Consideration of the competing constructions of the phrase, "the area covered by the application"
107 Before considering the submissions, some observations should be made about the relationship between a compensation application and a determination of native title. As a matter of practicality, a determination of native title will usually, but not necessarily, have been made before an application for compensation is brought. In a compensation application, the area in which an applicant alleges that native title rights and interests are affected by an act will not necessarily coincide precisely with the area in which native title has been determined to exist. First, it may be that that a compensable act is alleged to only affect native title rights and interests within a part of the area. Second, a claim for compensation may be made in respect of areas where native title rights and interests have been extinguished. Third, an applicant may claim compensation in respect of areas that were omitted from the scope of the application for a determination of native title.
108 An application for compensation may, therefore, be made in relation to a combination of areas that have and have not already been the subject of a native title determination application. Section 13(2) provides that if the Federal Court is making a determination of compensation and an approved determination of native title has not previously been made in relation to the whole or part of "the area concerned", the Court must also make a current determination of native title in relation to the whole or the part of the area. I will refer to the totality of the areas in relation to which the Court has made or must make a determination of native title in the course of determining a compensation claim as "the native title determination area".
109 The Original Application does not identify any compensable acts. The question to be determined is whether, contrary to s 64(1) of the NTA, amendment to include some compensable acts would, "result in the inclusion of any area of land or waters that was not covered by the original application". The answer depends upon the proper construction of the phrase, "the area covered by the application", in Sch B of Form 4 and in the NTA.
110 Schedule B of the Original Application asserts that "the area covered by the application" comprises all the land, rivers, creeks and waterways contained within the external boundaries of the Bigambul Part A and Part B determinations, other than areas where it has been determined that there are exclusive rights and interests. The applicant is correct to submit that the Original Application literally asserts an "area covered by the application". However, that does not necessarily answer the State's argument, which relies upon a construction of Sch B inconsistent with its literal meaning.
111 Section 64(1) of the NTA requires determination of what areas are "not covered by the original application". Section 62(2)(a)(i) (taken with s 62(1)(b) and (3)(b)), provides that an authorised native title determination application and an authorised compensation application must contain information that enables the boundaries of "the area covered by the application" to be identified. These are cognate provisions and should be construed consistently.
112 The requirement of Sch B of Form 4 for information that enables the boundaries of "the area covered by the application" to be identified must take its meaning from the same requirement in s 62(2)(a)(i). That is at least because s 13(1) of the Legislation Act 2003 (Cth) provides that, subject to any contrary intention, expressions used in a legislative instrument have the same meaning as, and are to be read and construed as subject to, the enabling legislation. The enabling legislation is s 215 of the NTA. The NT(FC) Regulations are a legislative instrument within ss 8(5) and 10 of the Legislation Act. It has not been submitted that any contrary intention is demonstrable.
113 It may be noted that ss 24FB, 24FC, 62, 64, 66, 66A, 84, 87A, 94B, 94C, 190A and 190E of the NTA all use the phrase, "the area covered by the application", or the materially indistinguishable phrase, "the area of land or waters covered by the original application". It may be assumed that the phrase is intended to have a consistent meaning throughout the NTA: see, for example, WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [106]. In addition, a number of these provisions apply, or may apply, to each kind of application that may be made under s 61(1), so that the phrase may be assumed to have the same meaning in relation to a native title determination application, a revised native title determination application and a compensation application.
114 It is therefore necessary to construe s 62(2)(a)(i) and the other provisions of the NTA that use the same phrase in order to construe Sch B of Form 4 and to determine whether Sch B of the Original Application identifies any area covered by the application.
115 A statutory provision must be construed by reference to its language, context and purpose: see, for example, SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]. For the reasons that follow, the applicant's construction of phrase, "the area covered by the application", is inconsistent with the language, context and purpose of s 62(2)(a)(i) of the NTA.
116 The applicant's construction is that "the area covered by the application" in s 62(2)(a)(i) is whatever area the application asserts is the area covered by the application. It is necessary to examine the consequences that would flow if that is the correct construction.
