Torres Strait Island Regional Council v Chief Executive of the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development [2025] QSC 58
[2025] QSC 58
Supreme Court of Queensland|2025-03-27|Before: Henry J
– POWERS OF COURTS UNDER JUDICAL REVIEW LEGISLATION – DECLARATIONS
– where
the Chief Executive of the Department of Natural Resources has
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICAL REVIEW– POWERS OF COURTS UNDER JUDICAL REVIEW LEGISLATION – DECLARATIONS– wherethe Chief Executive of the Department of Natural Resources hasformed the view the department’s minister should appoint theMaganiLagaugal Corporation as the grantee of many individual grants of land on IamaIsland – where it is required by s 35(1)(a) of the Torres StraitIslander Land Act 1991 (Qld) that there has been a determination ‘thatnative title exists in respect of all or part of the land’ in order forthe Minister to appoint a registered native title body corporate as theland’s grantee – where there has been a relevantdetermination– where seven of the proposed grants of lots are of land which was outsideof the determination area –whether the s 35(1)(a) requirement can be metif the proposed collection of transferable lands include at least some land inrespect of which a positiveNative Title Act 1993 (Cth) determination has
been made – whether the proposed decision to be taken by the Minister
would be invalid
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – NATIVE
TITLE – GENERALLY – where s 35(1) of the Torres Strait Islander
Land Act 1991 (Qld) requires that a registered native title body corporate
can only be appointed as a land’s grantee where there has been
a
determination ‘that native title exists in respect of all or part of the
land’ - whether the s 35(1)(a) requirement can be met if the proposed
collection of transferable lands include at least some land in respect of which
a negative,
or no, Native Title Act 1993 (Cth) determination has been
made
Acts Interpretation Act 1954 (Qld), s 32C
Corporations
(Aboriginal and Torres Strait Islanders) Act 2006 (Cth)
Judicial
Review Act 1991 (Qld), s 21
Native Title Act 1993
(Cth)
Torres Strait Islander Land Act 1991 (Qld), s 9, s 34, s 35, s
36, s 38, s 39, s 40
David on behalf of the Iama People and Tudulaig v
State of Queensland [2004] FCA 1576, cited
Singh v The Commonwealth [2004] HCA 43
(2004) 222 CLR 322, 332
[2004] HCA 43,
cited
Judgment (77 paragraphs)
[1]
ADMINISTRATIVE LAW - JUDICAL REVIEW - POWERS OF COURTS UNDER JUDICAL REVIEW LEGISLATION - DECLARATIONS - where the Chief Executive of the Department of Natural Resources has formed the view the department's minister should appoint the Magani Lagaugal Corporation as the grantee of many individual grants of land on Iama Island - where it is required by s 35(1)(a) of the Torres Strait Islander Land Act 1991 (Qld) that there has been a determination 'that native title exists in respect of all or part of the land' in order for the Minister to appoint a registered native title body corporate as the land's grantee - where there has been a relevant determination - where seven of the proposed grants of lots are of land which was outside of the determination area - whether the s 35(1)(a) requirement can be met if the proposed collection of transferable lands include at least some land in respect of which a positive Native Title Act 1993 (Cth) determination has been made - whether the proposed decision to be taken by the Minister would be invalid
[2]
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - NATIVE TITLE - GENERALLY - where s 35(1) of the Torres Strait Islander Land Act 1991 (Qld) requires that a registered native title body corporate can only be appointed as a land's grantee where there has been a determination 'that native title exists in respect of all or part of the land' - whether the s 35(1)(a) requirement can be met if the proposed collection of transferable lands include at least some land in respect of which a negative, or no, Native Title Act 1993 (Cth) determination has been made
P Dunning KC (29 January) with J Sproule (29 January and 25 March) for first respondent
[11]
Susan Walsh, Gur A Baradharaw Kod Torres Strait Sea and Island Council Torres Strait Islander and Aboriginal Corporation
[12]
The Chief Executive of Queensland's Department of Natural Resources[1] has formed the view the department's minister should appoint the Magani Lagaugal Corporation as the grantee of many individual grants of land lots on Iama Island in the Torres Strait. The Torres Strait Island Regional Council alleges in this application for judicial review that such appointments would be unlawful in respect of seven of those lots.
