Consideration
34 An application for a determination under s 225, when filed, seeks an order from the Court that declares that persons hold a currently existing congeries of native title rights and interests. That congeries of rights and interests is the subject matter of proceedings for relief under s 225. The fact, pursuant to an ILUA under s 24EB(1) and (2), that such a congeries, or components within it, can be dealt with, or indeed that some or all native title rights and interests can be extinguished indicates that speedy rather than protracted resolution of s 225 matters by the Court is a vital part of its jurisdiction and the use of its processes in the exercise of the jurisdiction conferred by s 213(2).
35 The importance of the Court resolving matters under s 225 timeously is reinforced by the effect of s 199C(1)(b). That provision requires the Registrar to remove the details of an ILUA from the ILUA Register if any holder of native title that the Court determines under s 225 was not a person who authorised the ILUA. That is, the Parliament intended that the true owners' rights, when determined under s 225, would immediately supervene over those of mere claimants of those rights who were permitted to exercise them by procedures in Subdiv C of Div 3 of Pt 2 while the title remained in doubt. Therefore, the Act recognises in s 199C(1) an immediate relationship between a determination under s 225(a) of who the persons holding native title are and the rights of parties to an ILUA over the lands and waters the subject of that determination to continue to be entitled to the benefits of the ILUA.
36 The scheme of the Act does not create an exhaustive code of exclusive remedies such as would preclude the ordinary exercise of the Court's jurisdiction under s 23 of the Federal Court Act: Cardile 198 CLR at 396 [33]. Nor does the fact that a determination under s 225 of the Act is the final relief sought in these proceedings preclude the making of the 15 March orders or orders of that kind so as to protect the status quo while, at least, the applicant on the Court's record is unable to give its solicitors instructions or progress the proceedings. The submissions of the Mandandanji Companies, Queensland and the Commonwealth ignored the significance of the fact that the rights and interests in s 225(b) claimed when an application is filed in the Court are the subject matter of the proceedings. While the Act allows those rights and interests to be eroded in certain circumstances (such as are provided in Subdiv C of Div 3 of Pt 2) the Court must have jurisdiction to preserve those rights and interests, or the benefits that others have gained from their use, for those who were truly the persons who it determines owned them.
37 The 15 March orders do not, and are not intended to, interfere with the ordinary, operations of the Mandandanji Companies which have commercially and charitably appropriate purposes. Any practical or unintended difficulties which the current form of the orders has on those companies was not the subject of argument which was confined to the Court's powers. Indeed, any such matters should be capable of being resolved at the mediation when it resumes, and by the Court if that does not occur.
38 As I found in my principal reasons, at present there is no longer an applicant authorised by the claim group able to take steps in or prosecute the existing application or deal with matters in relation to it: Weribone [2013] FCA 225 [55]. There is no certainty how long that situation will continue, or, given the presently indeterminate anthropological evidence, whether any replacement applicant will succeed in obtaining a determination of native title under s 225. The impasse has already delayed any progress in these proceedings since late 2011 when the competing s 66B applications were filed and awaited resolution.
39 There is a real potential for prejudice to be done to the true holders of native title by delay or uncertainty in the period before the Court can make a determination under s 225. Native title rights and interests can be exploited, dissipated and extinguished by acts that are deemed valid by s 24EB(2). Persons who, by their status of applicant or claimants of native title, may make an ILUA but later be found to have had no, or no sufficient, rights or interests in the affected lands and waters. The process of the Court must be used in a way that, so far as is reasonable and appropriate, will guard against intervening erosion of a true native title holder's rights and interests that can occur because third parties have intermediate rights to deal with those rights and interests in the period before a determination under s 225 can be made. A native title holder has limited rights to claim pecuniary compensation in respect of the earlier use by others, under ILUAs or s 31 agreements, of his or her rights and interests lands and waters by persons who are later found by the Court not to have been, in fact, holders of that title.
40 Lawful activities including extinguishment of native title, destruction of sites of cultural heritage or significant native title holders or exploitation of mineral rights can affect permanently lands and waters that become the subject of a determination under s 225 can occur as a result of any delay in making that determination. That delay has the capacity to prejudice the proper administration of justice, as well as keeping whoever, if anyone, is entitled to a determination under s 225 from enjoying the benefits of that outcome. The 15 March orders protect the integrity of this Court's processes and the entitlements of the persons whose actual rights and interests in the determination area that will be determined under s 225(b) to enjoy them as they would but for the delay and possible interposition of persons who do not have those: CSR 189 CLR at 391; cf Aon 239 CLR at 217-218 [112]-[115].
