FEDERAL COURT OF AUSTRALIA

Murray v Registrar of the National Native Title Tribunal [2003] FCAFC 220

NATIVE TITLE – Subdivision C of Division 3, Part 2 of the Native Title Act  1993 (Cth) Indigenous Land Use Agreement – construction of s 24CD of Subdivision C of the Native Title Act – whether s 24CD requires that all persons who claim to hold native title in the area be parties to the Indigenous Land Use Agreement.

Native Title Act 1993 (Cth) Subdivision C of Division 3, Part 2

SONIA MARIE MURRAY v REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL, BLAIRGOWRIE SAFE BOAT HARBOUR LIMITED and CAROLYN BRIGGS

V 72 of 2003

SPENDER, BRANSON and NORTH JJ

24 SEPTEMBER 2003

SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondents’ costs.

REASONS FOR JUDGMENT

the court

introduction

1                     This appeal raises for consideration the proper construction of s 24CD of the Native Title Act 1993 (Cth) (‘the Act’).  The appellant accepts that, unless she can persuade this Court that the construction placed on the section by the learned primary judge (Marshall J) was erroneous, the appeal must fail. 

2                     The nature of this appeal renders the factual background to the application made to the primary judge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) of limited significance.  It is sufficient to note that the applicant before the primary judge (the appellant before this Court) sought judicial review of a decision of the first respondent (‘the Registrar’) to register an indigenous land use agreement (‘the land use agreement’).  Marshall J dismissed the application.  His Honour’s decision is challenged before this Court on the ground that his Honour should have found that the agreement the subject of the decision of the Registrar is not an agreement which meets the requirements of ss 24CB to 24CE of the Act and is thus not an ‘indigenous land use agreement’ within the meaning of the Act (see s 24CA).  In particular, the appellant contends that the primary judge should have found that s 24CD of the Act had the effect that certain individuals, including the appellant, were necessary parties to the land use agreement.  His Honour concluded that on the proper construction of s 24CD the appellant was not a necessary party to the land use agreement.

3                     In our view, the construction placed on s 24CD of the Act by Marshall J was correct and this appeal must fail.  We set out below our reasons for reaching this conclusion.

Statutory Scheme

4                     Division 3 of Part 2 of the Act (‘Division 3’) is concerned with ‘future acts’ as defined by s 233 of the Act.  Relevantly Division 3 provides that a future act will be valid if the parties to an indigenous land use agreement consent to the act being done (s 24AA(3)).

5                     Section 24CD of the Act is found in Subdivision C of Division 3 of Part 2 of the Act (‘Subdivision C’).  Subdivision C, which is comprised of ss 24CA – 24CL, is headed Indigenous land use agreements (area agreements).  Subdivision C authorises the making of one class of indigenous land use agreement, namely indigenous land use agreements (area agreements) (‘Subdivision C agreements’).

6                     Section 24CA of the Act provides:

‘An agreement meeting the requirements of sections 24CB to 24CE is an indigenous land use agreement.’

7                     Section 24CB of the Act requires a Subdivision C agreement to be about one or more of certain specified matters in relation to an area.  No issue arises on this appeal under s 24CB.  Nor does any issue arise under s 24CC which prevents an agreement being made under the Subdivision if there are registered native title bodies corporate in relation to all of the area.  There are not registered native title bodies corporate in relation to all of the relevant area.

8                     Section 24CD is of critical importance on this appeal.  It relevantly provides:

‘(1)      All persons in the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement.

(2)               If there is a registered native title claimant, or a registered native title body corporate, in relation to any of the land or waters in the area, the native title group consists of:

(a)               all registered native title claimants in relation to land or waters in the area; and

(b)               all registered native title bodies corporate in relation to land or waters in the area; and

(c)                if, for any part (the non-claimed/determined part) of the land or waters in the area, there is neither a registered native title claimant nor a registered native title body corporate—one or more of the following:

(i)            any person who claims to hold native title in relation to land or waters in the non-claimed/determined part;

(ii)          any representative Aboriginal/Torres Strait Islander body for the non-claimed/determined part.

(3)               If subsection (2) does not apply, the native title group consists of one or more of the following:

(a)               any person who claims to hold native title in relation to land or waters in the area;

(b)               any representative Aboriginal/Torres Strait Islander body for the area.