[13]
[2] Section 35Torres Strait Islander Land Act 1991 (Qld) requires such appointments relate to grants of land which have been the subject of a determination 'under the Commonwealth Native Title Act ... that native title exists in respect of all or part of the land'. There has been a native title determination.
[3] Four of the seven lots in issue were not within a configuration of land that native title was determined to exist in relation to a 'part of'. I accordingly find the appointments of the Magani Lagaugal Corporation as grantee would be unlawful in respect of these four lots.
[4] The conclusions on issues to be resolved in reaching that finding in this judicial review are:
The Chief Executive's conduct is open to review.
The seven lots at issue attract the operation of the statutory scheme because they are transferable land.
The s 34 component of the proposed Ministerial decision is not of itself problematic.
The Magani Lagaugal Corporation is qualified for appointment under s 35.
A s 35 appointment of grantee relates to a confined category of transferrable land.
A s 35 appointment of grantee necessarily relates to the same grant of land to be granted per s 34.
[14]
The Chief Executive's conduct is open to review
[15]
[5] This review is framed, per s 21Judicial Review Act 1991 (Qld), as a review of conduct of the Chief Executive of the Department of Natural Resources.
[6] The conduct is said to be:
[16]
the Chief Executive's formation of the preliminary view that the Department's Minister should:
[17]
(a) pursuant to s 34 of the Act direct the deeds of grant in fee simple be prepared over what has been described in the application as 'the subject land';
>
> (b) pursuant to s 35(2) of the Act, appoint the Magani Lagaugal Corporation as the grantee to hold the subject land for the native title holders of that land, being the Iama and Tudu people;
[18]
and invitation by letter to Council of 23 August 2024 to respond to those views; and
[19]
the Chief Executive's intention to request that the Minister make a (single) decision under ss 34, 35, 38(1) and 38(2) of the Act to direct the preparation of a separate deed of grant for each and every individual lot that comprises the subject land and with the Magani Lagaugal (Torres Strait Islanders) Corporation RNTBC to be appointed as grantee of each and every such deed.
[20]
[7] It is not in dispute that such conduct has occurred. Nor does either respondent dispute such conduct is a proper vehicle for judicial review.
[8] On one view, the application is premature because it is unknown whether, without the presently sought intervention of the Court, the Minister would act as the Chief Executive intends to request. The respondents' apparent acceptance that the Chief Executive's conduct in forming the above view and intention is itself open to review appears to result from the character of the substantive issue underlying it. That issue, a legal issue, is whether the Minister has the authority under the authorising statutory scheme to make the decision which the Chief Executive intends to request of the Minister.
[21]
The seven lots at issue attract the operation of the statutory scheme because they are transferable land.
[22]
[9] The land referred to as the 'subject land' in the present application is most of Iama Island (also known as Yam Island). It consists, on my count, of a total of 114 lots spread across six survey plans, namely SP282718, SP270867, SP282720, SP296836, SP296837 and SP282719. All of those lots are presently held by Council, except for a school reserve on Lot 14 of SP282720. The Ministerial decision being urged by the Chief Executive would have the effect of granting all of the subject land in separate grants of its existing individual lots in fee simple to the Magani Lagaugal Corporation.
[10] The subject land comes within the reach of Queensland's Torres Strait Islander Land Act 1991. That Act was enacted after the High Court's decision in Mabo v State of Queensland.[1] It put in place special measures to advance the interest and responsibilities of Torres Strait Islanders. It created a statutory regime by which so-called transferable lands may be granted in fee simple by the Minister to grantees such as a registered native title body corporate, a corporation registered under the Corporations (Aboriginal and Torres Strait Islanders) Act 2006 (Cth) or a land trust.
[11] Such grants of land are made pursuant to pt 4 of the Act. Land that is to be granted under pt 4 is said to be 'transferable land'.
[12] On the topic of what lands are transferable lands, s 9(1) of the Act relevantly provides:
[23]
(c) available State land the Minister declares to be transferable land.
[24]
[13] All of the subject land is either DOGIT land (i.e. land the subject of a 'Deed of Grant in Trust') or available State land which the Minister has declared to be transferable land. Because all of the subject land is transferable land, it is land within the reach of the statutory scheme.
[14] That land includes the seven lots in issue.