117 It seems self-evident that the "area covered by the application" will not, in a compensation application, necessarily be the whole of the native title determination area (that is, the totality of the areas that have already been, and those that must be, the subject of a native title determination). An "act", within s 226(2) of the NTA, may range from construction of a piece of infrastructure on a small part of the area to the enactment of legislation applying to the whole of the area. While in some cases, an act may affect the enjoyment of native title rights and interests over the whole area, that is not necessarily so. Otherwise, the requirement of s 62(2)(a)(ii) to identify, "any areas within those boundaries that are not covered by the application", would be redundant. The High Court's discussion in Griffiths at [197]-[226] cannot be interpreted as suggesting that an act will necessarily affect native title rights and interests over the whole area. As the High Court observed at [46], s 51(1) of the NTA, "recognises that the consequences of a compensable act are not and cannot be uniform". It follows that in an application for compensation, the area "covered by" the application may be smaller than the whole native title determination area.
118 If the applicant is correct that, "the area covered by the application", is merely the area asserted by the application to be covered, that would mean that even if, in truth, the applicant alleges that a compensable act affects native title rights and interests in only a small part of the native title determination area, the application may legitimately assert that, "the area covered by the application", is the whole of the area. The limitation upon possible future amendments imposed by 64(1) would provide an incentive for applicants to assert the widest possible coverage, namely the whole of the native title determination area, in every compensation application. The applicant's construction would mean that such an assertion is permissible even though inconsistent with the truth and substance of what is being applied for.
119 The phrase, "the area covered by the application", in s 62(2)(a)(i) is a connecting phrase. The phrase refers to, and requires, a connection between an area of land or waters and an application. Section 62(2)(a)(i) applies to an application for an authorised determination of native title and an authorised determination of compensation. It is the determination and consequential order of the Federal Court, rather than the application, that will ultimately have operative effect. The connection envisaged, therefore, is not merely between the application and an area, but also between the determination that is applied for and the area. This is demonstrated by the language of s 61(5)(c), which requires that an application contain prescribed information, "in relation to the matters sought to be determined". Section 62(2)(a)(i), therefore, is concerned with identification of an area connected to ("covered by") both the application and the determination applied for.
120 The NTA uses other connecting phrases, "in relation to an area" and "in relation to land or waters", to describe the connection required between a determination of native title and an area, and between a compensable act and an area: see, for example, ss 13, 17, 223, 225, 228, 232A and 233. The phrase, "in relation to", is capable of describing a relationship or connection of "broad import": see O'Grady v The Northern Queensland Company Limited (1990) 169 CLR 356 at 374. If the phrase, "in relation to", or, "related to", had been used in s 62(2)(a)(i) and Sch B, that might have been somewhat more consistent with the applicant's construction. However, the phrase, "the area covered by the application", was used in s 62(2)(a)(i), as well as provisions such as s 66(2), (2A) and (3). In my opinion, the use of that different phrase indicates that it was intended to have a different meaning.
121 The phrase, "covered by", is narrower and more specific than the phrase, "in relation to". It indicates an area that is to be wholly encompassed or enveloped by the determination applied for. It also signifies a closer and more direct relationship between the area and the determination applied for than would be required by the phrase, "in relation to". It suggests that a relationship of substance is required between the area, the application and the determination.
122 The applicant's construction would mean that in a compensation application even where the applicant is alleging that native title is affected in only a part of the native title determination area, the mere assertion in Sch B of Form 4 that the area covered by the application is the whole of the native title determination area means that the whole area is covered for the purposes of s 64(1). However, it could not be said that, in reality, the application "covers", or envelops, the native title determination area. The assertion would be inconsistent with the language of the phrase, "the area covered by the application".
123 In addition, the purpose of an application form must be to provide information, or, more precisely, to provide useful information, to the persons who are to be provided with the form or with information drawn from the form. If a compensation application could legitimately assert that the whole of the native title determination area is covered by the application when, in reality, the applicant alleges that the compensable act affects native title in only a part of the area, the practical utility of the form would be limited.
124 The applicant's construction can be tested by examining its consequences for the operation of s 66(2), (2A) and (3). It will be recalled that those provisions require the Registrar to give notice of the application to persons and entities with interests in "the area covered by the application". A purpose of those provisions is to provide an opportunity to those whose interests may be affected to be heard. In Daniel for the Ngaluma People & Monadee for the Injibandi People v State of Western Australia [1999] FCA 686, RD Nicholson J also referred at [38] to, "the apparent recognition in the Act of the need to give persons holding interests certainty as to whether their interest is subject of a claim".
