Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2025] FCA 490

1. The respondents filed a notice of objection to competency under the ADJR Act: Holt at [10]. However, there was no application for summary judgment or for the hearing and determination of a separate question. Rather, the proceeding went to trial, at which affidavit evidence was adduced by each of the parties without any major objections. As Olney J observed (at [11]), the issues for determination by the Court were "not dependent on any contentious question of fact".
2. The objection to competency was ultimately upheld, and the proceeding was dismissed. Referring to the judgment of Mason CJ in Bond, Olney J held that neither the notice decisions nor the expedited procedure decisions involved a reviewable decision under the ADJR Act, nor was amenable to relief under the Judiciary Act: Holt at [26], [28].
3. In relation to the notice decisions, Olney J observed that a failure to give notice in accordance with s 29 of the NTA had "its own remedy", in that the future act would be invalid to the extent that it affected native title: Holt at [20]. In his Honour's view, "[w]hether or not the notices in question have been given in accordance with s 29 does not depend upon any decision, or conduct in relation to a decision, on the part of the first respondent", but rather on the form and content of the notices and the manner which they had been given: ibid. Section 29 imposed a mandatory requirement to give a notice before doing the future act, as a condition of doing that act, such that "[a]ny decision made in relation to that process was made by Parliament" and not the respondents: ibid.
4. The applicant contended that there were two "elements" implicit in the inclusion of the expedited procedure statement in the notices relating to the exploration licences: first, that the Government party "considers" that the act attracts the expedited procedure by satisfying the definition in s 237 of the NTA; and second, that the Government party made a discretionary determination that it should include the expedited procedure statement: Holt at [22]. In particular, the applicant submitted that the text, context and purpose of s 32 of the NTA pointed to "a construction of the section as requiring that the Government party actually give consideration to whether the act is an act attracting the expedited procedure within the terms of s 237", and that "[i]t would be nonsensical if a Government party could include the statement when it did not hold the view that s 237 is satisfied, or when it had not considered that issue": ibid.
5. Justice Olney commenced his consideration of these submissions as follows (at [23]):

At the outset it may be observed that the submission seems to suggest that the inclusion of the expedited procedure statement is made pursuant to s 32 of the Native Title Act. This is clearly erroneous. Section 32 deals with the effect of the inclusion of such a statement. The statutory basis for including a statement that the Government party considers the act is an act attracting the expedited procedure is found in s 29(7); and that subsection must be construed in the context in which it appears.

After noting (at [24]) that s 29(7) was "couched in permissive terms" and "[did] not involve any value judgment being made", Olney J continued (at [25]):

The right to include an expedited procedure statement is not expressed to be conditional. It does not involve the Government party making a reasonable assumption (as in subs (6)) nor does it express a requirement that the Government party has first formed the opinion that the proposed act attracts the expedited procedure as a preliminary step to the inclusion of the statement in a notice. The Government party has the option in every case to include or not include such a statement. The option to include the statement is entirely unfettered. The inclusion of the statement is determinative of nothing. It merely places the onus on the native title parties to consider whether or not to lodge an objection against the inclusion of the statement, a step, if taken, that has the effect of enlivening the function of the arbitral body whose role is to determine whether the act is one which attracts the expedited procedure. The inclusion of the expedited procedure statement in a notice under s 29 does not involve a process of decision making that is in any way determinative, nor does it involve any conduct in relation to a decision to which the [ADJR Act] applies.

1. His Honour proceeded (at [21]) to address the Court's jurisdiction under s 39B of the Judiciary Act, stating that:

The only claim made by the applicant is for review of the decisions identified in the application and no argument has been put to suggest that any different considerations apply to the exercise of the Court's jurisdiction under the Judiciary Act than apply to an application for review under [the ADJR Act].

Accordingly, Olney J concluded that "[i]n the absence of any decision, there can be no review of a decision whatever jurisdictional basis is relied upon".

1. It should also be noted that, prior to the decision in Holt, Carr J had reached a similar conclusion in Cheinmora. In that case, the applicants had brought an appeal from determinations made by the NNTT under s 32(4) of the NTA that the grant of exploration licences were acts attracting the expedited procedure: Cheinmora at 23. The applicants relevantly submitted that it was a condition precedent to the exercise of jurisdiction by the NNTT that the Government party "had given consideration to whether the act is an expedited procedure before making a statement to that effect in the notice given under s 29": Cheinmora at 41. Justice Carr (at 42) contrasted the wording of former s 29(4) (the predecessor to current s 29(7)) with "the mandatory language of s 31(1)" of the NTA, and stated:

A proper construction of s 29(4) does not require, in my opinion, that before the Tribunal may embark upon its inquiry and determination, it be shown that the Government party has directed its mind to the criteria set out in s 237. All that is required is that the Government party includes in its notice a statement that it considers the act is an act attracting the expedited procedure. In those circumstances, the statutory scheme is that if there is no objection from a native title party then the Government party may do the act. If there is an objection then it is for the tribunal to make its predictive assessment and decide whether what is proposed is an act attracting the expedited procedure within the meaning given to that expression by s 237 of the Act. As Mr McIntyre conceded in oral argument, the Tribunal, by carrying out that task in these matters, has effectively "done the job" which, on his submission, it should have been satisfied (as a threshold jurisdictional issue) had been done by the Government party. The duplication involved in such a requirement reinforces my opinion that there should be no such implication read into s 29(4).