[25]
The s 34 component of the proposed Ministerial decision is not of itself problematic
[26]
[15] The decision in contemplation would have two components, namely:
the Minister's direction of the Chief Executive to prepare multiple deeds of grant of land in fee simple, pursuant to s 34 of the Act; and
the Minister's appointment of the Magani Lagaugal Corporation as the grantee of the land granted under every such deed of grant, pursuant to s 35 of the Act.
[16] The s 34 component of the proposed decision is not of itself problematic.
[17] Section 34 provides:
[27]
(1) The chief executive must prepare such deeds of grant in fee simple as the Minister considers necessary and directs over transferable lands.
[28]
(2) Transferable land need not be surveyed but may be described in a deed of grant in such manner as the Minister directs.
[29]
(3) The deed of grant must show that the land is held by the grantee -
[30]
(a) if the grantee is a registered native title body corporate appointed as the grantee under section 35 - for the native title holders of the land; or
[31]
(b) otherwise - for the benefit of Torres Strait Islanders particularly concerned with the land and their ancestors and descendants.
[32]
(4) If the grantee is a registered native title body corporate appointed under section 35, the deed of grant also must include information to identify the native title holders of the land.
[33]
(5) Subsections (2), (3) and (4) have effect despite any other Act or any rule of law or practice.
[34]
[18] Section 34(1) has the effect of empowering the Minister to direct the Chief Executive to prepare deeds of grant in fee simple over transferable lands. Section 39 of the Act empowers the Governor-in-Council to grant the transferable land and s 40 provides that the deed of grant takes effect on delivery of the deed to the grantee.
[19] Note that s 34(1) contemplates the preparation of 'deeds' of grant in fee simple over transferable 'lands'. Section 32C Acts Interpretation Act 1954 (Qld) provides that in an Act, words in the singular include the plural, and words in the plural include the singular. It follows that s 34(1) contemplates the possibility of a mix of single or multiple deeds of grant in fee simple over single or multiple transferable lands. That flexibility is taken a step further by s 34(2) which contemplates the transferable land need not be surveyed and may be described in a deed of grant 'in such a manner as the Minister directs'.
[20] It is not disputed that all the subject land is transferable land and thus land over which the Minister may direct the preparation of deeds of grant in fee simple pursuant to s 34.
[21] However, it is of present significance that the Chief Executive is urging the Minister to direct the preparation of separate deeds of grant in fee simple in respect of each individual lot that comprises the subject land. Council acknowledges that works no difficulty per se under s 34 because it is open to the Minister to direct that the transferable land be described in a deed of grant 'in such manner as the Minister directs'. The present difficulty arises in the context of there being two paths to appointment of a grantee under the Act.
[35]
The Magani Lagaugal Corporation is qualified for appointment under s 35
[36]
[22] Section 34(3) requires that the deed of grant must show the land as held by the grantee in one of two ways, reflecting two potential processes of appointment.
[23] The first process relates to a holding by a registered native title body corporate for the native title holders of the land. That process of appointment occurs under s 35 of the Act. It is the process by which it is proposed the Magani Lagaugal Corporation should be appointed grantee of each proposed grant.
[24] The second process relates to a holding for the benefit of Torres Strait Islanders concerned with the land, by a grantee which is either a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) or a land trust. This second process of appointment is dealt with by s 36 of the Act. Section 36's appointment process applies 'if the Minister does not appoint' under s 35.
[25] The Magani Lagaugal Corporation is a registered native title body corporate and is the registered native title body corporate for a determination, made on 13 December 2004, under the Native Title Act 1993 (Cth) that native title exists in relation to the land described in that determination. It is qualified for appointment under s 35 but not under s 36.
[26] But there is an issue with its appointment as grantee of seven of the lots pursuant to s 35.
[37]
A s 35 appointment of grantee relates to a confined category of transferrable land
[38]
[27] Section 35 of the Act provides:
Appointment of registered native title body corporate as grantee to hold land for native title holders
[39]
(a) under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and
(b) there is a registered native title body corporate for the determination.
[40]
(2) The Minister may, with the consent of the registered native title body corporate, appoint the body corporate to be the grantee of the land under a deed of grant prepared under section 34.
[41]
(3) If the Minister appoints the registered native title body corporate to be the grantee of the land under this section, the body corporate holds the land for the native title holders of the land the subject of the determination mentioned in subsection (1)(a).