41 The nature of a determination of native title under s 225 involves the ascertainment and precise identification, as required by s 94A, of, among other matters, who the actual native title holders are, the nature and extent of their native title rights and interests, as well as any other interests, in relation to the determination area (s 225(a), (b) and (c)). If the Court finds under s 225(a) that any of the members of the applicant in the proceeding or the claim group are not the only persons holding native title, then, if an ILUA affecting any part of the determination area was authorised by a person who is not included in the native title holders identified under that determination, s 199C(1) requires the Registrar to remove the details of that ILUA from the ILUA Register. That removal will have the effect that any acts subsequently done pursuant to that ILUA will not have the protection or validity conferred on future acts in s 24EB. Similarly, s 190C(4) requires the Registrar to amend the Register of Native Title Claims to reflect the outcome of any determination under s 225.
42 One critical incident of a native title right or interest in particular land or waters determined under s 225(b) is that its holders are entitled to the immediate enjoyment of that right or interest to its full extent identified in that determination often to the exclusion of any other person. The right or interest may be to the exclusive possession of land or waters or it may be more limited, so that it is enjoyed subject to non-native title interests determined under s 225(c). Those same rights and interests can also be the subject matter of ILUAs and s 31 agreements.
43 The authority conferred by the Act on an applicant or native title claimants to negotiate ILUAs and s 31 agreements under which such persons can obtain substantial benefits is conditioned to some degree by ss 24CG(3), s 203BE(5) and 251A. Those provisions are intended to encourage the inclusion of all potential, native title holders in the making of ILUAs and s 31 agreements. The Parliament selected the representative body in the area concerned and the process of authorisation under s 251A as a means of seeking to bring about such inclusiveness. Thus, the representative body either must certify an ILUA (s 24CG(3)(a)) or state that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to the land or waters covered by it have been identified (s 24CG(3)(b)(i)).
44 ILUAs and s 31 agreements are matters that have their foundations in the Act. Each of ss 24CG(3), 29(3) (which requires, unless there is a registered native title body corporate, a Government party to give notice to the public concerning future acts proposed as the subject of negotiations for agreements to be made under ss 31 or 32) and 203BE(5) contemplate that persons may hold native title (or other interests) who have not been included directly in the negotiation process for ILUAs and s 31 agreements. Significantly, s 24CG(3) and 203BE(5) contemplate that all reasonable efforts should be made to ensure that all persons who may and actually hold native title in relation to land or waters proposed to be affected have, first, been identified and, secondly, authorised the making of the ILUA under s 251A. Those sections recognise the substantial power given by the Act to persons negotiating ILUAs on behalf of all persons who may or actually hold native title. In my opinion, for the reasons I gave in Weribone [2012] FCA 225 at [60]-[62] that power is a fiduciary power that must be exercised in the interests of and for the benefit of that wide class. The power has the potential to benefit persons who make claims for native title that ultimately fail. Indeed, the terms of s 251A suggest that the only persons who can validly authorise an ILUA are the actual native title holders. It may be that when s 251A is read with ss 24CG(3)(b) and 203BE(5), the scheme in Subdiv C of Div 3 of Pt 2 and the Act as a whole, authorisation by all the persons who, the representative body is satisfied, hold or may hold native title would appear to be sufficient. However, this issue was not argued and need not be decided on the present application.
45 It can hardly have been the intention of the Parliament that persons who were simply claimants be able to use their mere and contestable status to enrich themselves to a substantive and permanent extent at the expense of the true native title holders. Such a construction would be in the teeth of the object and purpose of the Act in ss 3 and 4(1). It would defeat the important consideration which the Parliament recognised in the following paragraph in the Preamble to the Act:
"It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done." (emphasis added)
46 A trustee is entitled to be indemnified and exonerated out of the trust assets, and to that extent has a beneficial interest in it: Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 at 246-247 [48]-[51] per Gleeson CJ, Toohey, Gaudron, McHugh and Gummow JJ. Although the role of an applicant or claimant who negotiates an ILUA or s 31 agreement is not that of a trustee for a reward, it involves the duty to act on behalf of not only the claim group which that party represents but also all the persons who hold native title. It may be that, in the final result, that party will be found not to hold any native title. The Act contemplates that the party's work involved in the negotiation, and the potential compromise of rights or interests that the party claimed in good faith cannot be left uncompensated. Thus, subject to observing the fiduciary duties the party owes to the true native title holders, it is entitled to bargain for and obtain an appropriate and reasonable benefit in all the circumstances which can be enjoyed pending the result of the final hearing.