1. It is apparent that the grounds sought to be advanced by the applicants in the present case bear a close similarity to the arguments that were considered and rejected by this Court in Holt. Ordinarily, a previous decision by a single Justice should be followed unless it is plainly wrong. Nevertheless, having regard to the present context of an application by the State for summary judgment against the applicants, I have considered the proper construction of s 29(7) of the NTA for myself, and have reached the conclusion that the decision in Holt is correct. The inclusion of an expedited procedure statement in a s 29 notice given by a Government party does not involve a decision that is amenable to judicial review under the ADJR Act or in the exercise of the jurisdiction conferred by s 39B of the Judiciary Act.
2. The question turns on the text of s 29(7), construed in the light of its context and purpose. A convenient restatement of the task of statutory construction is found in DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16 at [23], where Gageler CJ, Gordon, Edelman and Gleeson JJ stated:

The principles of statutory construction are well established. The language which has actually been used in the text, in light of its context and purpose, is the surest guide to legislative intention. One reason that the context and purpose of a provision are important to its proper construction is that an object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. Or, as was explained in [Project Blue Sky Inc at [69] (McHugh, Gummow, Kirby and Hayne JJ)], statutory construction requires deciding what the legal meaning of the relevant provision is "by reference to the language of the instrument viewed as a whole". Further, the purpose of the legislation is not to be derived from any a priori assumption about the desired reach or operation of the relevant provisions.

(Footnotes omitted.)

See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] (French CJ); Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[26] (French CJ and Hayne J).

