FEDERAL COURT OF AUSTRALIA

FQM Australia Nickel Pty Ltd v Bullen [2011] FCAFC 30

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    In the absence of written submissions to the contrary within 10 days, there will be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    In the absence of written submissions to the contrary within 10 days, there will be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

THE COURT:

THE APPEALS

Grounds of appeal

1    In these appeals the appellants, the State of Western Australia and FQM Australia Nickel Pty Ltd (the appellants), contend that the primary judge erred in making the following declaration:

On 26 June 2007, immediately before the grant of mining leases M74/169 and M74/172, there was a registered native title claimant as defined by s 253 of the Native Title Act 1993 (Cth) in respect of the areas to which the mining leases relate.

2    The primary judge made this declaration on 20 August 2010, having published reasons for so doing on the same date (Bullen v State of Western Australia [2010] FCA 900).

3    The appellants’ notices of appeal identify two grounds on which it is said the primary judge erred. Whilst particularised in multiple ways, the essence of those grounds may be expressed in simple terms. First, was the primary judge correct to conclude that the persons who had been the registered native title claimant as defined by s 253 of the Native Title Act 1993 (Cth) (the Native Title Act) continued to be the registered native title claimant after they had died? Second, should the primary judge have refused to make the declaration on the ground that the lack of any determination of native title in respect of the areas to which the mining leases relate meant that the dispute was hypothetical?

Agreed facts

4    The facts giving rise to these questions were agreed between the parties. They included the following:

(1)    On 16 July 1999, the Native Title Registrar (the Registrar) accepted for registration a claimant application made by Malcolm John Bullen and James Edward Dimer (as applicant) and included that claim in the Register of Native Title Claims (the Register).

(2)    On 6 October 1999, Mr Bullen died.

(3)    On 8 August 2002, the claimant application was referred to the National Native Title Tribunal (the Tribunal) for mediation, as contemplated by s 86B(1) of the Native Title Act.

(4)    On 5 September 2003, the State of Western Australia gave notice to the applicant and the Goldfields Land and Sea Council Aboriginal Corporation (GLSC) under s 29 of the Native Title Act of a future act, being the possible grant of mining leases M74/169 and M74/172 (the mining leases). These notices specified the notification day as required by s 29(4) of the Native Title Act as 10 September 2003.

(5)    On 8 October 2003, negotiations began in relation to the doing of the future act.

(6)    On 6 September 2005, Mr Dimer died.

(7)    On 7 December 2005, GLSC filed a future act determination application relating to proposed exploration licences in respect of the area to which the claimant application related. This application identified the registered native title claimant for the area as Mr Bullen and Mr Dimer.

(8)    On 8 June 2006, the Tribunal dismissed the future act determination application on the basis that, as both Mr Bullen and Mr Dimer had died before the future act determination application was filed, the application was a nullity.

(9)    On 21 May 2007, the Department of Industry and Resources sent a copy of a letter to GLSC advising that, as the Tribunal had found that there was no living applicant for the claimant application, there was no registered native title claimant, with the consequence that the mining leases could be granted pursuant to s 28(1)(b) of the Native Title Act.

(10)    On 27 June 2007, the Minister granted the mining leases.

(11)    On 23 October 2008, the Court made orders under s 66B of the Native Title Act replacing the late Mr Bullen and Mr Dimer as applicant for the claimant application with six members of the native title claim group.

(12)    On 25 June 2009, the Registrar entered the names of those six persons on the Register as the applicant in respect of the claimant application.

(13)    On 19 October 2009, the six persons so named commenced the proceeding for declaratory relief, as ultimately granted by the primary judge (the form of the declaration sought having been amended on 23 April 2010).

Primary judge’s conclusions

5    The primary judge construed the relevant provisions of the Native Title Act to mean that a person or persons whose name or names appear in an entry on the Register as the applicant in relation to a claim to hold native title in relation to land or waters continues to be the “registered native title claimant” after the death of that person or persons. The primary judge was also satisfied that the declaration should be made as it would quell a real, not hypothetical, dispute between the parties.