[42]
(4) In considering whether to appoint a registered native title body corporate under this section, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example -
[43]
(a) whether the making of the proposed appointment was a matter relevant to the native title claim under the Commonwealth Native Title Act that resulted in the determination that native title existed in relation to all or a part of the land; and
(b) whether any Torres Strait Islanders particularly concerned with the land, other than the native title holders of the land, may be adversely affected by the proposed appointment; and
(c) if the Minister is satisfied Torres Strait Islanders particularly concerned with the land will be adversely affected by the proposed appointment - any action the registered native title body corporate intends to take to address the concerns of the Torres Strait Islanders.
[44]
[28] It may immediately be observed from the content of s 35(1) that a s 35 appointment relates to a confined category of 'transferable land'. Section 35(1) confines the application of s 35 to a particular category of transferable land, limiting it by the language of s 35(1)(a) and (b). Subsection (a) requires, that there has been a determination under the Commonwealth Native Title Act, which is the Native Title Act 1993 (Cth),[2] that native title exists in relation to all or part of the transferable land. This suggests a temporal connection with the making of the determination - a point developed later in these reasons. Sub-section (b) requires that there is a registered native title body for the determination.
[45]
[29] It is not issue that there was a determination and Magani Lagaugal Corporation is the registered native title body corporate for the determination.
[30] However, the confining effect of s 35(1)(a)'s temporal connection with the making of the determination is in issue. It will be dealt with later in these reasons. First it is necessary to further assess the connection between ss 34 and 35.
[46]
A s 35 appointment of grantee necessarily relates to the same grant of land to be granted per s 34
[47]
[31] Section 35(2) is expressed in language connecting it with s 34. While s 34 relates to the deeds of grant in fee simple which the Minister considers necessary and directs, s 35 relates to the appointment of the grantee of each of those deeds of grant. As much is made clear by s 35(2) which empowers the Minister to appoint the consenting registered native title body corporate 'to be the grantee of the land under a deed of grant prepared under s 34'.
[32] Section 35(2) thus establishes a connection between ss 34 and 35 in identifying the land referred to in s 35. The second respondent highlighted that there is no article qualifying the term 'transferable land' in ss 34 or 35, such as a 'lot' or a 'parcel' of transferable land. But the express words of , in conferring the Minister's power to appoint a grantee of land, make it inescapable that the transferable land there being referred to is the land which is to be the subject of a deed of grant prepared under
[48]
Section 35(1)(a)'s temporal anchoring point in reference to the land it refers to is the time of the native title determination
[49]
[45] This all leads to consideration of the second obstacle, which is the confining effect of s 35(1)(a) and its temporal anchoring point.
[46] Section 35(1)(a)'s language is quite specific in identifying the requisite connection between the transferable land and the determination. In referring to the transferable land, it requires that 'under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land'. Section 35(1)(a) thus involves an anchoring temporal connection between the land it refers to and the determination that was made. Because such a determination can relate to all or part of the land, regard to what that land then was is essential.
[47] The respondents argued s 35(1)(a)'s reference to 'all or a part of the land' opens up a broad discretion for the Minister to in effect grant multiple lots of transferable land and bring that set or collection of lots within s 35(1)'s confining effect as long as 'part of' that set or collection has been the subject of a native title determination. But that is to pretend that s 35(1)(a)'s reference to 'all or a part of the land' is free floating and open to the determinative whim of the Minister when it is expressly anchored to whether the land is 'part of the land' that native title was determined to exist in relation to. The determinative consideration in s 35(1)(a) is not how the minister chooses to describe land which is transferable land at the time the grant is made, but whether the land caught by that description was, at the time of the determination, within at least 'part of' a configuration of land that native title was determined to exist in relation to.
[50]
Four of the proposed grants are of transferable land that was not part of the land that native title was determined to exist in relation to
[51]
[56] The determination decision, made by Cooper J in David on behalf of the Iama People and Tudulaig v State of Queensland QG 6052 of 1998,[6] occurred after consolidation of four applications, the further amendment of the consolidated application, mediation and agreement to a consent determination.
[57] The Court satisfied itself, as was its independent obligation, that the consented-to orders and determinations should be made. The orders made contained various details, the presently relevant order being order 1:
[52]
'Native title exists in relation to the land and waters described in Schedule 1 and shown on the plan in Schedule 2 ("the determination area").'
