primary production) does have notification requirements (see s 24GD(6)) and it is in relevantly the same terms as s 24GB(9). The same is true of s 24GE.
1020 The second category of acts "covered" are those in Subdiv H - management of water and airspace. The notification and comment provisions are in the same terms as s 24GB.
1021 The third category of acts "covered" are those in Subdiv I - renewals and extensions of pre-existing rights and leases. The notification requirements, in s 24ID(3), are in the same terms as previous provisions to which I have referred. However, subs (4), headed "Other procedural rights" applies the regime set out in s 24MD(6B) to some renewals as if they were compulsory acquisitions. The terms of s 24MD(6B) provide for an objection process after notification, and offer the possibility of an objection by native title holders or claimants being upheld in a way which could affect the renewal of the lease, subject to overriding discretions exercisable by state or territory ministers: see s 24MD(6B)(d)-(g).
1022 The fourth category of acts "covered" are those in Subdiv JA - public housing. Section 24JAA(10) imposes both notification and consultation requirements, the latter arising if a registered native title claimant, or a registered native title body corporate, requests consultation. The subject matter of such consultation is "ways of minimising the act's impact on registered native title rights and interests" and, if relevant, access to land and waters: see s 24JAA(14). A report of any such consultations and their outcomes must be given, and may be published: see s 24JAA(16). This is an elaborate procedural provision, but it does not contain any text expressly conditioning validity in relation to native title rights and interests on compliance with its terms.
1023 The fifth category of acts "covered" are those in Subdiv J - various reservations and leases (including public works). Section 24JB(6) contains a similar notification provision to that in s 24GB. Section 24JB(7) then contains a further and separate notification obligation relating to the creation of plans of management for state, territory or national parks. This obligation is a good example of the importance of the timing of the imposition of the obligation. Like the other notification provisions, this requirement arises before the future act is done. In this example, the future act is the creation of a management plan for (to take one situation) a national park. If there are (to take one situation) persons who have been finally determined by this Court to hold native title in land and waters covered by the proposed plan of management, then on its face s 24JB(7) imposes an obligation (in a way determined by a legislative instrument - as to which, see below) - before the creation of a management plan - to give those native title holders an opportunity to comment on the plan. The intention of the provision is that the native title holders should be able to have substantive input into the contents of the management plan before those contents are finalised, even if they are not permitted to dictate or insist upon any particular outcomes, priorities, management strategies or initiatives.
1024 The sixth category of acts "covered" are those in Subdiv K - facilities for services to the public, such as roads, railways, bridges, wharves, street lighting, drainage, pipelines, cables and antennae and electricity transmission lines etc. This Subdivision treats native title claimants and holders in a different way. By s 24KA(7), it deems them to be in the same position as either certain kinds of lessees or holders of "ordinary title", in terms of the consultation which must occur with landholders before such facilities are installed. Subsections (8) and (9) deal with how notification can occur if there are no registered native title bodies corporate. This would appear to give native title holders and claimants potentially robust notification and consultation rights, but there is nothing in the text of s 24KA which suggests that, if those parallel procedures are not complied with, there is any effect on the "validity" of the future act.
1025 The seventh category of acts "covered" are those in Subdiv L - "low impact" acts, covering conduct such as tree lopping, clearing of land and environmental assessment activities. There are no notification provisions at all for these kinds of future acts. That would seem to indicate a legislative judgement that the capacity of such acts to affect native title is sufficiently low that native title claimants or holders need not receive prior notice that such future acts are to occur. It should be noted that one consequence of the approach taken in Lardil is, in substance, that future acts undertaken without compliance with applicable notification provisions such as those (for example) in s 24HA(7) are placed in the same position as future acts the Parliament has determined should not be subject to notification and comment provisions at all. That is because non-compliance has no effective consequence, and the future act can have full force and effect against native title interests in the same way as a "low impact" future act.
1026 Subdivision M concerns future acts which pass the freehold test. Principally, the kind of future act with which the Subdivision deals is compulsory acquisition. The rationale for creating the freehold test in relation to some future acts was set out by the High Court in Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20; 235 CLR 232 at [43] (Gummow, Hayne and Heydon JJ):
What is apparent from these Parliamentary materials is a legislative proposal to proceed on the basis provided by the previous s 23, permitting future compulsory acquisition of native title rights, but also to ensure that where, as it now appeared to be feasible [post Wik], native title rights subsisted concurrently with non-native title rights, any power of acquisition was exercised in a non-discriminatory fashion by acquiring and extinguishing both species of rights.
