PROPER PARTIES TO THE PROCEEDING
53 It is necessary to address this issue first because of a submission made in this proceeding by the State of Queensland, and second because of uncertainty generated nationally by the decision in Arnaboldi v State of Queensland [2023] FCA 788. It is desirable for me to express my own opinion on this issue.
54 At a case management hearing before me on 1 March 2024 in this proceeding, the applicant and State proposed the following order, amongst others:
11. Everything done in the name of the State of Queensland in this proceeding from and including 3 February 2015 (the date on which the State of Queensland filed a Notice of Address for Service) to the date of this order, including filing and otherwise sending of documents in the name of the State of Queensland, is deemed to have been done by the State Minister for the State of Queensland under the Native Title Act 1993 (Cth) on the date they were done.
12. Leave be granted for the State of Queensland to cease to be a party to this proceeding pursuant to s 84(7) of the Native Title Act 1993 (Cth).
55 I infer, based on oral submissions on behalf of the State of Queensland, that these proposed orders were sought following the decision in Arnaboldi. The proposed orders extracted at [54] were not made by the Court on the basis that, at that stage, I was not persuaded that there was something irregular or inappropriate in the State of Queensland being a respondent in this proceeding.
56 The decision in Arnaboldi was handed down on 14 July 2023. Since then, approximately 19 consent determinations of native title have been made by the Federal Court, including four determinations of native title by consent in this proceeding. In each of these determinations, the Court was satisfied that it was appropriate to make a determination pursuant to ss 87 or 87A of the Native Title Act. Only one of those consent determinations has canvassed Arnaboldi. So far as I have been able to ascertain, no other State party in native title proceedings has sought orders in the nature of those sought by the State of Queensland in respect of a determination under ss 87 or 87A of the Native Title Act.
57 In a recent determination by consent in the Northern Territory pursuant to s 87 of the Native Title Act, Halley J considered the reasons in Arnaboldi: see Madrill on behalf of the members of the Amapete, Apwetyerlaneme, Atnweale and Warrtharre Landholding Groups v Northern Territory of Australia [2024] FCA 529. From [32]-[36] of Madrill, his Honour said:
The parties drew to the Court's attention an apparent divergence of authority regarding the identification of the parties to a native title determination given the recent decision of this Court in Arnaboldi v State of Queensland [2023] FCA 788 (SC Derrington J). In Arnaboldi, the Court was asked to resolve a non-claimant native title determination application under s 86G of the Act. The parties submit that the decision of this Court in Arnaboldi ought not to be followed.
Section 86 enables the resolution of unopposed applications without a hearing, if each respondent party notifies the Court in writing that the proposed orders are not opposed. Justice SC Derrington considered that the language of s 84(4) required the State Minister to be a party, rather than the State qua State. Her Honour concluded that given the relevant State Minister was not also a party, the State Minister had not consented in writing pursuant to s 86G(2) of the Act and the Court was not able to conclude the application was "unopposed".
It is reasonably arguable that the reasoning in Arnaboldi could also apply to s 87(1)(aa) of the Act, which requires that all parties to the proceeding are parties to the agreement as to the terms of a proposed order. As acknowledged by SC Derrington J in Arnaboldi at [10], however, any requirement that the State Minister, rather than the State, is a necessary party to a consent determination is inconsistent with "numerous" existing authorities. Any departure from those authorities would have profound consequences for the validity of previous consent determinations of native title.
For present purposes, it is not necessary to reach any concluded view on this issue. The Territory Minister in this case specifically endorsed the solicitor for the Northern Territory as the legal representative of the Respondent to consent to the Agreement. There was no evidence of any such endorsement or involvement of the relevant Minister in Arnaboldi. Moreover, the principles governing consent determinations pursuant to s 87 of the Act were considered in the decision of the Full Court in McLennan on behalf of the Jangga People #3 v State of Queensland [2023] FCAFC 191 at [27]-[32] (Perry, SC Derrington and Colvin JJ). The consent determination in Jangga was founded on the consent of the State of Queensland, not the State Minister. For present purposes, it is significant that although Jangga was determined after Arnaboldi, neither party in Jangga appears to have raised any concern about the Court's power to make the consent determination in the absence of any consent from the State Minister and the Full Court made no reference to Arnaboldi in their reasons for judgment or expressed any concern that the State Minister was not a party to the agreement giving rise to the consent determination.