1. Section 29(7) of the NTA provides that a notice given under s 29 "may" include an expedited procedure statement. On a natural reading of the permissive language used, there is no obligation on the Government party to include, or even to consider including, such a statement in the notice. However, the inclusion of an expedited procedure statement has statutory consequences. While these consequences might be described as procedural in nature, that is not to understate their practical importance in relation to the requirements that must be satisfied in order for the future act validly to affect native title. As discussed above, the mandatory steps required under the "normal negotiation procedure" in s 31(1) are applicable unless the notice includes an expedited procedure statement. The inclusion of such a statement will bring the proposed future act within the "expedited procedure" in accordance with s 32, under which the "normal negotiation procedure" (i.e. the "full" right to negotiate) will only apply if a native title party lodges an objection and the arbitral body determines that the act is not an act attracting the expedited procedure (s 32(5)), or if the Government party withdraws the expedited procedure statement before the arbitral body makes a determination (s 32(7)). As the applicants submitted, the practical effect of the inclusion of a s 29(7) statement is to alter the procedural pathway to validity by "switching the tracks" that the future act must follow from the normal negotiation procedure under s 31 to the expedited procedure under s 32. And if no objection is lodged by a native title party within the four month period, the act is allowed to proceed.
2. Nevertheless, the inclusion of an expedited procedure statement in a s 29 notice does not determine whether or not the act is an "act attracting the expedited procedure". It is not a substantive determination in that sense. The future act may be done without the normal negotiation procedure only if no objection is lodged within the four month period, in which case it is unnecessary to determine whether the act is in fact one attracting the expedited procedure, or if there is a determination by the arbitral body that the act is not an attracting the expedited procedure. The fact that the s 29 notice includes an expedited procedure statement does not reflect a final or operative decision in relation to the nature or character of the future act or whether and how it may be validly done in accordance with the NTA. As Olney J stated in Holt, "[t]he inclusion of the statement is determinative of nothing": at [25]. To the extent that there is any substantive determination whether or not the act is an act attracting the expedited procedure, that determination is made by the arbitral body under s 32(4).
3. Starting with the statutory text, s 29(7) does not expressly condition the inclusion of an expedited procedure statement on any decision being made or any state of satisfaction being formed by the Government party. In my view, it is difficult to read the provision as simply an "economical" way of saying, [i]f the Government party considers the act is an act is an act attracting the expedited procedure, it may include a statement that it so considers in the notices under this section", as the applicants submit. I do not regard the manner in which Lee J paraphrased the operation of s 29 in WA v Ward (at 271) as of assistance in relation to the proper construction of s 29(7) of the NTA. The subject of the language used in s 29(7) is "[t]he notices under this section", and the object of that language is the statement included in the notices. The focus is on the inclusion in the notices of an expedited procedure statement, and it is the inclusion of the statement that is given statutory consequences under Subdiv P, as opposed to any opinion formed by the Government party.
4. This is supported by the statutory context of s 29(7). Each of ss 31(1) and 32(1) operate by reference to whether the s 29 notice includes an expedited procedure statement. Section 32(3) allows a native title party to lodge an objection with the arbitral body "against the inclusion of the statement". Section 32(7) provides that the Government party may withdraw its statement, upon which s 31(1) applies "as if the notice did not include such a statement". These provisions are concerned with the inclusion of a statement in the s 29 notices, and not with the anterior decision by the Government party to include that statement nor the state of mind on which that decision was based. The inclusion of the statement commences a process by which, if an objection is lodged by a native title party, it may be determined whether the act is an act attracting the expedited procedure.
5. Other provisions elsewhere in the NTA refer to the expedited procedure statement without referring to any opinion formed or held by the Government party - for example, s 75 describes an expedited procedure objection application as an "[a]pplication objecting as mentioned in subsection 32(3) against the inclusion of a statement that an act is an act attracting the expedited procedure" (emphasis added). This is consistent with the nature of the proceedings on any such objection application, which are not directed to demonstrating any error in the view formed by the Government party that the act is an act attracting the expedited procedure. Similarly, in setting out the pathways to validity of a future act to which Subdiv P applies, s 28(1)(c) describes s 32(2) as applying "if no objection is made after the giving of notice that the act attracts the expedited procedure" (emphasis added). These provisions do not suggest that any effect is attached by the NTA to the state of mind formed by the Government party in relation to the inclusion of an expedited procedure statement in a s 29 notice.
6. In so far as the applicants sought to find support for their position in s 213A(3)(b) of the NTA, that provision simply permits the grant of assistance by the Attorney-General to a grantee party in relation to the development of agreements which would make it more likely that the Government party would consider that a future act is an act attracting the expedited procedure. This might be said to provide some statutory recognition of the decision-making process that may be engaged in by a Government party when considering whether to give a notice under s 29 that includes an expedited procedure statement. However, it does not itself alter the construction of s 29(7), nor require a conclusion that s 29(7) confers a power or function on the Government party to satisfy itself that the proposed future act is an act attracting the expedited procedure within the meaning of s 237 of the NTA.
7. It may be accepted that s 29(7) refers to a statement that the Government party "considers" that the act is an act attracting the expedited procedure, and not that it "asserts" or "contends" or even "believes" that the act meets that description. However, I consider that this language is relatively neutral on the issue of construction raised in the present case. The critical question is whether the provisions operate on the fact that the notice includes an expedited procedure statement, as opposed to the formation of a state of mind by the Government party, however that state of mind might be described or characterised. The statement of the Government party's view or opinion that the expedited procedure applies is a mechanism by which that question may be raised for determination by the arbitral party, if a native title party joins issue by lodging an objection against the inclusion of the expedited procedure statement.
8. Section 29(7) does not expressly confer any statutory power or discretion on a Government party. Rather, the subsection contemplates that a notice given by the Government party may include a statement which has certain procedural consequences under Subdiv P. It can be accepted that, when the Government party includes an expedited procedure statement in a s 29 notice, it makes a decision of some kind to do so. In Holt, Olney J referred to the Government party's "option" to include the statement: at [25]. In exercising that option, the Government party is taking a step which must involve a decision to include the statement. But in so far as any power is exercised by the Government party in deciding to include an expedited procedure statement in a s 29 notice, it is not a power that is conferred or governed by the NTA. The power may perhaps be sourced in the executive power of the State. It is unnecessary to decide whether the exercise of such power might be reviewable on the grounds of fraud or bad faith or improper purpose, as no such allegation has been raised in the present case. The grounds of review in the originating application are concerned primarily with an alleged failure by the State to give genuine and proper consideration to the definition in s 237 when deciding to give a notice that includes a statement under s 29(7), and are similar to the grounds of review relied upon in Holt.
9. In so far as the inclusion of an expedited procedure statement in a notice given by a Government party initiates a process by which it may be determined whether the act attracts the expedited procedure, an analogy might be drawn with decisions to commence or institute a proceeding before a court or tribunal. As was held in Holzinger, in the context of a challenge to a decision by the Attorney-General not to refer a petition of mercy to the Court of Appeal under s 672A of the Criminal Code 1899 (Qld), a decision to commence litigation before a court is not ordinarily subject to judicial review, on the basis that such a decision does not itself create or extinguish rights or liabilities: at [50] (Sofronoff P, Morrison, Mullins JJA). Similarly, while the inclusion of an expedited procedure statement has procedural consequences under Subdiv P, by allowing a native title party to invoke the jurisdiction of the arbitral body to determine an expedited procedure objection application, the decision to include the statement does not itself determine the substantive issue that remains for determination by the arbitral body. Thus, if the decision of a native title party to lodge an objection under s 32(3) would not be amenable to judicial review, it is difficult to see why the inclusion of an expedited procedure statement in a s 29 notice should be independently reviewable for "error".
10. It may also be noted that a decision by the Government party not to include an expedited procedure statement in a s 29 notice would not be amenable to judicial review (for example, by a grantee party), nor would a decision by the Government party under s 32(7) to withdraw such a statement. While this might simply reflect the absence of any obligation on the Government party to include a statement under s 29(7), irrespective of whether the proposed future act is in fact an act attracting the expedited procedure within the meaning of s 237; it does not bolster the applicants' argument that native title parties should be able to seek judicial review of a decision by the Government party to give a notice that includes an expedited procedure statement. This is even more so in circumstances where Subdiv P explicitly provides an avenue through which a native title party can challenge the inclusion of an expedited procedure statement in a s 29 notice, by lodging an objection with the arbitral body within the four month objection period.
11. In that regard, it seems clear that the arbitral body, here the NNTT, has jurisdiction to determine an expedited procedure objection application irrespective of whether or not there is any "error" in a decision by the Government party that it considers that the act is an act attracting the expedited procedure. In so far as the applicants submitted that the NNTT's jurisdiction depended on the legal "validity" of the Government party's decision to include an expedited procedure statement in the s 29 notice, this would give rise to intolerable uncertainty and would undermine the purposes of Subdiv P. Apart from the principles derived from cases such as Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; 2 ALD 1, the question of the NNTT's jurisdiction in relation to an objection application was determined by Carr J in Cheinmora. An analogous submission was also rejected in a different context in Kemmpi v Adani Mining Pty Ltd (No 2) [2019] FCAFC 117; (2019) 271 FCR 423 at [82] (Rares ACJ and Robertson J, with whom Perry J agreed), in relation to the determination of an objection to the registration of an ILUA following its certification by the representative Aboriginal Torres/Strait Islander body.
12. The applicants in Cheinmora had objected to the jurisdiction of the NNTT on the ground that "it was a condition precedent to the exercise of the tribunal's jurisdiction under s 32 that the government party has given consideration to whether the act is an act attracting the expedited procedure before making a statement to that effect in the notice given under s 29": at 41 (Carr J). On an appeal to this Court from the NNTT's decision, Carr J held (at 42) that it did not need to be shown that the government party had directed its mind to the criteria in s 237 before the NNTT could "embark upon its inquiry and determination" - in other words, the Tribunal's jurisdiction was enlivened by the inclusion of the expedited procedure statement and the objection by a native title party, and did not depend on any decision-making process engaged in by the Government party when including the expedited procedure statement in the s 29 notice, nor on the legal "efficacy" of such a statement. An allegedly "erroneous" s 29(7) statement does not divest the NNTT of jurisdiction, nor prevent the application of s 32 of the NTA if a native title party invokes the jurisdiction of the NNTT by lodging an objection.
13. Accordingly, on their proper construction, ss 29(7), 31 and 32 of the NTA operate on the fact that the notice given by the Government party includes an expedited procedure statement, and not on any anterior consideration or the formation of any opinion by the Government party that the act is an act attracting the expedited procedure within the meaning of s 237 of the NTA.