(4)               If the native title group is covered by subsection (2), one or more of the following may also be parties to the agreement:

(a)               any other person who claims to hold native title in relation to land or waters in the area;

(b)               any representative Aboriginal/Torres Strait Islander body for the area.

…

(7)               If there are any representative Aboriginal/Torres Strait Islander bodies for any of the area and none of them is proposed to be a party to the agreement, a person in the native title group, before entering into the agreement:

(a)               must inform at least one of the representative Aboriginal/Torres Islander bodies of its intention to enter into the agreement; and

(b)               may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement.’

9                     Section 24CG is also of importance to this appeal.  It provides:

‘(1)      Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.

(2)               The application must be accompanied by a copy of the agreement and any other prescribed documents or information.

(3)               Also, the application must either:

(a)               have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 203BE(1)(b) in relation to the area; or

(b)               include a statement to the effect that the following requirements have been met:

(i)                 all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;

(ii)               all of the persons so identified have authorised the making of the agreement;

together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.’

10                  Section 24CH(1)(a) requires the Registrar to give notice of the agreement, in accordance with subsection (2), to certain specified persons and bodies.  The specified persons do not include persons who claim to hold, or hold or may hold, native title in relation to land or waters in the area covered by the agreement.  Section 24CH(1)(b) requires the Registrar to notify the public, in the way determined by the Commonwealth Minister (see s 252), of the agreement in accordance with subsection (2).  Section 24CH(2) provides:

‘(2)      The notice under paragraph (1)(a) or (b) must:

(a)              describe the area covered by the agreement; and

(b)              state the name of each party to the agreement and the address at which the party can be contacted; and

(c)                set out any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b),(c) or (d); and

(d)               include a statement that, within the period (the notice period) of 3 months after the notification day (see subsection (3)):

(i)                 if the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a))—any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification; or

(ii)               if the application contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement)—any person claiming to hold native title in relation to land or waters in the area covered by the agreement may wish, in response to the notice, to make a native title determination application or equivalent application under a law of a State or Territory.’

11                  Section 24CL relevantly controls the registration of Subdivision C agreements.  It provides:

‘(1)      If the application for registration of the agreement contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement), and the conditions in subsections (2) and (3) of this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.

(2)               The first condition is that the following persons are parties to the agreement:

(a)               any person who is, at the end of the notice period, a registered native title claimant or a registered native title body corporate in relation to any of the land or waters in the area covered by the agreement; and

(b)               any person who, after the end of the notice period, becomes a registered native title claimant in relation to any of the land or waters in the area covered by the agreement, where the application containing the claim was made before the end of the notice period and:

(i)            the claim is accepted by the Registrar for registration under subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy conditions equivalent to those set out in sections 190B and 190C under a law of a State or Territory; or

(ii)          the claim is accepted by the Registrar for registration as a result of an application under subsection 190D(2), where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

(iii)        the claim is found to satisfy conditions equivalent to those set out in sections 190B and 190C under a provision of a law of a State or Territory to similar effect as section 190D, and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii) of this paragraph.

(3)               The second condition is that the Registrar considers that the requirements in paragraph 24CG(3)(b) (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement) have been met.

(4)               In deciding whether the requirements have been met, the Registrar must take into account:

(a)               the statements in the application; and

(b)               any information the Registrar is given on the matter by any representative Aboriginal/Torres Strait Islander body or by any other body or person;

and may, but need not, take into account any other matter or thing.’

12                  The contractual effect of a registered indigenous land use agreement is governed by s 24EA of the Act.  Section 24EA(1) and (2) provide:

‘(1)      While details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect, in addition to any effect that it may have apart from this subsection, as if:

(a)               it were a contract among the parties to the agreement; and

(b)               all persons holding native title in relation to any of the land or waters in the area covered by the agreement, who are not already parties to the agreement, were bound by the agreement in the same way as the registered native title bodies corporate, or the native title group, as the case may be.

(2)        To avoid doubt, a person is not bound by the agreement unless the person is a party to the agreement or a person to whom paragraph (1)(b) applies.’

contentions of the parties

13                  The appellant contends that s 24CD requires that all persons who claim to hold native title in relation to land or waters in the area must be parties to the agreement if they have not authorised a party to the agreement to enter into an indigenous land use agreement pursuant to s 24CG(3)(b).  She places particular emphasis on the words of s 24CD(1).