[53]
[58] The Schedule 2 plan reflected the Schedule 1 description of the determination area, which was:
[54]
The land and waters on the landward side of the High Water Mark of:
[55]
(a) Lot 13 on Plan TS177 being part of the island referred to as Yam Island excluding the areas described as:
[56]
(ii) Lease A on Deposited Plan 149845 in Lot 13 on Plan TS177;
[57]
(b) Lot 40 on Plan TS216 referred to as Zagai Island or Jeaka Island;
[58]
(c) Lot 42 on Plan TS216 referred to as Tudu Island; and
[59]
(d) Lot 44 on Plan TS216 referred to as Cap Islet or Mukar Islet or Muquar Islet.
[60]
Lot 14 on Plan TS178, Lot 1 on Plan TS362, Lot 50 on Plan TS283, Lot 2 on Plan TS117, Lots 4-6 on Plan AP9680, Lease A on Deposited Plan 149845 in Lot 13 on Plan TS177 and Roads are not subject to native title determination application Yam Islanders/Tudulaig Combined QG 6052 of 1998 and do not form part of the land and waters described above.' (emphasis added)
[61]
[59] The above emphasised passage's use of language in identifying excluded land is significant. Its language indicated roads and specific lots were 'not subject to the native title determination application'. Importantly it did not contain qualifying reference to only 'part of' those areas of land. In the absence of such qualification the determination cannot be said to have determined that native title exists in relation to any part of the land within the roads or those specific lots.
[60] The present description of the seven lots in issue and the description of the lots they fell within at the time of the determination is different. The respective descriptions are:
[62]
Lot descriptions the lots fell within at time of native title determination 13.12.04
[63]
(so described since sub-division of lot 13 on TS177 on 18 January 2017)
[64]
(so described since sub-division of lot 13 on TS177 on 18 January 2017)
[65]
Road (dedicated 24 October 1989 per s 362(2) Land Act 1962 (Qld))
[66]
(so described since registration on cancellation of Lot 1 on TS362 on
[67]
(so described since registration on cancellation of Lot 14 on SP151793 on 13 March 2017)
[68]
(so described since registration on cancellation of Lot TS178 on 29 April 2003, though still referred to as Lot 14 on plan TS178 in the determination)
[69]
[61] A comparison of the right hand column above with the land identified in Schedule 1 of the determination as 'not subject to' the native title determination application immediately demonstrates the land within the lots in (b), (c) and (d) above was not within a part of the land that native title was determined to exist in relation to. This determinatively excludes those lots from s 35's application.
[62] In contrast, as (a) above shows, the land in lots 50, 97 and 104 on SP270867 was within a part of the land that native title was determined to exist in relation to, namely lot 13 on TS177. The fact that the area of land in those lots came within areas of lot 13 on TS177 that were excluded from the determination area is an incident of the fact that native title was only determined to exist in relation to 'part of', rather than all of, lot 13 on TS177. However, the determination that native title existed in relation to a part of lot 13 on TS177 means that the whole of the area of land which was within lot 13 is land to which s 35 applies.
[70]
[63] Lots 50, 97 and 104 on SP270867 were within a configuration of land which native title was determined to exist in relation to a part of. Therefore, even though they were not within that part, they are properly within the legal reach of the proposed decision.
[64] Lots 63 and 96 on SP270867, lot 1 on SP282718 and lot 14 on SP282720 were not within any configuration of land that native title was determined to exist in relation to a part of, and thus not within the legal reach of the proposed decision.
[65] Declaratory relief is apt to quell the controversy of concern in this review.
[66] I am conscious the application's ground did not relate to lot 14 on SP282720, because Council has no interest in lot 14, a school reserve. While lot 14 is, for the reasons discussed, beyond the legal reach of the proposed decision, the prudent course, in the absence of an interested contradictor to the respondents in respect of that lot, is to cast the language of the declaration neutrally as regards lot 14.
[67] This can be done by declaring the invalidity of the proposed decision insofar as it would relate to 'at least' lots 63 and 96 on SP270867 and lot 1 on SP282718. That inclusive language provides exclusory clarity as regards the lots it names without being exhaustive. It will be readily apparent to any reader of these reasons that by using such language I was concerned to ensure the declaration was not wrongly seen as including any endorsement of the validity of the proposed decision as it relates to lot 14 on SP282720.