125 The determination of an application permitted under s 61(1) in connection with an area of land or waters may affect the interests of persons or entities, including the Commonwealth, a State, or Territory, in that area. In the case of an application for a determination of compensation, it is necessary to identify the person or entity to whom the act is attributable in order to determine who is liable to pay compensation. The persons who may be ordered to pay compensation may extend, for example, to holders of mining tenements pursuant to s 125A of the Mining Act 1978 (WA). In addition, a determination of whether compensation is payable, and in what amount, requires, at least, identification of an act, the effects of the act upon native title and the area in which rights and interests have been affected.
126 The identification of the persons and entities required to be notified by the Registrar under ss 66(2), (2A) and (3) depends upon identification of "the area covered by the application". Section 66(3)(a)(iv) requires that notice be given to persons who hold registered proprietary interests in relation to any of the area covered by the application (subject to an exception under s 66(5) where the Registrar considers that it would be unreasonable to do so). Section 66(3)(a)(vii) requires the Registrar (if the Registrar considers it appropriate) to notify any person whose interests may be affected by a determination in relation to the application. If the area covered by the application is the whole of a native title determination area, the Registrar would, at least ordinarily, be required to give notice to all those identified as having such interests in the entirety of area. The Registrar would also be required, under s 66(3)(d), to notify the public of the application. The notifications would state that the whole area is covered by the application. That would obviously be appropriate in the case of a claimant native title determination application where interests in the whole of the claim area may be affected by a determination.
127 However, under the applicant's construction, if a compensation application asserts that the whole of a native title determination area is, "covered by the application", that is the area covered for the purposes of ss 66(2), (2A) and (3). That would be so even where the applicant is, in truth, alleging that native title rights and interests are affected in only part of that area. In such a case, unnecessary difficulties would be created. First, the Registrar could be required to engage in the potentially onerous and unnecessary task of identifying and notifying the relevant persons for the whole of the area. Second, the persons notified, whether directly or by public notification, would have to decide whether to become parties without information about the precise areas relevant to the application. That would be inconsistent with the purposes of the notification provision, which are to facilitate certainty and provide procedural fairness. It would also be inconsistent with the purpose of informing the Federal Court of a matter necessary for a determination of compensation, namely the particular areas in which native title rights and interests are alleged to have been affected.
128 Acceptance of the applicant's construction would give rise to a situation, such as in the present case, where an application is commenced asserting that the area covered by the application is the whole of the native title determination area, without specification of any compensable acts, and an application for leave to amend is later made to include particular acts and associated areas. That position would be inconsistent with the purpose of ss 64(1) and 66 of the NTA of facilitating certainty among those who hold interests in an area.
129 In light of the language, context and purpose of the relevant provisions, the legislative intention is unlikely to be that the area covered by a compensation application is merely the area asserted in the application to be covered, divorced from the actuality or reality of the area in which native title rights and interests are alleged to be affected.
130 The State submits that the area covered by a compensation application is, "commensurate with the area covered by the asserted compensable act or acts". Under that construction, the applicant would be required to identify a particular act and an area corresponding to the act. There are difficulties with the precise construction advanced by the State. First, the expression, "commensurate with", is not found in the NTA, and there is uncertainty about the parameters intended to be indicated by this expression. Second, that construction is only concerned with a compensation application, and it has not been explained how it would operate in respect of a native title determination application or a revised native title determination application, which do not rely upon "acts".
131 I will say something more about the first of these difficulties, since the parties placed emphasis upon their respective interpretations of what Griffiths says about the "geographical footprint" of a compensable act. The State submits that the NTA and Griffiths provide, "no support…for the idea that a broader area of land which is not itself the subject of a compensable act can be the subject of a compensation claim". This submission suggests that "the area covered by the application" is limited to the area directly affected by a compensable act. However, in Griffiths, the High Court made it clear, at [200]-[219], that non-economic loss, or cultural loss, is not necessarily limited to the precise geographical area where an act takes place, and may extend to the effects of an act upon the enjoyment of native title rights and interests in related areas. The effects may be felt, for example, through a consequential sense of loss of connection to broader areas of country, described by the High Court as "collateral detrimental effect". Therefore, it is unlikely that the legislative intention is to limit "the area covered by the application" to the geographical area which is itself the subject of the act.