14                  The first respondent has filed a submitting appearance.

15                  The second and third respondents contend that s 24CD(1) does not require that all persons who claim to hold native title in relation to land or waters in the area be parties to the agreement.  They contend that ‘[a]ll persons in the native title group’ within the meaning of s 24CD(1) means all persons in the group that may, in accordance with s 24CD(3), be constituted of one or more of the persons or bodies identified in paragraphs (a) and (b) of the subsection.

consideration

16                  In construing s 24CD it is important that the section be read as a whole.  The section must also be construed in the context provided by Division 3 of Part 2 of the Act and the Act as a whole.

17                  Division 3 discloses an intention that indigenous land use agreements should have contractual effect at common law (see partic. ss 24BE, 24CE, 24DF and 24EA(2)) and, when registered, a wider statutory contractual effect (see Subdivision E of Division 3 of Part 2 of the Act).  It seems likely that it was the capacity of an indigenous land use agreement to have effect as a contract among the parties to the agreement that was thought to require that all persons in the native title group in relation to the Subdivision C agreement should be parties to the agreement.  A notice given by the Registrar for registration of a Subdivision C agreement is required to ‘state the name of each party to the agreement and the address at which the party can be contacted’ (s 23CH(2)(b)).

18                  The requirement of s 24CD of the Act that all persons in the native title group in relation to the area must be parties to the agreement is to be construed in the context that those persons may have to be individually named.  A construction of s 24CD(3) that could require a native title group to consist of every person who claimsto hold native title in relation to land or waters in the area is a construction which could lead to very considerable practical difficulties in meeting the requirements that each member of the group be named.  As Division 3 implicitly recognises (see, for example, s 24CG) it may be impossible in a practical sense to identify all persons who hold, or may hold, native title in relation to land or waters in an area.  At least equivalent practical difficulties, and possibly greater practical difficulties, would attend any attempt to identify every person who claims to hold native title to land or water in an area.  It seems for this reason unlikely that s 24CD(3) was intended to require the identification of all such persons.  Were s 24CD construed so as to require the identifying and naming of all such persons, the consequence would seem to be that a late discovery of a previously unidentified claimant could deprive even a registered agreement of its character as an indigenous land use agreement (see s 24CA).  This inconvenient result should not lightly be found to have been intended by the legislature. 

19                  The conclusion that s 24CD(3) does not require the identification of all persons who claim to hold native title in relation to land or waters in an area is confirmed by examination of the language of s 24CD read as a whole.

20                  First, consideration of subsections (2) and (3) of s 24CD reveals the apparently deliberate use of quite different language in respect of registered native title claimants and registered native title bodies corporate on the one hand and persons who claim to hold native title in relation to land or waters in the area and relevant representative Aboriginal/Torres Strait Islander bodies on the other hand.  Section 24 CD(2)(a) and (b) refer to ‘all registered native title claimants’ and ‘all registered native title bodies corporate’ respectively.  By contrast, s 24CD(3) does not use the inclusive term ‘all’; it uses the expressions ‘one or more of’, ‘any person who …’ and ‘any representative Aboriginal/Torres Strait Islander body for …’.  The difference in language used in respect of registered native title claimants and registered native title bodies corporate on the one hand and persons who claim to hold native title on the other may be assumed to be deliberate and to be intended to serve a purpose.  That purpose, in our view, is to allow any one or more person or persons who claim to hold native title in relation to land or waters in the area to constitute a native title group within the meaning of s 24CD.  They may, in our view, do so alone or in conjunction with one or more representative Aboriginal/Torres Strait Islander body for the area (s 24CD(3)).

21                  The above conclusion does not lead to the result that a person who holds native title in relation to land or waters in the area may be significantly disadvantaged by a Subdivision C agreement.  For the Subdivision C agreement to bind a person who is not a party to the agreement, the agreement must be registered (s 24EA(2)).  An application for a Subdivision C agreement to be registered must have been certified as required by s 24CG(3)(a) or include a statement to the effect required by s 24CG(3)(b).