1027 Section 24MD(1) provides:
Validation of act
(1) If this Subdivision applies to a future act, then, subject to Subdivision P (which deals with the right to negotiate), the act is valid.
1028 It is this provision to which French J referred in Lardil. There can be no doubt on the language of this provision ("subject to") that where a future act was done which required but did not involve compliance with Subdiv P, it would not have full force and effect against native title rights and interests. However, one possible construction of a provision such as this is to require strict adherence to all of the requirements in Subdiv P as preconditions to validity: for example, to make time limits such as that in s 28(1)(a) essential preconditions. In detailed legislative schemes dealing with notification, distinctions are regularly made between substantial and strict compliance with notification provisions: see for example Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627 at [34]-[35] (French CJ, Gummow, Hayne, Crennan and Bell JJ). The language of s 28 itself would support such a distinction, and would support construing Subdiv P as requiring strict compliance for validity. In other words, the terms of s 24MD(1) are construed to require strict adherence to all procedural requirements in Subdiv P and the presence of s 24MD(1) does not necessarily tend against a construction of less strictly worded procedural requirements which would see them having an effect on validity, where there is non-compliance. That is especially so when the terms of s 24OA are considered, which I discuss below.
1029 This approach is supported by other parts of Subdiv M. Aside from s 24MD(1), other procedural requirements are imposed for future acts to which Subdiv P does not apply: see ss 24MD(6), (6A) and (6B). These are the provisions (s 24MD(6B) in particular) which are also picked up and applied by earlier Subdiv I. The procedure they set out reaches well beyond notification and comment, to provision for consultation about minimising impact, and then for native title claimants and holders to make objections which are to be heard and determined by an independent body. That determination must be complied with, unless (to express it in shorthand) it is decided that it is "in the interests of the Commonwealth, the State or the Territory not to comply with the determination". Presumably, provisions of this kind were seen by the Parliament as strong and detailed accountability mechanisms, even if ultimately their implementation depends on a residual executive discretion.
1030 Section 24MD(6B) (which contains the more detailed procedural prescriptions, in comparison to s 24MD(6A)) is not expressed in language that resembles s 24MD(1). Rather, its language resembles the other Subdivisions to which I have referred: that is, it is silent on any link between compliance with its terms and the validity of a future act to which it applies. Yet, if the construction favoured by the Court in Lardil is correct, then the whole objection and determination process set out in s 24MD(6B) could be ignored and a future act could still have full force and effect against native title interests, including ones which have been recognised in a determination by this Court.
1031 Subdivision N concerns future acts done in offshore places. By s 24NA(8), native title holders and claimants are placed in the same procedural position as non-native title holders over lands and waters affected by acts of the kind dealt with in this Subdivision. So, again, as in some of the procedural provisions I have already considered, if there is, outside the NT Act, an elaborate process of consultation and notice, and if Lardil is correct, non-compliance with such a process (including deliberate disregard) will not deprive a future act under Subdiv N of its full force and effect against native title interests, including ones which have been recognised in a determination by this Court.
1032 I have dealt with Subdiv P above, and need not repeat what I have said. Subdivision O consists of a single provision, which in my opinion assists in resolving the construction issue. It provides:
24OA Future acts invalid unless otherwise provided
Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.
1033 The provision contemplates that other parts of Pt 2 Div 3 will "provide" for a future act to be valid, which each Subdivision does. And each Subdivision so provides by prescribing procedural requirements, in detail, and of varying levels of stringency; or, by not prescribing any procedural requirements. The starting point of s 24OA - the legislative choice made - is the invalidity of future acts in relation to native title. That is, the legislative choice made is that future acts will not have full force and effect on, at least (taking into account the definition of native title in s 223) those native title rights and interests which have been recognised by this Court in a determination, unless the NT Act "provides" that they will. The scheme then sets out, in great detail, the manner in which each kind of future act may have full force and effect on native title. In my opinion, s 24OA compels attendance to the detailed terms on which each kind of future act is to be given force and effect against native title interests. It discloses a legislative intention that compliance with the requirements set out in each Subdivision (including procedural requirements) is a precondition to a future act having force and effect against native title interests. That is the "protection" which is achieved, in combination with the general prohibition contained in s 24OA.