Further as submitted by the Applicant and Respondent, I am satisfied that the progress of this matter including the steps taken by the respondent in the proceeding, are sufficient to constitute implied notice to the Court that it is the intention of the Northern Territory and the Territory Minister that the Territory qua Territory seeks to be a respondent to these proceedings and to carry out the Northern Territory's role in the capacity of parens patriae.
58 I respectfully agree with the observations of Halley J.
59 However, in these reasons, I consider it is appropriate to express a more concluded view, to attempt to place the role of s 84 of the Native Title Act in what I consider to be its correct context, thus avoiding the potentially highly disruptive consequences for the Court's native title jurisprudence, and determinations, that may result from an overly narrow reading of s 84 and like provisions, and from the obiter statements in Arnaboldi.
60 Section 84 of the Native Title Act relevantly provides:
Coverage of section
(1) This section applies to proceedings in relation to applications to which section 61 applies.
Applicant
(2) The applicant is a party to the proceedings.
…
State or Territory Ministers
(4) If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the State Minister or Territory Minister for the State or Territory is a party to the proceedings unless the Minister gives the Federal Court written notice, within the period specified in the notice under section 66, that the Minister does not want to be a party.
…
61 In my opinion, the correct meaning of s 84(1) is that the section is engaged where there is an application under s 61. In other words, s 84 is directed at parties other than a s 61 applicant.
62 The definitional provision in s 253 relevantly provides:
State Minister, in relation to a State, means:
(a) if there is no nomination under paragraph (b) - the Premier of the State; or
(b) a Minister of the Crown of the State nominated in writing given to the Commonwealth Minister by the Premier for the purposes of this definition.
63 And:
Territory Minister, in relation to a Territory, means:
(a) if there is no nomination under paragraph (b) - the Chief Minister of the Territory; or
(b) a Minister of the Territory nominated in writing given to the Commonwealth Minister by the Chief Minister for the purposes of this definition.
64 And:
Commonwealth Minister means the Minister applicable, in relation to the provision in which the expression is used, under section 19 of the Acts Interpretation Act 1901.
65 There is no doubt that in each claim for a determination of native title, and in each claim for compensation for any loss, diminution, impairment or other effect of an act on native title rights and interests, government parties are necessary and appropriate parties. That is because of their own landholdings and proprietary interests across Australian land and waters, and also because of their representative role in respect of the communities they govern, communities which include First Nations Peoples, but include all people residing in each State and Territory, many of whom might also hold proprietary interests in land and waters, but many who will not and yet comprise the communities with a public interest in the recognition or non-recognition of native title according to law. In Farrer v Western Australia [2019] FCA 655; 369 ALR 324 at [42], I said:
Thus, the State's responsibility is to satisfy itself there is a sufficient basis for concluding that the proposed determination is capable of meeting the requirements of s 225 of the Native Title Act. The way in which the State satisfies itself of that matter may vary considerably from case to case. No minimum requirements of proof can or should be set out. If the State embarks on such a course, and ultimately accepts it is appropriate to recognise the existence of native title in the determination area, then the Court is entitled to proceed on the basis the State has made a reasonable and rational assessment of the material to which it has been given access.
66 In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J stated, in relation to the role of the State in the context of the requirements of s 87 of the Native Title Act, at [36] to [37]:
The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.
In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States.
67 The joint submissions of the applicant and the Northern Territory in Madrill are on the Court record. The matter has been finalised and therefore, generally, submissions then become publicly available. Accordingly, I see no difficulty in referring to them. Relevantly, the parties made the following submission:
The special role, and indeed obligation, of the State or Territory in carefully scrutinising claims for native title is recognised by the Act. It does not advance the objects of the Act to treat the consent of the Territory qua Territory as somehow less effective to convey the Territory's approval of the proposed determination than the consent of a Territory Minister who has had no independent role in the proceedings.
(Footnotes omitted.)
68 See also Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176; 287 FCR 240 at [207]-[208]. These observations have force in the context of the proper construction and operation of s 84(4), and like provisions in the Native Title Act.
69 In its provisions, the legislative scheme of the Native Title Act recognises the various roles of government, generally of the polity itself: see ss 24BD(2), 24CD(5), 24DE(3) and see generally Part 2, Division 3, Subdivision P.