[71]
[68] It will be necessary to hear the parties as to costs if costs are not agreed.
[69] My orders are:
It is declared that the proposed decision that a deed of grant in fee simple be prepared over each of the lots referred to in the Amended Application for a Statutory Order of Review and that the Second Respondent be appointed as the grantee under each such deed of grant to hold the land the subject of each deed for the native title holders for the Iama and Tudu People, would be contrary to ss. 34(3) and 35 of the Torres Strait Islander Land Act 1991 and invalid, insofar as the decision would involve the appointment of the Second Respondent to hold the land in deeds of grant in fee simple of at least lots 63 and 96 on SP270867 and lot 1 on SP282718.
The parties will be heard as to costs, if costs have not been agreed, at 9.15am 23 April 2025 (out of town parties having leave to appear by videolink).
[72]
[1] The Department's full name is the Department Of Natural Resources And Mines, Manufacturing And Regional And Rural Development.
[5] The same obligation of expedition arises under s 38(2) for land that 'becomes transferable land after the enactment day'. Section 38(3) contains qualifications upon that obligation of expedition.
[33] That said, it will be recalled s 34(2) contemplates the transferable land need not be surveyed and may be described in a deed of grant 'in such a manner as the Minister directs'. It follows that the Minister may elect to describe land in the deed of grant by grouping land, presently configured in multiple lots, into the Minister's description of a single deed of grant.
[34] But that is not what is proposed here. Instead, it is proposed there will be multiple single deeds of grants of land presently configured in single lots, with the description of the land granted in each instance matching the existing description of a single lot.
[35] The Chief Executive is urging the Minister to appoint Magani Lagaugal Corporation to be the grantee under each of those deeds of grant. Yet it is common ground that some such deeds of grant would relate to land in respect of which not even a part of that land has been the subject of a native title determination.
[36] The respondents argue that the distinction is irrelevant because the confining requirement of s 35(1)(a), that there has been a determination that native title exists in relation to all or a part of the land, can be met by 'the practical reality' of what is proposed, namely that the proposed collection or set of transferable lands involves most of the island and includes at least some land in respect of which such a determination has been made. There are two obstacles to that argument.
[37] One obstacle is that s 35(1)(a)'s temporal anchoring point in reference to the land is the time of the native title determination - a topic discussed below.
[38] The other obstacle to the argument is that it ignores how the aforementioned connection between ss 34 and 35 confines the land being referred to for the appointment in s 35(2) to the same area of land which is to be the subject of a deed of grant prepared under s 34.
[39] The respondents emphasised that the wording of both sections may inform their collective construction. As much flows from the conventional interpretative principle that the meaning of text should be considered in context,[3] as well as the fact that ss 34 and 35 obviously serve connected purposes.
[40] As already explained, s 34 relates to the making of deeds of grant in fee simple which the Minister considers necessary and directs, whereas s 35 relates to the appointment of the grantee of such deeds of grant. So too does s 36. That the grantee appointment process may occur per s 35 or s 36, and that each involves consideration of the suitability of the grantee, has present relevance. The respondents emphasised the identification of the grantee, whether per s 35 or s 36, needs to be known in order for the s 34 direction to be given. That highlights the sections' connection. But it also highlights that ss 35 and 36, with their focus on the process of appointing of a grantee of the land, serve a different purpose than s 34, with its focus on the making of the grant of the land.
[41] The respondents highlighted the facilitative nature of s 34 and emphasised the importance of interpreting the Act consistently with its beneficial purpose. But the interpretative issues in this review do not involve a contest between a beneficial interpretation and one which does not facilitate the making of grants. The present point taken by Council would not, if correct, impair the Minister's ability to make grants of land and appoint grantees thereof. It merely goes to identifying which of two available appointment processes under the Act is apt in respect of the presently proposed grants.
[42] For each separate deed of grant under s 34, the Act's regime requires there to be a grantee selected and appointed under s 35 or s 36. Even if it is the same grantee in each instance, it remains that, if there are 100 grants, there will be 100 appointments of grantees. In each such instance, for the appointment to be controlled by s 35, the land the subject of the grantee's appointment, which under s 35(2) is the land under the deed of grant prepared under s 34, must conform with the clear confining requirement of s 35(1)(a), discussed further below. For reasons discussed below, at least some of the lots of transferable land proposed to be the subject of individual grants do not conform with that requirement.