1034 Accordingly, in my opinion, s 24OA provides sufficient statutory indication of a legislative intention that compliance with procedural requirements is a precondition to a future act having force and effect against native title; at least native title in the sense defined in s 223. Whether the same is true in relation to claims for native title which never result in a positive determination is not something I need decide in the present proceeding. It seems to me, however, the answer to that issue may lie in what the Full Court said in Lardil: namely, if native title claimants are aware of a future act which has not complied with Div 3, they are able to seek injunctive relief pending the determination of their claim to native title. If there is no native title, the injunction will be discharged and the future act can be undertaken (assuming there has still been no procedural compliance). If native title is recognised, then before the future act can be undertaken, compliance will need to occur.
1035 In situations such as those presented by the miscellaneous licences, such a process is not possible. Those licences were granted without compliance with Div 3 and have been in use. The only outcome in such circumstances is to give effect to the legislative intention in s 24OA: namely that on determination of native title those future acts which have not complied at all with the relevant part of Div 3 have no force and effect on the native title interests as declared by the Court.
1036 In each of the provisions to which I have referred, the notification is required to be made "in the way determined, by legislative instrument": see, for example, the Native Title (Notices) Determination 2011 (No. 1) (Cth). If the procedural provisions are construed as not conditioning the validity of the future acts, then that construction extends to the effect of the legislative instruments prescribing the way notification is to be undertaken. In that sense, the legislative instrument is also given no real force or effect. As I explain below, falling back on remedies of injunctions (or declarations) would be wholly unsatisfactory.
1037 Also, in each of these provisions the language used is imperative and, subject to any contrary intention, is not to be construed as affording the repository of the obligations only a discretion whether to comply with the notification procedure set out in the provision: see Acts Interpretation Act 1901 (Cth) s 33(2A). See also SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 at [206] (Hayne J). Imperative language is only one factor, but Parliament is taken to understand the difference between the use of "may" and the use of "must". In the present context, that imperative language is combined with the terms of s 24OA.
1038 All of the provisions have been drafted on the legislative assumption that it is appropriate for those whose native title interests are, or may be, affected by a future act to be given notice in advance of the future act occurring and to have an opportunity to comment on the future act. The purposes of extending such an opportunity manifestly include an opportunity to express a view whether the future act should occur at all, the manner in which it should occur, whether there should be any further consultation prior to it occurring, and what the consequences of the future act might be for native title in the area. Most of these purposes will be rendered nugatory if there is no notice and opportunity to comment until after the future act has occurred. It is true that, because the notification provisions cover registered native title claimants as well as native title holders, the obligations may need to be performed in circumstances where, ultimately, no native title will be found to exist. That is the scheme. That feature of the scheme is in my opinion an insufficient reason to downgrade the protection given to those found to be native title holders so that their native title interests can be affected by future acts without any effective or meaningful notice or consultation.
1039 The giving of notice prior to conduct or decisions affecting (generally adversely) a person's interests (especially proprietary interests) is a cornerstone of the content of procedural fairness. It has been described as a "cardinal principle" (R v Small Claims Tribunal and Homeward; Ex Parte Cameron [1976] VR 427 at 432) and, in the United Kingdom, of "constitutional importance" (Re Hamilton [1981] AC 1038 at 1047). Similarly, in Ruatita v Minister for Immigration and Citizenship [2013] FCA 542; 212 FCR 364, Flick J said (at [55]) that: "[n]otice, put more simply, is not a mere formal requirement; it is a matter of substance going to the very heart of procedural fairness."
1040 Notice is intended to have the substantive effect of informing a person how her or his interests may be affected, and of giving her or him the opportunity to be heard about why they should not be so affected, or why they should be differently affected. The concern is with fair decision-making processes that pay sufficient regard to interests affected: see Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; 204 CLR 82 at [59] (Gaudron and Gummow JJ). That is particularly so in a legislative scheme which expressly seeks to "protect" native title interests, and does so in large measure not by making those interests immune from the effects of future acts, but rather by requiring those who seek to undertake future acts to consult and take account of what those with native title say will be the impact of future acts on their proprietary interests.
1041 In SAAP at [208], Hayne J reached the following conclusion in relation to procedural steps in the Migration Act 1958 (Cth):
Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.
(Emphasis in original.)
1042 While conclusions reached on other statutory schemes cannot be imported into the NT Act, my purpose in referring to Hayne J's conclusion is to demonstrate how the combination of imperative language, detailed prescriptions of steps to be undertaken, and the nature of interests affected can lead to emphatic conclusions about the validity of a decision (or conduct) undertaken without compliance with the statute.