70 An examination of the legislative scheme of the Native Title Act confirms that it cannot have been Parliament's intention in s 84(4), nor other similar provisions, to constrain or restrict the States and the Territories, nor indeed the Commonwealth itself (by references to "Commonwealth Minister"), in how they choose to be represented and participate as a necessary party in Native Title Act proceedings.
71 In neither s 3 (objects of the Native Title Act) nor in s 4 (overview of the Native Title Act) does the scheme indicate any express or implied intention to restrict or constrain the way that a government party can choose to be represented in a native title claim, whether as an applicant (in a non-claimant application) or as a respondent. Nor is any express or implied intention discernible in the Preamble. Rather, the government entities referred to in the Preamble are referred to in the following way:
Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to:
(a) claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and
(b) proposals for the use of such land for economic purposes.
72 Section 5 provides:
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. However, nothing in this Act renders the Crown liable to be prosecuted for an offence.
73 This is a standard provision, but it would, in the context of this legislative scheme, be unusual for the Parliament to intend to constrain governments so that they were unable to conduct litigation on behalf of their communities and their government proprietary interests in the name of the Crown in right of a State or Territory, especially where it would appear that the Commonwealth is able to do so, and would not be - even on the narrowest reading of s 84 - restricted to the joinder of a "Minister" as a party.
74 Likewise, there are many critical provisions in the Native Title Act which operate on the legislative power of Commonwealth, States and Territories. For example, s 11:
11 Extinguishment of native title
(1) Native title is not able to be extinguished contrary to this Act.
Effect of subsection (1)
(2) An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title:
(a) in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc. and native title) of Part 2; or
(b) by validating past acts, or intermediate period acts, in relation to the native title.
75 Section 11 was central to the arguments in Western Australia v The Commonwealth [1995] HCA 47; 183 CLR 373 (eg at 453). There is no suggestion in the text, context or purpose of the legislative scheme that where proceedings might engage issues such as those arising under s 11, a State or Territory would need to apply separately to join a proceeding to protect its interests, or be required to accept it must act in a proceeding only through a "Minister". A similar point could be made about s 13A and Division 2 of Part 2.
76 Also provisions such as s 20(3), which provides, in relation to compensation:
Recovery of compensation
(3) The native title holders may recover the compensation from the State or Territory.
77 I do not intend exhaustively to canvass all provisions of the Native Title Act to make what I consider is a clear point about legislative intention. However, provisions such as s 20(3) illustrate acutely the need for a construction of s 84, and like provisions, which is neither narrow nor unduly prescriptive. The legislative scheme provides for the right to compensation to be against, relevantly a State or Territory. For the Commonwealth, see s 17(4) of the Native Title Act.
78 It would be inimical to the legislative scheme, and the clear intention of provisions such as this, if s 84(4) and like provisions were to be construed as constraining a State or Territory to representation by a "Minister". Indeed, the intended effect of provisions such as s 20(3) is diluted, and perhaps neutered. And I see no basis in the text, context or purpose of the Native Title Act as a whole, or the party provisions of it, to read the Native Title Act as requiring the joinder - in compensation applications - of both a "Minister" and the relevant State or Territory.
79 Further, where the myriad of functions and obligations imposed on the States and Territories under the Native Title Act might need to be enforced, or procedural steps might be required, it is clearer and more helpful to the important principles of certainty and finality if orders are made against a State or Territory itself, rather than a Minister.
80 It is correct that there are other key provisions in the Native Title Act which refer to steps being taken by, or conduct being directed at, Ministers. Consideration of those key provisions together with s 84(4) reveals the intention of the legislative scheme sufficiently clearly.
81 Section 61, an important provision which sets out how applications under the Native Title Act are to be made to this Court, and who is able to make them, refers relevantly to persons who may make an application as the "Commonwealth Minister" or the "State Minister or the Territory Minister". It concerns who may be an applicant, whereas subss 84(3), (4) and (5) generally concern who may be a respondent party: see the text of s 84(2) which is extracted above at [60].
82 I note that if the reasoning in Arnaboldi is correct, it must also apply to the Commonwealth. That is, the Commonwealth as a polity is unable to be an applicant in a native title proceeding, and only "the Commonwealth Minister" as defined in s 253 may be an applicant. That proposition is no more persuasive in relation to the Commonwealth than it is in relation to the States and Territories.