14. In my view, such a construction is consistent with the purposes of the NTA, including in particular Subdiv P. The applicants emphasised that the right to negotiate was a special measure for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders, and submitted that the expedited procedure was directed to ensuring that this special measure was proportionate to that purpose and consistent with Art 1(4) of the ICERD. However, that does not assist in determining the balance that was ultimately struck by the provisions contained in Subdiv P, including the balance between the statutory objects of providing for the recognition and protection of native title, and establishing ways in which future dealings may proceed and setting standards for those dealings: see NTA, s 3(a) and (b). As Carr J observed in Cheinmora (at 35), the object stated in s 3(a) should not be given precedence over the object in s 3(b), and "[t]he extent of parliament's protective intent should ... be discerned from the language used by parliament rather than any presumption taken from the particular constitutional source" (i.e. as a law enacted under the power conferred by s 51(xxvi) of the Constitution).
15. Subdivision P reflects and gives effect to a choice by the Parliament not to require the "full" right to negotiate where the proposed future act is unlikely to result in interference with the community or social activities carried on by native title holders, or interference with areas or sites of particular significance to native title holders in accordance with their traditions, or major disturbance to the land or waters concerned. In such circumstances, rather than requiring the parties to engage in the normal negotiation procedure under Subdiv P, the Parliament has established an "expedited" process to determine whether or not the proposed future act is of that character. Under this process, native title parties have a right to object to the inclusion of an expedited procedure statement in a s 29 notice, and the arbitral body must ultimately determine whether the proposed future act may be done without the normal negotiation procedure (unless either the objection or the expedited procedure statement is earlier withdrawn). Any objection by a native title party must be lodged within the period of four months after the notification day specified in the s 29 notice.
16. In my view, the legislative intention to establish an "expedited" procedure is not consistent with the insertion of a process by which the Government party is required to make an administrative decision that it considers that the act is an act attracting the expedited procedure, which may then be subject to judicial review on the ground that the Government party has made a legal or jurisdictional error in its consideration or application of the definition contained in s 237. This would give rise to fragmentation, uncertainty and delay that is antithetical to the notion of an expedited process. It would potentially undermine or frustrate the exercise by the NNTT or other arbitral body of its jurisdiction to inquire into and determine any expedited procedure objection applications.
17. The applicants' construction of s 29(7) of the NTA finds no support in the extrinsic material. With the caveat that one cannot substitute such material for the statutory text, the explanatory memoranda for the Native Title Bill 1993 (Cth) and subsequent amending legislation are consistent with an assumption that the provisions operate on the fact of an expedited procedure statement having been included in a s 29 notice, as opposed to any anterior decision made by the Government party as to the application of s 237 of the NTA.
18. Part B of the Explanatory Memorandum to the Native Title Bill 1993 (Cth) (1993 Explanatory Memorandum) contained a flow chart "showing how future acts can be done and how the right to negotiate applies": at pp 13-14. This flow chart distinguished the processes applicable where, on the one hand, the situation where "notice states expedited procedure applies" and, on the other hand, where there was "no statement about expedited procedure": at p 14. The notes to the individual clauses, in relation to what became s 29(4) (the predecessor to current s 29(7)), that "the government intending to do the act may state in the notice given under this clause that it believes the act falls under the expedited procedure set out in clause 31": at p 21. In relation to the clause that became s 32 of the Act, the 1993 Explanatory Memorandum stated that the expedited procedure would operate where "the relevant government includes in its notice a statement that the act is one that attracts the expedited procedure", and either the native title parties do not object or "the relevant arbitral body decides that the criteria in clause 222 are met and the act does attract the expedited procedure": at p 22. The process envisaged by the 1993 Explanatory Memorandum turned on the inclusion in the notice of a statement that the expedited procedure was applicable, as opposed to the underlying state of mind formed or held by the Government party. Similarly, an expedited procedure objection application was described in the 1993 Explanatory Memorandum as "an objection to using the expedited procedure for a future act": at p 39.
19. In 1998, the NTA was substantially amended by the Native Title Amendment Act 1998 (Cth), including the future act regime and a new Subdiv P. The Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) (1997 Explanatory Memorandum) identified the purpose of the amendments to the right to negotiate provisions as being "to streamline the right to negotiate processes so that unnecessary delays are eliminated while maintaining the protection of the legitimate interests of native title holders and claimants": at p 150 [18.11]. The 1997 Explanatory Memorandum later described the expedited procedure as "one way in which the right to negotiate process can be fast-tracked" (at p 174 [20.13]), and stated that "[i]n essence the expedited procedure allows future acts covered by the right to negotiate provisions to be done without negotiations taking place if native title parties do not object, are unsuccessful in their objections or withdraw their objections" (at p 180 [20.34]).
20. In relation to s 29(7), the 1997 Explanatory Memorandum stated that "[a]s under the existing NTA, a notice under section 29 may specify that the Government party thinks the act will attract the expedited procedure": at p 176 [20.24]. Thus, it was contemplated that the Government party could give notice that the expedited procedure applies to a future act (i.e. as an act attracting the expedited procedure) and, if native parties objected to the expedited procedure for that particular act, the arbitral body was required to determine whether the act meets the requirements set out in s 237 of the NTA: 1997 Explanatory Memorandum at p 181 [20.39]. A diagram setting out an overview of the processes under the right to negotiate provisions identified this step in the following terms: "Notice states that expedited procedure applies and statement has not been withdrawn": 1997 Explanatory Memorandum at pp 148-149, diagram 18.1.
21. Nothing in the extrinsic material suggests that s 29(7) confers a separate decision-making power or function on the Government party requiring an application of the criteria set out in s 237 and a decision that the act is an act attracting the expedited procedure before it includes a s 29(7) statement in a notice given under s 29 of the NTA. That is not to suggest that the Government party need not have regard to the terms of s 237 when including an expedited procedure statement in a s 29 notice, nor does it mean that an expedited procedure statement can be included even if the Government party does not consider that the future act is an act attracting the expedited procedure, let alone if it considers that the future act is not such an act within the meaning of s 237. As Lee J noted in WA v Ward at 271, it might be expected that the Government party would only include an expedited procedure statement where there were grounds for considering that the act was one attracting the expedited procedure. There may nevertheless be practical limits on the information available to the Government party when giving the notice. The inclusion by the Government party of an expedited procedure statement cannot be equated with the evaluative and predictive exercise performed by the arbitral body in applying s 237 of the NTA. The critical point is that the applicable provisions in Subdiv P operate on the fact that an expedited procedure statement is included in a s 29 notice, and the decision by the Government party to include such a statement in the notice does not involve the exercise of a power or the performance of a function under the NTA, nor does that decision comprise a discrete step in the right to negotiate under Subdiv P.
22. The inclusion of an expedited procedure statement in a s 29 notice commences or triggers a process. Under that process, a native title party is given an opportunity to object against the inclusion of the statement and, unless the objection is otherwise resolved, the arbitral body will ultimately determine whether or not the act in question is an act attracting the expedited process. The decision by the Government party to include an expedited procedure statement lacks "the character or quality of finality" in the nature of a determination resolving a substantive issue, and is therefore not a "decision" for the purposes of the ADJR Act: Bond at 336 (Mason CJ). The inclusion of an expedited statement might even be described as a procedural step or formality, rather than a substantive determination that confers, alters or affects legal rights or obligations: cf., in relation to a decision to give a notice prior to bringing proceedings to recover a penalty under the Income Tax Assessment Act 1936 (Cth), Guss v Deputy Commissioner of Taxation [2006] FCAFC 88; (2006) 152 FCR 88 at [22], [35], [38]-[43] (Edmonds J), but cf. at [5], [11], [17] (Gyles J), [68]-[69], [75], [82] (Greenwood J). Every case will depend on the particular statutory framework in which the alleged decisions are made.
23. Nor can the Government party's decision to include an expedited statement be regarded as an essential preliminary or a condition precedent to the making of an ultimate decision that will affect legal rights and interests: cf. Bond at 339, 340 (Mason CJ), 377 (Toohey and Gaudron JJ); see also Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149 at 159-160, 165, 170 (Brennan CJ, Gaudron and Gummow JJ). In determining an expedition procedure objection determination, the arbitral body is not required to have regard to any decision of the Government party, nor the reasons why the Government party considered that the act meets the criteria set out in s 237 of the NTA.
24. I do not consider that this conclusion is affected by the decision in Tang, which was primarily concerned with the question whether a decision was made "under an enactment", in the sense that the decision is required or authorised by a statute and affects legal rights or obligations by virtue of statute. In the present case, the decision by a Government party to include an expedited procedure statement in a s 29 notice is neither required nor authorised by the NTA. Rather, the relevant provisions treat the inclusion and existence of an expedited procedure statement in a s 29 notice as a factum upon which the processes in Subdiv P operate.
25. While the applicants also rely on the jurisdiction conferred by s 39B of the Judiciary Act, I do not consider that this overcomes the essential difficulties set out above: cf. Holt at [28] (Olney J). The grant of certiorari is directed at removing the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has a discernible or apparent legal effect on rights: see Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 at [28] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). For the reasons set out above, the inclusion of an expedited procedure statement in a s 29 notice does not have any discernible or apparent legal effect on the rights of native title parties that is capable of being quashed or removed by an order in the nature of certiorari. Declaratory relief is not available because s 29(7) is not conditioned on a valid decision by the Government party that it considers that the act is an act attracting the expedited procedure on a correct understanding of the law and based on some material. Rather, ss 29(7), 31 and 32 operate on the fact that the notice given under s 29 includes an expedited procedure statement. Accordingly, no question arises whether or not the inclusion of the expedited procedure statement in a particular notice is in breach of the NTA and unlawful: cf. Project Blue Sky at [100] (McHugh, Gummow, Kirby and Hayne JJ).
26. Moreover, it is doubtful that the Court could make a declaration that the expedited procedure statements in the relevant notices have "no lawful effect", such that the s 29 notices could be treated as if they did not include such a statement. As the State submits, a declaration that s 31(1) of the NTA applies to a future act can only be made if that is in accordance with the provisions of the NTA. Under Subdiv P, s 31(1) only applies if the notice given under s 29 does not include an expedited procedure statement, or if the statement is withdrawn by the Government party under s 32(7), or if the arbitral body determines that the act is not an act attracting the expedited procedure. Further, even if it were possible to "invalidate" the expedited procedure statement as a result of some legal or jurisdictional error in the anterior decision by the Government party to include the statement in the s 29 notice, this would give rise to questions whether the invalid s 29(7) statement could be severed from the giving of notice under s 29(1).