1043 Notice is also imperative to access the remedies that both French and Merkel JJ recognised as available in Lardil. Injunctive relief will only be effective if there is notice of a future act and proceedings can be taken to prevent the future act occurring. Most kinds of future acts do not involve ongoing conduct. Rather, they involve "once off" conduct - the grant of leases, licences, permissions, the making of decisions to undertake certain works. Once the future acts have occurred, injunctive relief to enforce a right to be given notice and to comment is hardly likely to be effective in the majority of future acts covered by Pt 2 Div 3. It does not "protect" native title; rather it facilitates its defeat.
1044 For those reasons, although the matter is not free from difficulty, the better construction in my opinion is that non-compliance with express procedural requirements of a given Subdivision in Div 3 of Pt 2 has the result that the future act has no force and effect against native title interests as determined by this Court.
1045 I accept that this approach differs from that taken by Barker J in Banjima (No 2) [2013] FCA 868; 305 ALR 1 at [986]-[990] and from RD Nicholson J in Daniel. In Banjima (No 2), Barker J said (at [986]-[990]):
Failure to comply with s 24MD(6B) issue: The respondents place particular emphasis on the fact that in Lardil Peoples v Queensland (2001) 108 FCR 453; 185 ALR 513; [2001] FCA 414 (Lardil FC) the Full Court found that a failure to satisfy the right to negotiate did not result in the invalidity of the act in question. The claimants, however, seek to distinguish Lardil FC in that regard saying that it does not apply in circumstances such as the present.
I accept the submissions of the respondents that in Lardil FC at [58], French J appears to have accepted that the subdivisions which provide for prior notification to registered native title claims and others do not appear to condition the validity of the future acts to which they apply upon compliance of that requirement. Dowsett J (at [117]) is to similar effect. Additionally, in Daniel 2004 Nicholson J (at [63]) proceeded on a similar understanding.
As French J noted in his judgment, s 24ID(3) imposes a particular notification requirement in respect of a future act to which subs (1)(b) applied; although that is not relevant here. By subs (3) it would appear there is a mandatory notification procedure. There is no similar mandatory notification procedure provided in respect of other acts to which Subdiv I applies.
Thus, as French J found, Subdiv C to M inclusive of Div 3 do not impose procedural requirements that condition validity (save, one may suggest, for a provision such as s 24ID(3)). His Honour considered Subdiv P to be of a different character because certain provisions state that non-compliance will result in invalidity: see s 25(4) and s 28(1). Dowsett J found to similar effect (at [117]). As the Full Court recognised, Subdiv M, for example, could have contained such provisions but does not. Nor does Subdiv I.
In these circumstances, I accept that authority supports the view that failure to comply with s 24MD(6B)(f) cannot invalidate the grant of tenure in this case, as contended by the claimants.
1046 With the greatest respect to both Barker J and RD Nicholson J, I must reach a different conclusion on construction. For the reasons I have set out, in my opinion there are consequences for the capacity to affect native title of a future act which does not comply with the procedural requirements set out in one of the Subdivisions of Pt 2 Div 3. It appears to me both judges proceeded on the basis of the obiter observations in Lardil, taking this as authority. I have taken a different course, and have reached a different conclusion.
1047 If, contrary to my principal opinion (that non-compliance with the procedural provisions deprives a future act of validity in the sense of full force and effect against native title interests when those interests are determined by this Court), what remains available is some kind of declaratory or injunctive relief, I do not accept such relief provides any kind of workable solution in these circumstances. The exercise and enjoyment of the native title rights I have found should be recognised, including over the land and waters covered by the current pastoral leases, cannot be regulated in an ongoing way by any declaratory or injunctive relief issued by the Court. There will be a myriad of different factual and practical situations in which an exercise of those rights (at its most basic level, for example, to enter onto the land at the Tjiwarl site for purposes connected with looking after the site) will come up against the assertion of rights under a pastoral lease and I do not consider the appropriate way to address that is to have some ongoing general moderation through declaratory or injunctive relief. Non-compliance with other forms of order is contempt of court and individuals should not be exposed to that risk in circumstances lacking clarity and particularity. For those reasons, had I reached a view that it was appropriate to apply the obiter statements in Lardil, I would not as a matter of discretion have made any orders of the kind sought by the applicant.
1048 If the ultimate outcome of the conclusions I have reached is that there must be a compulsory acquisition of the native title interests through a right to negotiate process or ILUA then, as the applicant submits, that is not inconsistent with the protective purposes of the NT Act in respect of native title.