83 Read with the definitions of the terms, which I have set out at [62]-[64] above, provisions such as s 61 and s 84(4) operate as default provisions. That is, they are designed to ensure that there is, by operation of law, a representative of the relevant State or Territory, or the Commonwealth, who is, without more needing to be done, able to participate as either the moving party in a native title proceeding (s 61) where a claim affects the interests of the Commonwealth, State or Territory, or as a responding party (s 84(4)). Section 84 should not be construed as defining the field of operation where there is an application under s 61.
84 Treating these provisions as default provisions also ensures that the Commonwealth, States and Territories must take responsibility for their roles under the Native Title Act, because the scheme recognises they are necessary parties. That the vehicle chosen for this default operation is a member of the executive in each government entity reflects, in my opinion, Parliament's intention not to overreach and join each of the three polities by operation of law, but to afford some choice to those polities to be represented by default by a Minister as merely one member of the executive branch, or to choose or accept joinder, or applicant status, as the whole polity should that be considered appropriate.
85 If an applicant names, and serves, a State or Territory, or the Commonwealth, as a respondent party, then in the context of this legislative scheme there can be no doubt whatsoever that those entities are appropriate, and lawful, parties. The powers of the State, Territory and Commonwealth are wider and more ample than powers assigned administratively to any individual Minister. They enable a "whole of government" approach, with consultation and coordination within government as the Commonwealth, State or Territory sees fit. In making these observations, I refrain from entering the debate about the accuracy and appropriateness of continuing to employ concepts such as the Crown in right of a State or the Commonwealth (as to which see generally: Cheryl Saunders, 'The Concept of the Crown' (2015) 38(3) Melbourne University Law Review 873 and Sue v Hill [1999] HCA 30; 199 CLR 462), although I note s 5 of the Native Title Act does use this language.
86 Likewise, in my opinion, if a State, or Territory (or the Commonwealth) brings a proceeding as a moving party, while the default position by operation of law in s 61 is that a Minister may do so, the polity itself - being the whole of government - is also able to be a moving party, if it so chooses. Alternatively, a polity may choose as a moving party to adhere to the terms of s 61 and to name a responsible Minister only. In either case, the purpose of s 61 is achieved because a State or Territory (or the Commonwealth) with proprietary and other interests sufficient to justify the bringing of an application (eg a non-claimant application for a determination that no native title exists in a particular area) has in substance brought the claim.
87 In my opinion, these are significant and central political and legal choices for the polity concerned - whether it be the Commonwealth, a State or Territory. In a given proceeding, the polity may be content to adopt the default position and operate through a Minister. Or the polity may choose a "whole of government" approach and see it as appropriate that the polity itself be a party.
88 To read these provisions, in their literal references to Ministers, as not permitting that choice may well be to infringe upon, curtail or interfere with the exercise of State constitutional power or capacity, and expose these provisions to an argument they are unconstitutional: see generally Clarke v Federal Commissioner of Taxation [2009] HCA 33; 240 CLR 272 at [32] (French CJ) and [66] (Gummow, Heydon, Kiefel and Bell JJ); Austin v Commonwealth [2003] HCA 3; 215 CLR 185; Melbourne Corporation v Commonwealth [1947] HCA 26; 74 CLR 31.
89 Other provisions which identify a Minister include s 66 (notification) and ss 87 and 87A (consent determinations). The use of the language of "Minister" in s 66 services the same purpose as s 61, in my opinion. The obligation imposed on the Registrar to give copies of an application and other documents under s 63 to a State Minister or a Territory Minister (s 66(2) and to the Commonwealth Minister (s 66(3)(a)(v)) should be construed as a default provision. Their purpose is to ensure that a responsible official within the executive of each affected polity is notified of a claim. If the State, Territory and/or Commonwealth has already been named as a party to a proceeding as a respondent(s), or has brought a proceeding as an applicant, then it would introduce confusion and uncertainty to the operation of the legislative scheme if the Registrar had to notify both the legal representatives of the polity (who will be on the record of the Court) and potentially different legal representatives of an individual Minister (assuming the legal representative can be identified). In such circumstances, in my opinion there can be no doubt that notification of the polity where the polity is already a party will in substance satisfy the requirements of s 66.