[43] Such a contradiction of s 35 cannot be ignored as academic on the basis that, as the respondents emphasised, the Act does not confine the Minister to making grants of land under s 34 in the form of individual lots on a survey plan. It was submitted the minister could take the course of directing that there be a single deed of grant in fee simple in respect of the whole of the subject land and could make a single appointment of the Magani Lagaugal Corporation as grantee under s 35. However, that is not the course under consideration in this review and in any event it would not avoid the below discussed obstacle presented by s 35(1)(a).
[44] There is another reason why it is incorrect to assume, as the respondents' argument impliedly does, that there is no practical difference in the Act's application to either of the above courses. There inevitably will be. That is because each involves regard to discretionary considerations, per s 35(4), for determining the entity to be appointed as grantee. Those considerations will involve different factual considerations, at the very least as a matter of degree, in respect of a single appointment of a grantee of a single grant of one area of land as distinct from multiple appointments of a grantee of multiple grants of multiple areas of land. They may lead to differences in the identification, per s 35(4)(b), of which, if any, Torres Strait Islanders, who are not 'native title holders', but are 'particularly concerned with the land', 'may be adversely affected by the proposed appointment'. In a similar vein, for s 35(4)(c), it may lead to differences in 'any action the registered native title body corporate intends to take to address the concerns' of those Torres Strait Islanders. None of this is to say the Minister would reach different conclusions as to the appointment in light of such considerations. The point is that it cannot be assumed the same conclusions would be reached.
[48] The second respondent submitted there is no temporal requirement in s 35(1) because its opening words refer to 'transferable land' and land may become transferable land at a time after a determination. It is uncontroversial by reason of those opening words that the land, at the time of the appointment under s 35, must be transferable land. But it remains necessary, pursuant to sub-s (1)(a), that native title was determined to exist in relation to all or a part of that land. Whether that land was then transferable land or not, is not the focus of sub-s (1)(a). Its focus is the area of land which was under consideration at the time of the determination. It is only by having regard to what that area then was and whether the area of transferable land now proposed to be granted fell within it, that it is possible to ascertain whether s 35 applies.
[49] That the legislature chose to embrace the possibility that 'part of' but not necessarily all of the land referred to s 35(1) may have been the subject of a determination is unremarkable, both as a matter of law and fact.
[50] It is unremarkable as a matter of law because under the Native Title Act 1993 (Commonwealth) the Federal Court has power to make a determination for 'part of' the area of land covered by the application for a determination of native title.[4]
[51] That the legislature's choice is unremarkable as matter of fact may be demonstrated by a simple example. Suppose a determination related to a configuration of land which spanned a creek running across it and the determination was that native title existed in relation to the land on the northern but not the southern side of the creek. The pragmatic effect of s 35(1)(a) is that, because it was determined native title existed in 'part of' that configuration of land, the whole area of land that was within that configuration when the determination was made is caught by s 35(1)(a).
[52] That half of the area of the configuration in the above example was excluded from the determination area does not remove the area of the configuration from the reach of s 35(1)(a), for the other half of it was within the determination area.
[53] The anchoring requirement is that the transferable land which the Minister intends to appoint a grantee over must at least have been within part of the configuration of land that native title was determined to exist in relation to some part of. If it was not, then it cannot be said, as s 35(1)(a) requires, that it is 'part of the land' that native title was determined to exist in relation to.
[54] The respondents advanced an alternative argument that the relevant temporal anchoring point is the date of enactment of the Torres Strait Islander Land Act, namely 12 June 1991. Section 38(1) of the Act requires the Minister to move as soon as practicable to making necessary directions under s 34 and appointments under ss 35 or 36 'in relation to land that is transferable land on enactment day'.[5] It was submitted the transferable land did not cease to be transferable land after enactment day, with the consequence the confining requirement of s 35(1)(a) would be met, if any part of the transferable land as configured at the date of enactment fell within 'part of the land' that native title was determined to exist in relation to,.
[55] That argument must be rejected because it ignores s 35(1)(a)'s confining effect. Indeed, it ignores that there may not even have been a native title determination at the time of enactment, in which case there would be no scope for s 35's application if the argument were correct. More particularly, there is nothing within s 35(1)(a) to suggest any temporal reference to the land as configured as at the date of enactment.