1. The relief claimed by the KLC in the originating application included a declaration that the alleged 2022 Policy is "inconsistent with the requirements of the [NTA] concerning the inclusion of a statement under s 29(7) of the [NTA]". The declaratory relief is directed to the implementation and application of the 2022 Policy from 1 June 2022, including in making the alleged decisions to include an expedited procedure statement in the Malarngowem notice and the Yanunijarra and Walalakoo notices, as well as "other decisions purportedly made from time to time pursuant to s 29(7) f the [NTA] from 1 June 2022".
2. I note that the proposed amended originating application expands the relief sought by YAC, WAC and MAC to include an additional declaration that the 2022 Policy, as implemented and applied in the respective decisions to include an expedited procedure statement in the relevant s 29 notices, was inconsistent with the requirements of s 29(7) of the NTA.
3. As set out above, I am not satisfied that the applicants have no reasonable prospect of successfully proving the existence of the alleged 2022 Policy, and its application in making decisions under s 29(7) of the NTA including in relation to the Malarngowem notice, the Yanunijarra and Walalakoo notices and the Second Yanunijarra notices.
4. However, for the reasons set out above, I have not accepted the applicants' submissions regarding the construction of s 29(7) and other relevant provisions in Subdiv P. Accordingly, on the proper construction of those provisions, the NTA does not impose the requirements that the applicants allege are inconsistent with the 2022 Policy. In other words, the foundation on which the applicants base their claims regarding the inconsistency of the 2022 Policy with the NTA cannot be made out.
5. Further, and perhaps more importantly, the conclusion reached above that the alleged decisions by the State to include an expedited procedure statement in the s 29 notices are not amenable to judicial review under the ADJR Act or the Judiciary Act precludes or renders inutile any declaratory relief in relation to the implementation or application of the 2022 Policy in making those decisions.
6. It can be readily accepted that a policy adopted by an administrative decision-maker must not be inconsistent with the statute under which the relevant decision is made. This may provide a ground on which to challenge an administrative decision that is made in the application of any such policy. Further, where the policy is contained in an instrument or direction that is made or given pursuant to a power conferred by statute, it might be possible to challenge the validity of the instrument or direction as exceeding the limits of the relevant statutory power on the ground of inconsistency with the governing statute.
7. However, where the alleged policy does not have statutory force, it is more difficult to see how such an administrative policy can itself be reviewable in the abstract, divorced from its application in the context of a particular administrative decision that affects rights or interests. Judicial review of a particular decision might provide a vehicle to consider whether a policy that was applied in making that decision is consistent with the legal requirements governing the exercise of the administrative power. The question is not necessarily the validity of the policy, but the legality of the decision that was made pursuant to that policy. Unless and until the policy is applied, there is unlikely to be any matter or controversy that is capable of being the subject of declaratory relief.
8. In the present case, the alleged 2022 Policy is not required or authorised by or under the NTA. The question whether the 2022 Policy is consistent with the requirements of Subdiv P does not itself give rise to a matter arising under the NTA: cf. s 213(2); see also Judiciary Act, s 39B(1)(c). In so far as the 2022 Policy may have been followed or applied by the Government party in making decisions to give notices under s 29 that include an expedited procedure statement, those decisions are not reviewable under the ADJR Act or the Judiciary Act.

