The need for the Court to protect the status quo
60 Ordinarily, intra-mural disputes involving issues as to whether internal processes have been observed in claim group decision-making or internal disputes within a claim group, will be resolved in accordance with a process under s 251B, as Mansfield J explained in his lucid exposition of the principles in Starkey v South Australia (2011) 193 FCR 450. The current dispute is of a different character. French, Finn and Hely JJ remarked in Davidson v Fesl [2005] FCAFC 183 at [25] the definition of the claim group is of great importance. In that case, there were serious disagreements concerning the identification of the claim group. Their Honours said:
"While the identification of the claim group is so constrained and contentious it is difficult to see how the question of authorisation, which is dependent upon that definition, can ever satisfactorily be resolved."
61 The authorisation of an applicant to make a native title application and to deal with matters arising in relation to it under s 251B has hallmarks of a fiduciary relationship. In John Alexander's Clubs Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1 at 34-35 [87] (and see too at 34-36 [86]-[92]) French CJ, Gummow, Hayne, Crennan and Kiefel JJ approved the identification by Mason J in Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 96-97 of:
"the critical feature of what may be called the accepted traditional categories of fiduciary relationship - trustee-beneficiary, agent-principal, solicitor-client, employee-employer, director-company, and partners inter se. That critical feature was 'that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense'. From this power or discretion comes the duty to exercise it in the interests of the person to whom it is owed." (footnotes omitted; their Honours' emphasis)
62 And, as McHugh, Gummow, Hayne and Callinan JJ held in Pilmer v Duke Group Limited (In Liq) (2001) 207 CLR 165 at 197-198 [74], 199 [78]-[79], unless the fiduciary has the informed consent of the person to whom such a duty is owed, he, she or it has a duty first, not to obtain any unauthorised benefit from the relationship and, secondly, not to be in a position where the interests or duties of the fiduciary conflict, or there is a real or substantial possibility they may conflict, with the interests of the person to whom the duty is owed. Once again it is not necessary to explore further in these reasons whether or how such obligations apply here, beyond recognising that there is a real possibility that they may.
63 Nor is it necessary here to describe or work out the precise balance to be struck between what is conferred on an applicant by a general authorisation under s 251B to act on behalf of the native title claim group and what it can agree with third parties for it, its members or others to receive as recompense for work, effort and expenses in carrying out what obligations are imposed on them by such agreements. It suffices to say that any powers conferred on an applicant by an authorisation under s 251B cannot be used for an ulterior purpose: cf Ngurli Limited v McCann (1953) 90 CLR 425 at 438-440 per Williams ACJ, Fullagar and Kitto JJ, Vatcher v Paull [1915] AC 372 at 378 per Lord Parker.
64 The rights that the Act confers on an applicant to negotiate ILUAs and s 31 agreements, and the similar rights under State and Territory legislation, are important. They often facilitate the pursuit by third parties of activities on lands and waters that are the subject of unresolved, pending applications for determinations under the Act of whether and what native title rights and interests exist in respect of those lands and waters. The Parliament created the rights to negotiate ILUAs and s 31 agreements as a means of protecting the legitimate interests of those third parties to pursue such activities, despite there being no certainty as to the ultimate outcome of proceedings for a determination of native title under the Act. Thus, the authorisation created by following a process under s 251B of the Act must be construed in a practical and realistic manner as permitting the applicant to exercise sufficient authority as will allow negotiation and finalisation of ILUAs, s 31 agreements and similar contracts on behalf of the native title claim group. That authority also might ordinarily be expected to enable reasonable and appropriate remuneration, reimbursement or reward for necessary work, expenses and activity to be undertaken by or on behalf of an applicant in giving effect to reasonable, necessary or appropriate actions relevant to the particular agreement.