90 These are important procedural machinery provisions, but their purpose is to bring a claim to the attention of those who may have proprietary interests affected. Where a polity, or more than one polity, as is common in native title claims, is already on the Court's record as a party, then the purpose of the notification provisions will be achieved if that party is notified in accordance with s 66, irrespective of whether a second formal notification is issued to a Minister as defined in s 253.
91 Sections 87 and 87A, the consent determination powers, also use these terms. That is of course consistent with their use in s 61, s 66, and s 84.
92 Section 87(1) sets out the preconditions for an effective agreement to recognise native title. Those preconditions include, in s 87(1)(aa):
(aa) all of the following are parties to the agreement:
(i) the parties to the proceedings;
(ii) the Commonwealth Minister, if the Commonwealth Minister is intervening in the proceedings at the time the agreement is made; and
93 These terms are consistent with the purposes I have explained above. The legislative scheme is concerned to ensure that any or all of the three governing polities in Australia under the Constitution - the Commonwealth, the States and the Territories - are joined to proceedings where native title claims (or determinations, or orders of other kinds under the Native Title Act) may affect the proprietary interests they hold on behalf of their respective communities. The default mechanism chosen is the mandatory joinder of a responsible Minister (s 84(4)).
94 However, by the time the point of a consent determination is reached, s 87(1)(aa) identifies - relevantly - only the "parties" to the proceeding.
95 By the point s 87 is reached, either the default applicant party provision by operation of law under s 61, or the similar default respondent party under s 84, has been identified. That is why it is sufficient at the s 87 stage of the scheme for Parliament to refer only to the "parties". This is further supported by both ss 87 and 87A applying following the end of the period specified in the notice given under s 66, known as the 'notification period' - where it can be inferred that the State, Territory or Commonwealth has arranged either the default entity or specified Minister to be a respondent party.
96 I note s 87(1)(aa)(ii) carves out a specific process for the Commonwealth as an intervenor (see s 84A) but that is not relevant to the construction exercise in issue. The intervention power available under s 84A is appropriately much wider than any basis in proprietary rights. It is based on the Commonwealth's wider interest "in a matter arising under this Act". That may include a matter of the construction of the Native Title Act, or its field of operation, or it may relate to a specific claim.
97 Section 87A operates in my opinion in the same way, but its application is of course restricted to circumstances where there is agreement over part of a claim area. That is the provision under which the present agreements in the three parts of the Cape York United #1 claim being determined today and tomorrow arise. There is nothing invalid or inappropriate about the fact that, by this stage of the Cape York United #1 claim proceeding, the "party" for the purposes of s 87A(1)(c)(viii) is not the default party of a responsible Queensland State Minister, but is instead the entire responsible State polity, the State of Queensland. It is the State as a polity which will best be able to coordinate, consult and ultimately control all the various governmental proprietary interests which are likely to arise in a complex claim such as Cape York United #1, with an enormous variety of land tenures and land tenure history.
98 My constructional conclusion therefore is that ss 61, 66, 84, 87 and 87A use the terms "State or Territory Minister" and "Commonwealth Minister" as a way of identifying parties who are joined to proceedings by operation of law, so as to further the purposes of the legislative scheme. The use of those terms is not intended by Parliament to be exclusionary or entirely definitional, and should not be understood as precluding a relevant polity - be it a State, a Territory or the Commonwealth, or any combination of these - from either being a moving party in a proceeding, or being a respondent party named by an applicant.
99 Another way of approaching this is to describe the use of these terms in the various sections, including s 84(4), as needing to be reconciled with the Preamble, the objects and the evident purposes of the Native Title Act, including the focus in many other provisions on the obligations and functions of the Commonwealth, the States and the Territories as polities. For the reasons I have given, the language in these provisions is not intended to restrict the choice of applicants or respondents, or of the polities themselves, to be the appropriate party to a native title proceeding, rather than a Minister. "Non-compliance" with these terms, in a literal sense does not lead to any invalidity, and does not require the amendment of parties to a proceeding to conform to this literal language. These provisions provide for a default position, by operation of law, but not one that is intended to be exclusive or restrictive. See generally Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70], Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [43]-[44].