47 Claimants for native title have rights and powers under Div 3 of Pt 2 of the Act to negotiate some reasonable and proportionate benefit for themselves as a stopgap until the identity of the actual holders of native title is determined by the Court. Those rights and powers must not be used by those claimants in a way that ignores or defeats the rights and interests of the true native title holders. The right to enjoy monies payable to or at the direction of the applicant or native title claimant who negotiated an ILUA or s 31 agreement derives from that person's use of his, her or its status and duty to act on behalf of the true native title holder authorised by the Act. An incident of that status also confers rights to negotiate for cultural heritage agreements under the Aboriginal Cultural Heritage Act 2003 (Qld) (the ACH Act): see Weribone [2013] FCA 225 at [59].
48 It is essential, as the Parliament envisaged in creating the scheme enacted in Div 3 of Pt 2, that third parties be able to deal with someone who has power to enter into binding agreements in respect of lands and waters over which an undetermined claim for native title exists. However, the requirements of ss 24CG(3) and 203BE(5) that all reasonable efforts be made to include the true native title holders in the authorisation process and the deeming effected by s 24EB(2) that all persons who are or may be holders are bound by an ILUA whilever it remains on the ILUA Register, indicate that the legislative intention that an ILUA is primarily for the benefit of the true holders. Likewise, the requirement in s 251A that only all native title holders (rather than claimants) can authorise an ILUA on a final basis provides a further indication of that legislative intention.
49 Queensland and the Commonwealth argued that such a construction would stultify the utility of ILUAs and s 31 agreements because persons with claims to native title would be discouraged from negotiating if they had to advert to the interests of all persons who, in fact, held native title. In my opinion, that is not likely to occur, but if it did occur in particular cases there will be a keen incentive on all persons interested in establishing that they have native title for a prompt determination by the Court of the issue of who in fact holds the native title over the relevant lands and waters. There is no good reason why any bona fide claimants for native title would not ensure that an ILUA made provision for the actual holders of that title to receive the substantial benefits to be derived from the agreement, while making appropriate, but reasonable, provision for what is to be paid or payable in the interim.
50 The status of being an applicant or claimant, and the rights to negotiate such agreements as ILUAs, s 31 and cultural heritage agreements, are not, and should not be used, by the holder of that status as if he, she or they were absolutely entitled to the rights and interests claimed. Such persons were not intended to receive benefits of the kind that ought properly be enjoyed by the true owners. On the other hand, a person making a bona fide claim is entitled under the scheme of Div 3 of Pt 2 of the Act to include provisions in an ILUA entitling him, her or them to receive some benefit for negotiating and agreeing, on behalf of all persons who both claim (bona fide), and actually hold, native title rights and interests in the land and waters concerned. Without being exhaustive, such provisions could include reasonable and appropriate recompense for identification of lands or waters that had significance for the claim group or others who might hold native title rights and interests in them. They could also include provisions to pay money to charitable trusts to be held and used for the benefit of the holders of the native title rights and interests affected.
51 Powers of this kind must not be used for purposes beyond their scope, as Williams ACJ, Fullagar and Kitto JJ explained in Ngurli Ltd v McCann (1953) 90 CLR 425 at 438. Although their Honours were considering the powers of shareholders and directors, the following passage is of general application to powers of the kind conferred in the Act on persons such as applicants or claimants for native title:
"But the powers conferred on shareholders in general meeting and on directors by the articles of association of companies can be exceeded although there is a literal compliance with their terms. These powers must not be used for an ulterior purpose. "The term fraud in connection with frauds on a power does not necessarily denote any conduct on the part of the appointor amounting to fraud in the common law meaning of the term or any conduct which could be properly termed dishonest or immoral. It merely means that the power has been exercised for a purpose, or with an intention, beyond the scope of or not justified by the instrument creating the power", per Lord Parker in Vatcher v Paull [[1915] AC 372, at 378]. "The Court will not allow him" (that is the appointor) "to interpret the donor's intention in any other sense than the Court itself holds to be the true construction of the instrument creating the power; and a literal execution of the power, with a purpose which it does not sanction, is regarded as a fraud on the power", per Hatherley L.C. in Topham v Duke of Portland [(1869) 5 Ch App 40, at 59]. Voting powers conferred on shareholders and powers conferred on directors by the articles of association of companies must be used bona fide for the benefit of the company as a whole." (emphasis added)