Conclusion - no reasonable prospect of success

1. Accordingly, I am satisfied that the applicants have no reasonable prospect of successfully prosecuting the proceeding within the meaning of s 31A(2) of the FCA Act. The interlocutory application by the State is therefore granted, and judgment must be given for the State against the applicants in relation to the whole of the proceeding, which will be dismissed.

1. Under r 26.01(d) of the Rules, a party may apply for an order that judgment be given against another party because the proceeding is an abuse of process of the Court.
2. The State submitted that the proceeding was an abuse of process on the basis that the first to third applicants had made a "forensic decision" to lodge objections with the NNTT against the inclusion of the expedited procedure statement in the Malarngowem notice and the Yanunijarra and Walalakoo notices. The jurisdiction of the NNTT having been enlivened, the NNTT is able to deal with the substantive issue whether each of the identified acts is an act attracting the expedited procedure. Indeed, the State submitted that the NNTT is under a duty to determine the applicants' objections, if they are not withdrawn. The State also argued that the proceeding is unfairly oppressive and would bring the administration of justice into disrepute if it were allowed to proceed, relying on their arguments about the construction of the relevant provisions in Subdiv P and the evidence that had been adduced as to the State's process concerning the inclusion of expedited procedure statements in notices given under s 29 of the NTA.
3. As Kiefel CJ, Bell and Keane JJ stated in UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77, the circumstances in which the use of the Court's processes will amount to an abuse "do not lend themselves to exhaustive statement": at [1]. They include cases where "the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute": ibid.; see also Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 at [25] (French CJ, Bell, Gageler and Keane JJ). In Walton v Gardiner (1993) 177 CLR 378 at 392-393, Mason CJ, Deane and Dawson JJ stated that "[t]he inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness". Their Honours gave examples of proceedings that "can be clearly seen to be foredoomed to fail", proceedings in relation to which the court is "a clearly inappropriate forum", or proceedings whose "continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings": ibid. It may also include cases involving unreasonable or unjustifiable delay, or proceedings that are instituted for an improper purpose: see e.g. Walton at 410-411 (Brennan J).
4. The question whether a proceeding is an abuse of process requires an evaluation of all of the circumstances of the particular case. The power rests upon public interest considerations including "preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes" and "the necessity of maintaining confidence in, and respect for, the authority of the courts": Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [69]-[70] (French J).
5. In the light of my conclusion above that the proceeding should be dismissed under s 31A(2) of the FCA Act, it is strictly unnecessary for me to determine the State's application for judgment against the applicants under r 26.01(d) of the Rules. Nevertheless, if it were otherwise established that the applicants had a reasonable prospect of success in the proceeding, I would not have been satisfied that the commencement or continuation of the proceeding was an abuse of the process of the Court.
6. The applicants lodged their objections with the NNTT largely for protective purposes, under protest as to the NNTT's jurisdiction, in circumstances where s 32(3) of the NTA requires any objection to be lodged within the period of four months after the notification day. Although I do not accept the applicants' submission that the jurisdiction of the NNTT is conditioned on the legal validity or efficacy of the expedited procedure statement included in the notices under s 29(7) of the NTA, I am not satisfied that the applicants are attempting to litigate the issues raised by this proceeding in a different forum nor to pursue inconsistent avenues to contest the inclusion of the expedited procedure statement. The applicants sought the adjournment of their objections before the NNTT pending the outcome of this proceeding. While the availability of an alternative means of challenging the inclusion of the expedited procedure statements under Subdiv P might be relevant to the exercise of the Court's discretion to grant the relief sought in this proceeding, I do not consider that the claims raised by the applicants in this proceeding are vexatious or oppressive or would otherwise bring the administration of justice into disrepute.
7. Further, I note that the proposed amendment to the originating application would include a claim in relation to the inclusion of an expedited procedure statement in a s 29 notice in circumstances where the first applicant failed to lodge an objection within the four-month period. Accordingly, these proceedings would be the only means by which the first applicant can agitate its challenge to the legal efficacy of the expedited procedure statement in order to displace the operation of s 32(2) of the NTA.
8. On the other hand, there no longer appears to be a live issue in relation to the proposed grant of exploration licence E04/2725, which was the subject of the Yanunijarra and Walalakoo notices, in circumstances where Swiim Holdings as the grantee party has since withdrawn its tenement application and the expedited procedure objection application has now been finalised by the NNTT. This might have warranted the dismissal of that part of the proceeding on the grounds that it had become moot and no longer raised any live controversy between the parties. There would nevertheless have remained live issues concerning the Malarngowem notice and, subject to the grant of leave to amend the originating application, the second Yanunijarra notices.