22                  The certification or certificates required by s 24CG(3)(a) must be given by all representative Aboriginal/Torres Strait Islander bodies for the area performing their function under s 203BE(1)(b) of the Act in relation to the area.  A representative Aboriginal/Torres Strait Islander body is a body concerning which the Commonwealth Minister is satisfied, amongst other things, that it will satisfactorily represent persons who hold or may hold native title in the area (s 203AD).

23                  Where an application for a Subdivision C agreement to be registered includes a statement to the effect required by s 24CG(3)(b), the Registrar must not register the agreement unless the conditions specified in s 24CL(2) and (3) are satisfied.  Those conditions are calculated to ensure that all persons who hold, or may hold, native title in the area have been identified and notified of the agreement and have either authorised the making of the agreement or successfully taken steps to formalise their claim to hold native title in relation to land or waters in the area covered by the agreement.

24                  Secondly, s 24CG(3) plainly recognises, as the appellant accepts, that there may be persons who hold, or may hold, native title in relation to land or water in the area who are not parties to the agreement but have authorised the making of the agreement.  The contention of the appellant that persons who fit this description are implicitly excluded from the native title group under 24CD(3) while other persons who claim to hold native title in relation to land or water in the area are not, finds no support in the language of s24CD(3).

25                  The contention of the appellant that s 24CD requires that all persons who claim to hold native title in relation to land or waters in the area must be parties to the agreement if they have not authorised a party to the agreement to enter into an indigenous land use agreement pursuant to s 24CG(3)(b) must, in our view, be rejected as being contrary to the plain intent of the legislature.

costs

26                  The appellant contended that, in the event that the appeal was unsuccessful, no order should be made requiring her to pay the costs of the respondents or any of them.  The second and third respondents sought a costs order in their favour in the event that the appeal failed.

27                  In considering an application made at first instance by the second respondent for a costs order in its favour, Marshall J observed:

‘It is not in dispute that an order for the payment of costs is discretionary and that the discretion must be exercised judicially. It is also not in contest that the ordinary rule is that costs should follow the event and that a successful party should receive its costs unless special circumstances justify some other order; see, for example, Ruddock v Vadarlis [2001] FCA 1865 at [11], (2001) 115 FCR 229 at 234-235, per Black CJ and French J.

The proceeding was not one under the Native Title Act 1993 (Cth)but it did involve a consideration of the meaning of important provisions in that legislation concerning the entering into and the registration of ILUAs. The judgment of 20 December 2002 dealt with issues relevant to the scope and meaning of s 24CD of the Native Title Act, amongst other matters. It was the first one of its kind to do so. If the application had have been one commenced under the Native Title Act, the Court would have been required to consider the provisions of s 85A of that Act. Section 85A provides that:

“85A Costs

(1)       Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

            Unreasonable conduct

(2)              Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.”

Although not formally a matter arising under the Native Title Act, the proceeding was centrally concerned with provisions of that legislation. I therefore consider it appropriate to take into account the legislative intention that matters which raise for consideration the correct interpretation of the Native Title Act may be considered in a different context from what would otherwise ordinarily apply. In my view, this case is one where it is appropriate “to follow the spirit of subs [85A(1)] of the Act”; see The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16], per O’Loughlin J.’

28                  In our respectful view, the approach adopted by his Honour, as reflected by the above paragraphs, was entirely appropriate in the circumstances of a first instance proceeding.  However, the appellant was dissatisfied with the decision of the primary judge.  It chose to appeal against the judgment of his Honour.  Its appeal, in our view, was without merit.  It seems to us that the considerations which led his Honour to depart from the ordinary rule that costs should follow the event are of greatly diminished significance in the context of this appeal.  In our view the ordinary rule should prevail on this appeal.

conclusion

29                  In our view, on the proper construction of s 24CD of the Act, if subsection (2) does not apply, the native title group which must be a party to the Subdivision C agreement consists of:

(a)        any one or more person or persons who claim to hold native title in relation to land or waters in the area;

(b)        any one or more representative Aboriginal/Torres Strait Islander body or bodies for the area; or

(c)        any one or more person or persons who claims to hold native title in relation to land or waters in the area together with any one or more representative Aboriginal/Torres Strait Islander body or bodies for the area.

30                  We would dismiss the appeal with costs.

Associate:

Dated:              24 September 2003