65 For example, a mining company or local government authority may need to know whether an area or particular location, on which it proposes to do work or undertake an activity, is of significance to the native title claim group for cultural or other reasons. It would ordinarily be reasonable for transparent and appropriate arrangements to pay and reimburse members of the applicant, others with appropriate knowledge of the area or location, including if need be an anthropologist or lawyer, or persons in the native title claim group, to provide such work or assistance. On the other hand, the right to negotiate ILUAs, s 31 agreements or other similar contracts, ordinarily, could not be used to enrich the applicant or its members or others at the expense or to the detriment of the native title claim group as a whole.
66 Where there is a real and live controversy that at a final hearing it may not be the correct applicant, the mere fact that one party may be able, procedurally, to satisfy the Court that it is entitled, for the purposes of conducting the proceedings, to be the applicant, may not be sufficient to enable that party, to the detriment of the native tile claim group, to use its interim status as the applicant to take advantage for itself or its associates of rights under the Act or rights that that party can assert as a result of a status under the Act, that are intended for the benefit of whoever may be found at trial to be the claim group. Those rights were not intended to be conferred beneficially on the particular membership of the applicant or its associates for the time being. Rather, the Act intended that a determination of native title would benefit the claim group by recognising their continuing rights to land and waters and permitting them, not a mere procedural intervener who was subsequently displaced, to benefit from their native title rights and to retain or obtain control over rights that had been acquired earlier by virtue of the applicant's status as the party bringing proceedings for that determination.
67 In Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1 at 32-33 [35] Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ discussed the principles upon which interlocutory relief may be granted, saying:
"The moulding of an interlocutory injunction must depend upon the circumstances of each case. As Brennan J observed in Jackson v Sterling Industries Ltd [(1987) 162 CLR 612 at 621]:
"A judicial power to make an interlocutory order in the nature of a Mareva injunction may be exercised according to the exigencies of the case and, the schemes which a debtor may devise for divesting himself of assets being legion, novelty of form is no objection to the validity of such an order."
The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked [see Tait v The Queen (1962) 108 CLR 620]. The Federal Court had jurisdiction to make interlocutory orders to prevent frustration of its process in the present proceeding." (emphasis added)
68 It is necessary to ensure that transparency is brought to bear on what is currently being done with those rights and interests, and to protect them from being dissipated in a way that is not under the supervision of the Court. At the moment those rights and interests are not under the control, in a transparent fashion, of the members of the native title claim group themselves because of the bona fide dispute as to its composition and the absence of anyone who is presently capable of acting as the applicant.
69 If one of the two potential claim groups here were able to authorise a replacement applicant who would have full authority to deal with rights, interests and assets that it could access or control because of its status, the process of the Court could be frustrated if at a final determination it found another claim group was actually entitled to those rights, interests and assets. There is uncertainty as to what, if any, agreements, such as ILUAs and the like, have been negotiated and what, if anything, has been done about benefits that may currently flow to persons under those agreements who may or may not be connected to the making of this application. The Court has power to make orders that ensure protection of such assets, rights, and entitlements of the persons ultimately found to possess native title rights and interests in the claim area by reason of their recognition in the Native Title Act and in their common law rights of the indigenous people of this country recognised in Mabo v Queensland [No 2] (1992) 175 CLR 1.
70 However, it is important that the rights of third parties which may be affected by the orders that I propose to make be adequately protected lest they interfered with unintentionally or unjustifiably: Patrick 195 CLR at 41-43 [65]-[66]. For that reason, I expressly reserved the right to any third party affected by the orders to apply to have his, her or its position specifically addressed or remedied.
71 For the reasons above, I made the orders substantially in the form drafted by Counsel for the Binge applicant because they best reflected what I indicated on 28 February 2013 would be necessary. These were intended to protect the interests of persons who may ultimately be entitled in these proceedings. I considered it to be necessary to make that series of orders to protect and, to the extent possible, secure any money or other entitlements that have been obtained by any persons, including the current applicant and members of the native title claim group or their associates, as a consequence of the bringing of these proceedings. Those moneys and entitlements ought be available or accounted for to the persons ultimately found to be entitled to the benefit of a determination of the native title in the proceedings being the claim group.