1. The outcome on the State's application for summary judgment renders it unnecessary to determine the application made by the applicants for leave to amend the originating application and concise statement. However, if it had been necessary to do so, I would have been inclined to exercise the discretion to grant leave to amend.
2. The principal claim sought to be added by the proposed amendment concerned the relief sought by YAC arising from the inclusion of an expedited procedure statement in the s 29 notice for the proposed grant of exploration licence E80/5931 to Uro Western.
3. The applicants relied on evidence concerning the significance to the native title holders of the area covered by the exploration licence, which overlaps or is proximate to sites registered under the Aboriginal Heritage Act as well as an Aboriginal reserve and an Indigenous Protected Area. There was also evidence about the circumstances in which YAC had failed to lodge an objection in response to the second Yanunijarra notices. The objection period coincided with the recent resignation of Mr Murray as the full-time CEO of YAC, and his replacement by Mr Tromp as Acting General Manager. Each of Mr Murray and Mr Tromp gave evidence about their lack of awareness of the second Yanunijarra notices until after the expiry of the objection period, as well as the arrangements and practices in relation to the receipt by YAC of correspondence and communications both by mail and by email. It is unnecessary to make detailed findings on this evidence. It is common ground between the parties that the second Yanunijarra notices were in fact sent to and received by YAC, and that Mr Murray signed for the receipt of the notices which were sent by registered post.
4. The State relied on the evidence of Mr Weidemann, a tenement adviser who was retained by Uro Western as the grantee party for E80/5931. Mr Weidemann relevantly stated that he had checked the tenement register and confirmed that no objections had been lodged against the expedited procedure statement, upon which he had formed the belief that the application for the exploration licence would proceed to grant. He said that he had advised a director of the parent company of Uro Western, Mr Justin Orr, accordingly. On 2 April 2024, Mr Weidemann was informed by the State Solicitor's Office that YAC were seeking to include E80/5931 in this proceeding, and that the State had agreed to provide the KLC with at least five business days' notice prior to any grant of that exploration licence. Mr Weidemann deposed that, if E80/5931 was not granted imminently, Uro Western and its parent corporation would suffer prejudice in relation to its staffing and contractor arrangements, as well as in obtaining project funding.
5. Under rr 8.21 and 16.53 of the Rules, the Court has power to grant leave to amend an originating application or a pleading, including to add or substitute a new claim for relief arising out of the same, or substantially the same, facts as those already pleaded, or facts or matters that have occurred or arisen since the start of the proceeding. The grant of leave to amend is discretionary, and the power must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions in s 37M of the FCA Act. This includes the objectives of the just and timely determination of all proceedings before the Court, and the efficient use of judicial and administrative resources.
6. While I accept that the amendment would give rise to some prejudice to Uro Western, I consider that, on balance, it would be appropriate to grant the application for leave to amend the originating application and concise statement to include claims in relation to E80/5931. Although YAC was given notice of the proposed act under s 29 of the NTA and failed to lodge an objection within the four month period, it promptly took steps to agitate its claims in this proceeding. If those claims were accepted, the expedited procedure under s 32 of the NTA would not apply to the grant of E80/5931. Further, even if leave to amend were to be refused, YAC would have been entitled to commence a separate proceeding in which similar relief is claimed in relation to the proposed grant of E80/5931. It is more efficient for these claims to be brought in the present proceeding, together with the overlapping claims made in relation to the Malarngowem notice and the alleged 2022 Policy. This would also allow the issues raised by the applicants to be considered in a slightly different factual context, in which no objection was lodged against the expedited procedure statement nor are there extant proceedings before the NNTT in which the substantive issue can be determined whether the act is an act attracting the expedited procedure.
7. For these reasons, I would have granted the application for leave to amend.