Appellants’ contentions

6    The appellants dispute both of the primary judge’s conclusions.

7    As to the issue of construction, the appellants contend: – (i) the definition of “registered native title claimant” requires the existence of a “person or persons”, (ii) a deceased person is not a person at law, (iii) hence, there can be no registered native title claimant if the person or persons whose names appear on the Register have died, (iv) the requirement that the registered native title claimant be a living person or persons is apparent from the provisions of the Native Title Act as a whole, particularly those of Div 3 of Pt 2 of the Native Title Act (concerning future acts and the right to negotiate), (v) the contrary construction is inconsistent with those provisions and would fail to promote their purpose (as required by s 15AA of the Acts Interpretation Act 1901 (Cth)), and (vi) recourse to the notion of a beneficial construction is inapt in the present context in that, for so long as there is no living person whose name appears on the Register as the applicant in relation to a claim to hold native title in relation to land or waters, there is no person with whom negotiations can be conducted.

8    As to the issue of the making of the declaration, the appellants contend: – (i) the existence of a “registered native title claimant” immediately before the grant of the mining leases could be relevant to the validity of the mining leases only if the grant of those leases was a future act, being an act that affects native title, (ii) for this reason the respondents did not impugn the validity of the mining leases and cannot do so unless and until a determination of native title in respect of the land to which the mining leases relate is made, and (iii) accordingly, the status of any registered native title claimant as such immediately before the grant of the mining leases was hypothetical (see, by analogy, Edwards v Santos Ltd (2009) 263 ALR 473 and Edwards v Santos Ltd (2010) 185 FCR 280; and, as to applicable principle, Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9 at [49] and Allphones Retail Pty Ltd v Weimann [2009] FCAFC 135 at [81] (Allphones v Weimann)).

DISCUSSION

Registered native title claimant?

Required approach to construction

9    The appellants’ basic proposition, that a statutory provision which refers to a person (such as the definition of registered native title claimant in s 253 of the Native Title Act) ordinarily contemplates a living person, may be accepted. It is consistent with the fundamental assumptions of the common law (see, for example, R v Newham London Borough Council; ex parte Dada [1995] 3 WLR 540 at 545). It is also consistent with the observation in Yunghanns v Candoora No 19 Pty Ltd [1999] VSC 524 at [88], by reference to Salmond On Jurisprudence (7th ed.) at 334, that “the dead possess no legal personality”; and with the further comment in Salmond On Jurisprudence (11th ed.) at 352 that “dead men are no longer persons in the eyes of the law”.

10    It follows that it also may be accepted that the provisions of Div 3 of Pt 2 of the Native Title Act (dealing with future acts and the right to negotiate procedures in Subdivision P) ordinarily contemplate that a “native title party”, defined in s 29(2) of the Act so as to include a registered native title claimant, will be a living person. This is apparent from the nature of the rights and obligations imposed by those provisions, including for example: – (i) the obligation of the Government party to give notice to a native title party of the future act (s 29), (ii) the obligation of the Government party and any native title party to negotiate in good faith as “negotiation parties” (ss 30A and 31), and (iii) the right of any negotiation party to apply to an arbitral body for a determination in relation to a future act (s 35).

11    Acceptance of these basic propositions, however, does not answer the question in the present case. The reason for this is that statutory provisions must be construed in the context of the legislation as a whole. When that task is undertaken in respect of the relevant provisions of the Native Title Act, it is apparent that the facts of this case expose a conflict or (at least) tension between the provisions of that Act which assume that a registered native title claimant will be a living person (provisions emphasised by the appellants in this case) and other provisions of the Act which constitute a registered native title claimant as a representative of the native title claim group and enable replacement of the registered native title claimant by the native title claim group (provisions emphasised by the respondent in this case).

12    The existence of conflict or tension between the provisions of a single statute is not uncommon. It calls for resolution in accordance with the orthodox approach to statutory construction identified in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70] (Project Blue Sky) (citations omitted):

[69] The primary 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. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

13    It is necessary, therefore, for the relevant statutory provisions to be identified and reconciled in the required manner (that is, as the High Court expressed the task, to best give effect to the purpose and language of the statute whilst maintaining the unity of the statutory scheme).

The statutory scheme

14    A native title determination application (or “claimant application” as defined in s 253) may be made to the Court in accordance with s 61. It is an application “for a determination of native title in relation to an area for which there is no approved determination of native title” (s 61(1)). It may be made by a “person or persons authorised by all the persons (the “native title claim group”) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group” (s 61(1)). For a person or persons to be authorised, the requirements of s 251B of the Act must be satisfied. Section 251B enables authorisation both in accordance with traditional laws and customs (s 251B(a)) and otherwise (s 251B(b)).

15    The authorised person(s) are the “applicant” (s 61(2)(c)). The native title claim group is not the applicant (s 61(2)(d)). The applicant alone is empowered to deal with all matters arising in relation to the application under the Native Title Act (s 62). In the context of these provisions it has been said that the authorised persons – the applicant – are representatives of the claim group and have no personal interest in the proceedings other than their interest as members of the claim group (Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 at [8]; Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809 at [36]).

16    The application must be referred to the Registrar (s 63). The Registrar must decide whether or not the claim made in the application is to be accepted for registration (s 190A). If the Registrar decides that the claim satisfies the pre-conditions to registration the Registrar must accept the claim for registration (s 190A(6)). Under s 190(1) the Registrar must, as soon as practicable, enter on the Register details of any claims accepted for registration. Equivalent provisions apply to amended claims and to subsequent amendments to the claims included on the Register (ss 64-66B, 190A(1)-(1A), 190(2)-(4)).

17    Section 186(1) of the Native Title Act specifies the contents of the Register for each claim in these terms:

(1)    The Register must contain the following information for each claim covered by subsection 190(1):

(a)    whether the application was filed in the Federal Court or lodged with a recognised State/Territory body;

(b)    if the application was lodged with a recognised State/Territory body--the name of that body;

(c)    the date on which the application was filed or lodged;

(ca)    the date on which the claim is entered on the Register;

(d)    the name and address for service of the applicant;

(e)    the area of land or waters covered by the claim;

(f)    a description of the persons who it is claimed hold the native title;

(g)    a description of the native title rights and interests in the claim that:

(i)    the Registrar or the NNTT in applying subsection 190B(6); or

(ii)    a recognised State/Territory body in applying provisions equivalent to that subsection;

considered, prima facie, could be established.

18    The definition of registered native title claimant in s 253 of the Native Title Act is as follows:

registered native title claimant, in relation to land or waters, means a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.

19    In the present case the persons in question, the late Mr Bullen and Mr Dimer, were both alive at the time they made the claimant application and the Registrar entered their names on the Register. Hence, there was no question in the proceeding before the primary judge about their status as registered native title claimants at the time of entry of their names on the Register and before the time of their death.

20    Status as a registered native title claimant is relevant to various provisions of the Native Title Act. In particular, a registered native title claimant (included in the definition of “native title party” by virtue of s 29(2)(b)(i) of the Native Title Act) is a person to whom notice must be given by a Government party wishing to engage the right to negotiate provisions found in Subdivision P of Div 3 of Pt 2 of the Native Title Act. If an act is a “future act” as defined in s 233 (being an act that affects native title) then, for the act to be valid, certain requirements must be met. These include, for certain future acts, satisfaction of the right to negotiate provisions (s 24AA(5)). A person to whom notice must be given under s 29(2) in order to satisfy those right to negotiate provisions, including a registered native title party, is a “negotiation party” under s 30A and is thereby bound by the negotiation procedures specified.

21    Section 30(1) provides that other persons are also “native title parties”, including any person who becomes a registered native title claimant within 4 months of the notification day specified in the notice under s 29(2), and a registered native title body corporate.

22    Section 30(2) provides that:

A person ceases to be a native title party if the person ceases to be a registered native title claimant.

23    Section 66B of the Native Title Act is in these terms:

(1)    One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a)    one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

(i)    the person consents to his or her replacement or removal;

(ii)    the person has died or become incapacitated;

(iii)    the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(iv)    the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

(b)    the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

(2)    The Court may make the order if it is satisfied that the grounds are established.

(3)    If the Court makes the order, the Registrar of the Federal Court must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant.

(4)    If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.

24    By s 28 of the Native Title Act, an act to which the right to negotiate provisions apply is invalid to the extent that it affects native title unless one of the conditions in that section is satisfied. Those conditions include, for example, the making of an agreement between the negotiation parties as to the doing of the relevant act, and the making of a determination by an arbitral body or the Minister that the act may be done. They also include circumstances where (s 28(1)):

(a)    by the end of the period of 4 months after the notification day for the act (see subsection 29(4)), there is no native title party in relation to any of the land or waters that will be affected by the act;

(b)    after the end of that period, but immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act;

25    In the present case, the mining leases were granted in reliance on s 28(1)(b) of the Native Title Act on the basis that, by reason of their deaths, the late Mr Bullen and Mr Dimer ceased to be “a person or persons whose name or names appear in an entry on the Register of Native Title Claims” and thus ceased to be a “registered native title claimant” (s 253). and hence a “native title party” (s 30(2)), as defined.

Resolution of statutory provisions

26    The conflict or tension between these provisions of the Native Title Act is that they contemplate both that a registered native title claimant (and thus native title party) will be a living person (otherwise the right to negotiate procedures cannot practically be implemented), and that a registered native title claimant (and thus native title party) may die and be replaced by another member of the claim group who is authorised as required without affecting the validity or continued existence of the claimant application (s 66B). The potential inconsistency is exposed by example. If a person ceases to be a registered native title claimant on death then immediately upon the death of a single registered native title claimant, or the last survivor of multiple registered native title claimants, s 28(1)(b) operates. At this point, a future act which would otherwise be invalid may validly be done. Yet Parliament also contemplated that, on the death of a registered native title claimant, an application may be made to replace that person with another authorised person. If such an application is made and granted under s 66B, the replacement person becomes the registered native title claimant and the same future act may not be done in reliance on s 28(1)(b).

27    How are these provisions to be reconciled to “best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions” (Project Blue Sky at [70])?

28    Reconciliation requires recognition of the fact that s 66B of the Native Title Act expressly deals with the consequences for a claimant application (whether or not it has been accepted for registration) where an applicant in relation to that application later dies. For that section to operate as Parliament contemplated, a person cannot cease to be a registered native title claimant on death. If that were so, the express provisions for replacement of a registered native title claimant would be subordinated to an implied obligation on a native title group to ensure that, at all times, a registered native title claimant was alive and thus capable of representing the group in accordance with the requirements of the legislation, including by engaging in the right to negotiate procedures. The difficulty for the appellants is that this obligation, if it exists, must be implied into the statutory scheme in the face of an express provision by which Parliament contemplated not only that an applicant (and thus, in the case of a registered claim, a registered native title claimant) may die, but also that other members of the group may have the opportunity, in that event, to be authorised as a replacement in accordance with s 251B, make an application under s 66B(1), obtain an order under s 66B(2) and, thereafter, have the Registrar amend the Register as required by s 66B(4). Given these express provisions, and the time which Parliament must have contemplated they might take to implement, there cannot be implied into the statute an obligation on a native title claim group to ensure that, at all times, there is a living registered native title claimant. Nor can the consequence of a failure to discharge this purported obligation be that there is no registered native title claimant at all for any period between the death of the registered native title claimant and the amendment of the Register pursuant to s 66B to reflect the appointment of a replacement – a period during which otherwise invalid future acts could then validly be done. No doubt it would be sensible for a native title claim group to take steps to ensure that there is a living registered native title claimant; but that is a matter of practical management, not legal obligation.

29    The decision in Chapman v Queensland (2007) 159 FCR 507 (Chapman v Queensland) does not assist the appellants. In Chapman v Queensland, Kiefel J held that the Court had power, outside the scope of s 66B, to order the replacement of an applicant and amendment of the Register. In that context Kiefel J also observed (at [16]) that the Registrar would have an implied power to amend the Register in a case where an applicant clearly could not continue to represent the native title claim group, such as by reason of death. According to the appellants this observation supports the submission that, when a registered native title claimant dies, the continued appearance of their name on the Register as an applicant in relation to the claim is an error liable to correction by the Registrar, as a person cannot be a registered native title claimant after they have died. However, the issue before Kiefel J was not whether a person who has died continues to be a registered native title claimant. Further, at the time Chapman v Queensland was decided, s 66B was in a different form. It enabled replacement of an applicant on the Register only in the event of the loss or exceeding of their authority. The section did not deal with death or incapacity at all. It was amended by the Native Title Amendment (Technical Amendments) Act 2007 (Cth). The present statutory context, accordingly, is different.

30    The same level of analysis demonstrates why the decision in Lennon v State of South Australia [2010] FCA 743 (Lennon) also does not assist the appellants. In Lennon Mansfield J decided that, if one of the persons named on the Register as the applicant dies, the other persons constituting the applicant (as defined in s 61(2) of the Native Title Act) continue to be authorised and can act as the applicant. His Honour further decided that the Court was able to remove the name of the deceased person from the Register without the need for an application under s 66B. In so deciding it is true that Mansfield J said that, to the extent necessary to support his conclusion, he disagreed with the decision of Siopis J in Sambo v State of Western Australia (2008) 172 FCR 271 (Sambo). In Sambo Siopis J (at [30]) held that “there is only one means whereby any changes can be made to the composition of the applicant and that is through s 66B of the [Native Title] Act”. Leaving aside the distinction between an application to remove an applicant who has died (with which Mansfield J was dealing in Lennon) and one to remove two living persons and retain the five remaining persons as the applicant (with which Siopis J was dealing in Sambo), neither was confronted by the same issue as that which arises in the present case. Mansfield J did not, for example, suggest that the deceased applicant in Lennon ceased to be an applicant (and thus a registered native title claimant) immediately upon death.

31    Construing the definition of “registered native title claimant” as continuing to apply to an applicant who has died until removal of that person’s name from the Register is consistent with the representative character of proceedings under the Native Title Act. Section 66B assumes that a claimant application continues to exist after the death of the applicant, and the appellants acknowledged this to be so (albeit on the basis that no step could be taken in respect of a claimant application unless and until a deceased applicant is replaced by a living person). Where a claimant application has been registered, s 66B also assumes that the claimant application continues to be registered. Moreover, s 66B expressly provides that the person who was a living applicant in relation to a claimant application continues to be the applicant on his or her death (given emphasis by the words “current applicant” in s 66B(1)). This reference is not a matter of mere drafting necessity (as the appellants contended). It is an essential part of a scheme designed to ensure the continuation of a claimant application, including its status as a registered claim with a registered native title claimant, notwithstanding the death of the applicant, so as to enable an application for a replacement to be made and given effect.

32    In other words, the scheme provided for in s 66B assumes that an applicant who has died after registration of their claimant application is still a registered native title claimant as defined. This scheme is also consistent with s 30(2) of the Native Title Act, which provides that a person ceases to be a native title party if the person ceases to be a registered native title claimant. Section 30(2) does not provide, for example, that a person ceases to be a native title party on his or her death. In the context of a statute which expressly deals (in s 66B) with the consequences of the death of an applicant (and so of a registered native title claimant if the claim to which the application relates have been registered), it is not apparent why a registered native title claimant as defined (which Mr Bullen and Mr Dimer undoubtedly were before their respective deaths) would cease to be a registered native title claimant only by reason of death. By the inclusion of their name on the Register the deceased person remains, for the purpose of the Native Title Act at least, a person whose name appears in an entry on the Register as the applicant in relation to a claim to hold native title in relation to the land or waters. Because the person continues to have that status despite their death, s 66B can operate to enable the replacement of that person as the current applicant and, equally importantly, the amendment of the Register to that effect.

33    Contrary to the appellants’ submissions the primary judge was not in error by focusing on s 66B as an important part of the context for the resolution of this issue. When regard is had to the statutory provisions of the Native Title Act overall, it is apparent that the legislature, in s 66B, deals with the very question which the primary judge had to determine – the effect of the death of a registered native title claimant on their status as a registered native title claimant. The way in which the legislature dealt with the issue may be imperfect, at least from the appellants’ perspective. For one thing, the Native Title Act does not provide a maximum period of time within which an application for replacement of an applicant who has died may be made. For another, it does not provide that a registered native title claimant ceases to have that status on expiry of that maximum time period if no order for replacement has been made. This, in truth, was the essence of the appellants’ complaint. The fact that the statute does not deal with these matters is capable of causing inconvenience to persons in the position of the appellants. But potential for inconvenience is not a reason to avoid giving effect to the statutory scheme which the legislature has prescribed. The statutory scheme enables a member of the native title claim group to replace a registered native title claimant who has died. It enables this to occur without either the claim as registered or the deceased applicant’s status as a registered native title claimant lapsing. On the order for replacement, the Registrar is to amend the Register. But there is no requirement, for example, for the Registrar to remove the claim, or the name of the applicant, from the Register on becoming aware of the death of an applicant. Nor is there any requirement for the Registrar to reassess a claim where, for example, a sole applicant and registered native title claimant has died.

34    Furthermore, if inconvenience of the kind relied upon by the appellants could be material to the task of construction, it is apparent that far more inconvenience could result from construing the definition of registered native title claimant in a manner which excludes a person whose name appears in an entry on the Register on their death. If such a construction were adopted, it would be unclear whether members of a native title group who were intending to authorise a new person or persons to replace a single registered native title claimant (or the last of multiple registered native title claimants) who had died would be able to obtain an injunction to restrain a threatened future act until the replacement application had been made and determined. Contrary to the appellants’ submissions, to contemplate this possibility is not to test the language of the statute by postulating an unlikely scenario. Death of all persons who comprise the applicant in relation to a claimant application (and thus the registered native title claimant if the claim to which the application relates is registered) is not so unlikely that Parliament omitted to provide for it altogether, as s 66B discloses.

35    Equally unfounded is the appellants’ complaint that the primary judge engaged in an inappropriate exercise by asking (at [67]) whether the legislature could have intended that a future act could be validly done without further ado if the registered native title claimant died in the course of ongoing negotiations. The answer to the primary judge’s question is that the legislature did not so intend. Instead it provided a mechanism (s 66B) by which the applicant - the registered native title claimant - could be replaced without affecting the validity of the application or of the claim as registered. The statutory scheme may not be ideal from the appellants’ perspective, but it is far from absurd or unworkable.

36    Moreover, and as the primary judge noted, there are other options to facilitate the operation of the provisions of the Native Title Act. For example, if there is unreasonable delay by members of a native title claim group in making an application for replacement of a deceased applicant pursuant to s 66B, a person in the position of the appellants could engage procedures for an arbitral body determination (s 35) or a Ministerial determination (s 36A). It is true that, without a living registered native title claimant, there would be no contradictor for the purpose of these applications. But any negotiation party could trigger the operation of these provisions (s 35(1)) with or without the involvement of the other negotiation party. As a further example, and as the appellants acknowledged, in the face of unreasonable delay by a native title claim group in applying for an order to replace a deceased applicant, any other party to the claimant application proceeding commenced by the filing of the application under s 61 could have recourse to the Court. So much is evident from the fact that, in establishing the scheme for replacement without specifying a maximum period of time within which an application for replacement of a deceased applicant may be made, and without providing that a registered native title claimant ceases to have that status on expiry of that maximum time period if an order for replacement has not been made, Parliament must be taken to have been aware that a claimant application is filed in the Court and engages the Court’s processes. Accordingly, an application could be made to the Court for the summary dismissal of any proceeding for want of prosecution; unreasonably maintaining a proceeding without a living applicant would generally be an abuse of process exposing the proceeding to the risk of summary dismissal pursuant to O 20 of the Federal Court Rules.

37    The appellants characterised both these options as cumbersome. As noted, mere inconvenience of this kind is an insufficient basis to support the appellants’ construction. The appellants’ contention that the primary judge’s construction leads to an absurd result is unfounded. As discussed, far from being absurd, the legislative scheme as construed by the primary judge provides for the situation where a registered native title claimant dies. Section 66B provides the mechanism for the replacement of that person as registered native title claimant (leaving aside the withdrawal of the application altogether). This construction gives effect to the statutory provisions. As such, it cannot be said to undermine any of the purposes of the statute outlined in s 3. To the contrary, it promotes those purposes where the construction of the appellants would undermine them. Nor can it be said that this preferred construction is inconsistent with the object of the Native Title Amendment Act 1998 (Cth) to “produce a rationalisation and reduction of claims and improve their management”. It is not apparent how the appellants’ approach would rationalise or reduce claims unless a consequence of their argument is that a claim (registered or otherwise) ceases to exist altogether on the death of the registered native title claimant. The appellants said that was not so; the registered native title claimant ceased to exist, but the claim did not. If that is so the appellants’ argument does little to advance the rationalisation of claims or their improved management.

38    None of the other provisions on which the appellants relied indicates that a different conclusion should be reached. The provisions of Div 3 of Pt 2 (stressed by the appellants) create the tension or potential inconsistency with the scheme for replacement under s 66B. Proper resolution of that tension is to give effect to s 66B on its own terms. In the language of Project Blue Sky, when it comes to the effect of the death of an applicant, s 66B is the leading provision which takes precedence. The fact that there are other definitions in the Native Title Act, such as “native title holder” and “native title claim group”, which the legislature could have used in defining a “native title party” for the purpose of Div 3 of Pt 2 of the Act, is a neutral consideration. The statute defines a native title party in a way which includes a registered native title claimant. It defines a registered native title claimant in a way which requires entry on the Register. It contains provisions dealing with the Register and its amendment. Those provisions include the replacement of an applicant who is a registered native title claimant where that applicant has died. Effect must be given to the scheme for which the statute provides.

39    Similarly, the fact that the Native Title Act contemplates that there may be no registered native title claimant in respect of land or waters (for example, s 24NA(10)(d)) is not a persuasive factor in favour of the appellants. Nor is the four-month period after the giving of notice under s 29 during which a person may become a registered native title claimant (ss 29(4) and 30(1)). It is true that, as the appellants point out, the death of a registered native title claimant during this period would leave the claimant group a window during which the Government party would be unable to invoke s 28(1)(a) or (b) (if, as is assumed, it wished to ensure the validity of its future act). Provided that the claim group effected replacement of the deceased applicant before the expiry of the four-month period, his or her death would not have any adverse consequences in relation to the proposed future act. But, as the provisions of Div 3 of Pt 2 recognise, there is likely to be a far lengthier period after both the registered native title claimant has been recorded on the Register and the fourmonth notification period has expired. If the appellants’ construction is accepted then, on the death of a registered native title claimant during this period, the Government party (as the primary judge recognised) would be able to invoke s 28(1)(b). If the future act were done before the claimant group had effected the replacement of the deceased applicant under s 66B, the act would be valid even if the claimant group had engaged in the replacement process without delay. Accepting the practical desirability of a native title claim group ensuring that there is always a living registered native title claimant is one thing; construing the statute in a manner which results in there being no registered native title claimant at all by reason only of death is another.

40    The question in the present case is whether there was a registered native title claimant immediately before the grant of the mining leases. For the reasons given above that question, on the facts of the present case, should be answered in the affirmative and in favour of the respondents to the appeals. In reaching that answer it is not necessary to give precedence to abstract notions of the beneficial construction of remedial statutes or the value to native title parties of the right to negotiate; the answer follows from the language of the statute construed in context.

Declaration?

41    The appellants’ reliance on Edwards v Santos is misplaced. In Edwards v Santos the applicant sought declarations to the effect that the grant of petroleum leases would not be a “pre-existing rights based act” within the meaning of Subdiv I of Div 3 of Pt 2 of the Native Title Act, and would not be valid pursuant to s 24ID of that Act unless the requirements of Subdivision P of Div 3 of Pt 2 (the right to negotiate provisions) had been satisfied. The difficulty for the applicant in Edwards v Santos was that the petroleum leases proposed to be the subject of the declarations had neither been granted nor, indeed, been the subject of any actual or even impending application. The declarations did not concern a matter, existing or contingent, but a speculative possibility. The present case is different. The mining leases have been granted. The declaration sought concerns the existence of a fact – the status of persons as registered native title claimants immediately before that grant – which is real and not hypothetical. According to the State of Western Australia, the grants were premised on another, assumed, fact – that there were no registered native title claimants in existence at that time. The respondents – the current registered native title claimant – dispute that assumed fact. The dispute has potential legal and practical consequences. As the primary judge said at [27]:

If the respondents are right, the validity of the mining leases cannot be impugned on the basis that the applicant in the Esperance Nyungar native title determination subsequently proves native title rights of a character which affect the rights conferred on the holder of the mining leases. If, on the other hand, the respondents are wrong, then the respondents run the risk of the validity of the mining leases being impugned to the extent that the applicant in the Esperance Nyungar native title determination application subsequently proves that native title of a character which affects the rights conferred on the holder of the mining leases [exists].

42    Given that the mining leases in question exist, the status of persons as registered native title claimants immediately before their grant involves a real not hypothetical question. In Lardil Peoples v State of Queensland (2001) 108 FCR 453 the applicants sought a declaration that an authority granted to install a mooring buoy was invalid (in addition to injunctive relief). The validity of the authority, however, depended on its grant being a future act – that is, an act which affects native title. As that question remained undetermined, the declaration sought could not be granted. The form of the declaration sought in the present case is different. It does not depend on the assumed existence of native title. It is true that the declaration would be relevant to the validity of the mining leases if native title is found to exist. But that is simply an aspect of its utility. It does not place the making of the declaration beyond the exercise of judicial power as a mere advisory opinion. There are other aspects of utility in any event. The mining leases have been granted. New persons have been appointed as the applicant for the claim and thus are registered native title claimants. There is a real dispute between those persons and the appellants as to whether there was a registered native title claimant immediately before the grant of the mining leases. The declaration quells that controversy.

43    On this basis, it was unnecessary for the primary judge to identify (as he did at [27]) other aspects of the utility of the declaration (that is, its potential effect on the value of the mining leases and the opportunity for the holders of the mining leases to take remedial action). Nevertheless, both matters were inferences available from the agreed facts and were at least sufficient to support the conclusion of utility. The primary judge was entitled to take the question of utility, and thus these matters, into account in the exercise of his discretion.

44    As the respondents submitted, the appellants’ characterisation of the declaration as a “staging-post” for other litigation, properly analysed, is an impermissible complaint about a discretionary exercise; it does not support the submission that the declaration should not have been made as it involved a hypothetical and not a real dispute. The respondents’ written submissions conveniently explain why this is so as follows:

The fact that a particular declaration may be a “platform for other relief” [Kirby v Centro Properties Limited (2010) 189 FCR 30; [2010] FCA 1115 at [50]) is not an impediment to the making of the declaration on the basis that it is hypothetical [Allphones v Weimann at [77]-[82]]. Ward J, in Quest Rose Hill Pty Ltd v White [[2010] NSWSC 939 at [198]] observed that “the fact that a declaration might not finally conclude the dispute between the parties can hardly ever be, of itself, a proper ground for not making a declaration” although it is relevant to the exercise of the discretion.

[…]

The suggestion that there is a rule of law that a declaration may not be made where it will not preclude further litigation is not […] correct. Australian authorities refering to the “staging post” concept [see, eg, Platypus Leasing Inc v Commissioner of Taxation (2005) 189 FLR 441 at [81]-[82], McKeown v Cavalter Yachts Pty Ltd (1988) 13 NSWLR 303 at 312, 2009 Edwards v Santos decision at 473] are best conceived of as observations made in the process of weighing the utility of making a declaration.

45    Similarly, the appellants’ related submission that the primary judge failed to have regard to a relevant consideration in the discretionary exercise (namely, the prevention of the fragmentation of proceedings in circumstances where proceedings have been on foot in the Federal Court since 1998 about the existence of native title in the subject area, being proceedings which, the appellants said, “could properly determine all issues in relation to the mining leases) is unsustainable. No complaint is made in the appeals that the primary judge’s reasons are inadequate due to some failure to have dealt with a material issue between the parties. Given the nature and breadth of the discretion relating to the making of declarations, it is not open to persons in the appellants’ position to select one possible relevant consideration as having been overlooked and thereby seek to impugn the primary decision on that basis. The nature and the breadth of the discretion do not permit any one consideration to be elevated to the status of a matter that the primary judge was bound to consider. It follows that the primary judge’s discretionary decision cannot be challenged on appeal in this way (House v The King (1936) 55 CLR 499 at 504-505).

CONCLUSIONS

46    The grounds of appeal cannot be sustained and the appeals will be dismissed.

47    Although the appeals are to be dismissed, the points raised by the appellants were important to the construction of the legislation and were reasonably pursued. Unless there are written submissions to the contrary filed within ten days, there will be no order as to costs having regard to s 85A of the Native Title Act (see Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2010] FCA 1154).

Associate:

Dated:    9 March 2011