1. Finally, it is necessary to deal with the costs of the proceeding.
2. Except where otherwise provided, the award of costs is in the discretion of the Court: FCA Act, s 43(2).
3. Where it applies, s 85A of the NTA provides that each party to a proceeding must bear his or her own costs unless the Court orders otherwise, including where the Court is satisfied that any unreasonable act or omission of a party has caused another party to incur costs in connection with the institution or conduct of the proceeding. A provision such as s 85A operates to remove any expectation that costs will usually follow the event unless some "cause" is shown for a different order: see Akiba v Queensland [2010] FCA 321; (2010) 184 FCR 406 at [61] (Greenwood J); Cheedy v Western Australia (No 2) [2011] FCAFC 163; (2011) 199 FCR 23 at [9] (North, Mansfield and Gilmour JJ).
4. Section 85A is contained in Pt 4 of the NTA, the provisions of which apply "in proceedings in relation to applications filed in the Federal Court that relate to native title": NTA, s 80. This covers applications for determinations of native title or for compensation, as well as appeals from first instance decisions in such matters: Cheedy at [10]-[11], [35]-[38] (North, Mansfield and Gilmour JJ). It might arguably also cover some other applications made under the NTA, such as an appeal from a determination of the NNTT in a right to negotiation application: Cheedy at [37]; cf. Lardil Peoples v Queensland [2001] FCA 414; (2001) 108 FCR 453 at [156] (Dowsett J); O'Mara v Minister for Lands [2008] FCA 51; (2008) 167 FCR 145 at [34] (Reeves J); Corunna v South West Aboriginal Land and Sea Council (No 2) [2015] FCA 630; (2015) 235 FCR 53 at [44]-[49] (Barker J).
5. More generally, the terms of s 85A can have a wider indirect effect in matters arising under or involving the interpretation of the NTA, as the Full Court noted in Cheedy at [12]:

In proceedings which are not "proceedings" under the [NTA] but nevertheless concern matters arising under the [NTA] and its interpretation, s 85A is relevant to the way in which the Court exercises its costs discretion but does not directly apply: Murray v Registrar, National Native Title Tribunal [2003] FCAFC 220; (2003) 132 FCR 402 ...

Accordingly, where the central issues in a proceeding concern the interpretation of important provisions of the NTA, the Court can take into account the legislative intention of the NTA and, where appropriate, "'follow the spirit' of s 85A(1)": Cheedy at [13].

1. It was common ground that s 85A of the NTA is not directly applicable to the present proceeding. Nevertheless, given that the subject matter of the proceeding concerns the proper interpretation of Subdiv P of the NTA and the legal effect of notices given under s 29 in relation to proposed future acts, I consider that it is appropriate to take into account the policy underlying s 85A when making orders in relation to costs. It is also relevant more generally to take into account the reasonableness of the applicant in bringing the application, and the general importance both of the clarification of the law for the State as a public authority, and of securing proper compliance with the law: Duncan v Chief Executive Offıcer Centrelink (No 2) [2008] FCA 667 at [4] (Finn J); see also Fesl v Delegate of the Native Title Registrar (No 2) [2008] FCA 1479; (2008) 173 FCR 176 at [22]-[26] (Logan J); Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams (No 2) [2018] FCA 2058 at [21]-[29] (Barker J).
2. Having regard to all relevant circumstances, including the legislative intention reflected in s 85A of the NTA, I consider that the parties should bear their own costs of the proceeding, including the State's application for summary judgment. While the State has been successful in seeking judgment against the applicants, there has been no unreasonable conduct on the part of the applicants in either bringing or maintaining the proceeding to date. Further, there is a public interest in clarifying the meaning and application of the relevant provisions in Subdiv P of the NTA, and the question of whether and to what extent decisions by the Government party to include an expedited procedure statement in a s 29 notice are amenable to judicial review. I have also taken into account the matters addressed in the evidence relied upon by the applicants in support of their application for a maximum costs order. In all the circumstances, the appropriate order is that each party should bear its own costs.

1. It remains only to deal with the applicants' interlocutory application for an order capping the maximum party/party costs that may be recovered for the proceeding to $100,000.
2. Rule 40.51(1) of the Rules specifically provides that a party may apply for an order specifying the maximum costs as between party and party that may be recovered for the proceeding, other than costs that a party is ordered to pay in certain circumstances such as failure to comply with (or an extension of time for complying with) an order or the Rules, the grant of leave to amend pleadings or particulars, or a failure to conduct the proceeding in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible.
3. The power conferred by r 40.51 is broadly concerned with "access to justice, public interest, and a desire to limit the costs of all parties, particularly in less complex and shorter cases": McKay Super Solutions Pty Ltd (Trustee) v Bellamy's Australia Ltd (No 2) [2019] FCA 215; 135 ACSR 278 at [71] (Beach J). In exercising the discretion to make a maximum costs order under r 40.51, the Court may have regard to a range of factors, including the timing of the application, the complexity of the factual or legal issues raised, the strength of the claims, the undesirability of forcing an applicant to abandon the proceeding, whether the case involves a public interest element, the amount of costs likely to be incurred, and whether any opposing party has been uncooperative or has delayed the proceedings: see generally Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 at [6]-[13] (Bennett J); Houston v New South Wales [2020] FCA 502 at [17]-[20] (Griffiths J).
4. In support of their application for a maximum costs order in the present case, the applicants relied on evidence about the nature and functions of the KLC as the representative Aboriginal/Torres Strait Islander body for the Kimberley region, including the sources of its funding and the constraints on its resources. The KLC has indemnified the first to third applicants against any adverse costs orders, and those applicants would not have been able to commence the proceeding without such an indemnity. Ms Toohey gave evidence about the consequences for the KLC if the applicants were ordered to pay the State's costs in the proceeding, including the potential impacts on the KLC's other functions and activities in relation to the representation and protection of the rights and interests of native title holders. The applicants submitted (among other things) that the proceeding concerned matters of public interest, and that the proposed amount of $100,000 was reasonable in all the circumstances. In this regard, the proposed cap on costs recoverable by the parties would equally apply to the applicants in the event that a costs order in the proceeding were ultimately to be made in their favour.
5. Given the outcome of the State's application for summary judgment and the disposition on costs as set out above, it is unnecessary to determine the application for a maximum costs order. In my view, it is not appropriate to form a view on this application on a hypothetical basis in which summary judgment had not been given. Accordingly, I do not propose to make any order on this aspect of the applicants' interlocutory application.

1. For the reasons set out above, judgment is given for the State against the applicants in relation to the whole of the proceeding. It follows that the proceeding should be dismissed, with no orders as to costs.

I certify that the preceding one hundred and ninety-five (195) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan.