FEDERAL COURT OF AUSTRALIA
Burragubba v State of Queensland [2017] FCAFC 133
ORDERS
Appellant | ||
AND: | First Respondent ADANI MINING PTY LTD ACN 145 455 205 Second Respondent NATIONAL NATIVE TITLE TRIBUNAL Third Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. the appellant pay the costs of the first and second respondents, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
introduction
1 As is well-known, the Queensland Government (the “State”) proposes to grant mining leases to Adani Mining Pty Ltd (“Adani”). We will refer to the proposed leases as the “mining leases”. Both leases are within the boundary of an area (the “Claim Area”) over which the Wangan and Jagalingou People (the “Claim Group”) seeks a determination as to the existence of native title. Pursuant to s 61(1) of the Native Title Act 1993 (Cth) (the “Native Title Act”) an application for such a determination must 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 ...
2 At a later stage we will consider in detail the relevant provisions of the Native Title Act. However, at this stage, we provide the following overview of the scheme of that Act.
3 By convention, in native title proceedings, the term “applicant” is used as a collective noun, describing the person or persons authorised pursuant to s 61(1). The applicant makes the relevant claim on behalf of the native title claim group by application filed in this Court, and thereafter has the carriage of the proceedings. Upon filing of the application the Registrar of the National Native Title Tribunal (the “Tribunal”) is advised of the application, decides whether to accept it for registration, notifies the fact of the application to various persons or entities and places a public advertisement. Such an application is part of the Court’s process and, once filed, is subject to the practice and procedure of the Court. The Court may permit amendments. Section 66B authorises replacement of the person, or one or more of the persons comprising the applicant.
4 The Native Title Act regulates the circumstances in which State governments may, by legislative or administrative action, affect native title. Such actions are called “future acts”. It is common ground that the grant of the mining leases would be a “future act” for the purposes of Div 3 of the Native Title Act, and accordingly, would be regulated by that Act. Upon acceptance of an application made pursuant to s 61, an applicant acquires certain rights concerning proposed future acts. Section 24OA of the Native Title Act provides that future acts will be invalid to the extent that they affect native title, unless certain prescribed procedures have been followed. Those procedures include notification of the proposed future act, the making and consideration of submissions concerning the proposal and negotiation in good faith involving the relevant government, any native title party and any person asking that the relevant government perform the proposed future act. For present purposes the applicant on behalf of the Claim Group is a native title party, entitled to negotiate in connection with the proposed grant of the mining leases. That applicant (the “Applicant”) was, at all relevant times, comprised of the appellant and two other members of the Claim Group. Section 35 of the Native Title Act provides that in certain circumstances, a party to such negotiations may apply to the Tribunal for a determination concerning the proposed future act. In so doing, the Tribunal must have regard to criteria set out in s 39 of the Native Title Act.
PROCEEDINGS IN THE TRIBUNAL
5 On 9 October 2013, the State gave notice pursuant to s 29 of the Native Title Act of its intention to grant the mining leases to Adani. Negotiations presumably followed as contemplated by the provisions of the Native Title Act. On 10 October 2014, Adani applied to the Tribunal under s 35 for a future act determination. The parties to the proceedings in the Tribunal were the negotiation parties identified in s 30A, namely, the State, Adani and the Applicant on behalf of the Claim Group. In subsequent proceedings in the Tribunal, all three parties were legally represented. The Tribunal fixed a timetable for the provision of evidence and submissions. Both the State and Adani responded. The Applicant eventually indicated, through its solicitor, that it would not be making submissions concerning the application. Shortly thereafter, and after the expiry of the period within which the Applicant was to comply with the Tribunal’s timetable, the appellant forwarded a statement to the Tribunal. It purported to be made by the Wangan and Jagalingou Families Representative Council (the “Families Council”). Amongst other matters it stated that, “for these reasons our lawyers were asked to tell the Tribunal that we can no longer participate in these proceedings”. After receiving submissions from the parties and, separately, from the appellant, the Tribunal held that the appellant’s statement was not relevant to the proceedings. This decision was based partly upon the fact that it was supplied after the closing date fixed for the provision of evidence and submissions by the parties, and partly upon the fact that as the evidence stood, the statement was merely that of the appellant.
6 On 2 April 2015 the Tribunal received a letter from Ms Linda Bobongie, on behalf of the Families Council. Ms Bobongie asserted that the appellant was authorised to speak on behalf of the Wangan and Jagalingou People. The Tribunal considered that the letter added nothing to its understanding of the “group’s opposition” to the proposed mining leases. We understand the Tribunal to have been referring to the Families Council and not to the Claim Group. The Tribunal also noted that the Applicant had not made submissions in support of the proposed grants, nor had it consented to them. The Tribunal proceeded to consider the matter on the basis of the material and submissions put before it by the negotiation parties.
7 Adani provided to the Tribunal an environmental impact statement (the “EIS”) which offered opinions as to the economic impact of the proposed development (not merely the grants of the mining leases) and dealt with many other matters. The EIS was prepared pursuant to the requirements of State and Commonwealth legislation. Concerning the economic significance of the project, both the State and Adani submitted that the proposed grants would be economically favourable.
THE TRIBUNAL’S DECISION
8 The Tribunal’s decision is dated 8 April 2015. It addressed the criteria identified in s 39 and determined that the proposed grants of the mining leases “may be done”. The criteria were discussed at paras 101-108. In the judicial review proceedings, at first instance and on appeal, the appellant’s complaint has focussed upon the criterion identified in s 39(1)(c), namely:
the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
...
9 The breadth of this criterion should be noted. It is not limited to economic significance. Nor is it limited to matters of significance to Aboriginal Peoples or Torres Strait Islanders.
10 The Tribunal referred to the evidence in the EIS concerning the anticipated amount of financial investment and the anticipated creation of employment opportunities. At para 108, the Tribunal concluded:
I understand the figures provided by [Adani] above to be applicable to the Project rather than the proposed grants themselves, however, I accept that the benefits to the Project will be experienced in the area of the proposed leases. On the evidence before me, I conclude that grant of the leases will have a positive economic impact.
PROCEEDINGS IN THE LAND COURT OF QUEENSLAND
11 In parallel with proceedings in the Tribunal, there were proceedings in the Land Court of Queensland arising out of objections to the grants of the proposed mining leases. The objectors were Land Services of Coast and Country Inc and the Conservation Action Trust. It seems that in these proceedings Adani and the objectors proposed to call expert evidence, including evidence as to the economic impact of the overall project. Orders were made for the purpose of identifying the issues about which there would be expert evidence, and providing a mechanism by which the expert witnesses might reach agreement on some or all of any matters in dispute between them. It seems that Adani proposed, at least to some extent, to rely on the EIS. We infer that an expert to be called by one of the objectors prepared a list of issues arising out of that document. Two experts, Dr Fahrer for Adani, and Mr Campbell for the relevant objector, consulted with a view to reaching agreement. In a joint report (the “joint report”) dated 19 December 2014, those experts identified agreed deficiencies in the EIS. However it seems that Dr Fahrer, at least, considered that the shortcomings could be remedied. It was agreed that the EIS over-estimated the employment benefits. Dr Fahrer considered that a more accurate assessment could be made.
12 Dr Fahrer subsequently produced two further reports (the “further reports”). In terms of overall numbers, his further reports suggested lower increased levels of employment than those suggested in the EIS. The predicted economic benefit seems also to have been significantly less than that predicted in the EIS. Nonetheless the reports demonstrated very substantial benefits arising from the project. Further, there is at least a suggestion that no direct comparison can be drawn between the employment and other figures in the EIS and those subsequently offered in the joint report and the further reports. It seems that different purposes were to be served by the different analyses, and that different modelling techniques were used. Unfortunately, these matters were not addressed in evidence in this Court. They obviously involve matters of expert opinion about which neither the parties nor the Court should speculate.
JUDICIAL REVIEW
13 At some stage, the appellant became aware of the existence of the joint report and the further reports. As a result, he filed in this Court an application for review of the Tribunal’s decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”). Such an application may be made by “a person aggrieved” by the relevant decision. At first instance, the State and Adani challenged the appellant’s standing to bring such an application. The primary Judge dismissed the application on other grounds, and so that question was not resolved. On appeal, both the State and Adani press the challenge.
GROUNDS FOR JUDICIAL REVIEW
14 The grounds of the judicial review application were:
1. The Decision was induced or affected by circumstances analogous to fraud or, alternatively, the procedures that were required by law to be observed in connection with the making of the Decision were not observed, in that:
(a) [Adani] submitted to the [Tribunal] material concerning the economic impact of the project (the "economic material") of which the two proposed [mining leases] were a central component, for the purposes of the [Tribunal] making the Decision;
(b) at the time it submitted the economic material, [Adani] had in its possession material which was materially different from the conclusions of the economic material;
(c) [Adani] deliberately refrained from providing the [Tribunal] with the material which was materially different from the conclusions of the economic material;
(d) by submitting only the economic material, while refraining from providing other material in its possession which was materially different from the conclusions of the economic material, [Adani] represented that the accuracy of the economic material was not subject to dispute (the "representation");
(e) when making the representation, [Adani] was dishonestly misleading;
(f) dishonestly misleading conduct is conduct analogous to fraud within s 5.(1)(g) of the [ADJR Act] or, in the alternative, such conduct has caused and resulted in a failure to observe the requisite procedures in connection with the making of the Decision within s 5.(1)(b) of the [ADJR Act]; and
(g) the Decision was induced or affected by the representation.
...
2. The [Tribunal] failed to observe the rules of natural justice, or constructively failed to exercise its jurisdiction, by failing to make obvious inquiries into the basis and extent of the objections that the Applicant sought to make.
3. The Decision was an improper exercise of power reposed in the [Tribunal], in that when making the Decision the [Tribunal] failed to take into account a relevant consideration being material related to the matters set out in ss. 39(1)(a)(i)-(iii) and 39(1)(b)-(e) of the [Native Title Act].
4. The Decision involved an error of law, being that the [Tribunal] erroneously concluded that the reference to “native title party” in the criteria of s. 39(1) was a reference to the persons collectively comprising the [A]pplicant in the QUD 85 application when the [Tribunal] should have concluded that the term was a reference to the members of the [Claim Group] or the native title party for the QUD85 application.
15 In ground 1, the appellant purported to rely upon ss 5(1)(b) and 5(1)(g) of the ADJR Act. Section 5 provides relevantly as follows:
(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
...
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
...
(g) that the decision was induced or affected by fraud;
...
16 The primary Judge considered that ground 1 raised five questions, namely:
(1) Is conduct “analogous to fraud” sufficient to engage s 5(1)(g) of the ADJR Act?
(2) If not, does the expression “procedures that were required by law” in s 5(1)(b) of the ADJR Act include a requirement that a party avoid conduct that is analogous to fraud?
(3) If it is (or, in any event), did Adani make a representation to the Tribunal that was dishonestly misleading?
(4) If so, did that conduct constitute conduct that is analogous to fraud?
(5) If so, was the Tribunal’s determination induced or affected by that conduct?
17 His Honour effectively held that:
the appellant’s case was based on alleged fraud, and not conduct analogous to fraud;
section 5(1)(b) provides that a ground for review is non-compliance with a procedural requirement; it is not concerned with the enforcement of prohibitions of a substantive nature, such as an implied requirement that a party not engage in conduct analogous to fraud in connection with the Tribunal’s proceedings;
Adani made no dishonest misrepresentation; and
it was not necessary to answer the other questions.
18 It followed that the appellant failed on ground 1.
19 As to the other grounds, the primary Judge held that:
the Tribunal was not obliged to conduct an inquiry under s 139 of the Native Title Act (ground 2);
the Tribunal was not bound (or entitled) to take into account the information or opinions provided by the appellant (ground 3); and
in s 39(1)(b), the words, “interests, proposals, opinions or wishes of the native title parties”, mean and, in this matter, refer to, “the interests, proposals, opinions or wishes of the three persons whose names appear as the applicant”, in the Register of Native Title Claims (ground 4).
20 This last finding may be a little equivocal. We do not understand the primary Judge to have meant that the Applicant could conduct the proceedings in the interests of those comprising it, to the exclusion of the Claim Group’s interests. Rather, his Honour was saying that the Tribunal would have regard to the position adopted by the Applicant as representing the interests of the Claim Group and, presumably, in accordance with the instructions given by the Claim Group to the Applicant.
21 His Honour dismissed the application for judicial review.
APPEAL GROUNDS
22 The appellant’s grounds of appeal are as follows:
1. The learned primary judge erred (at [196]-[197]) by failing to find that conduct analogous to fraud is capable of constituting fraud for the purposes of s. 5(1)(g) of the [ADJR Act].
2. The learned primary judge erred by concluding (at [200]) that s. 5(1)(b) of the [ADJR Act] did not extend to a procedure that should not be observed, when he should have concluded that it did extend to a procedure that should not be observed .
3. The learned primary judge erred by holding (at [228]) that [Adani] was entitled to "adduce whatever relevant evidence they consider will support their case", in circumstances where:
(a) a specific direction was made by the Tribunal (shown at [27] of the reasons of the learned primary judge) for [the State] and [Adani] to address economic evidence; and
(b) economic evidence was a mandatory consideration for the [Tribunal] under s. 39(1)(c) of the [Native Title Act]; and
(c) the jobs forecast data was a matter peculiarly within the knowledge of [Adani] and its experts.
4. The learned primary judge erred by determining (at [229]) that "to obtain some support from the Fahrer reports, those reports would need to have opined that the Carmichael project had no, or very little economic significance".
5. The learned primary judge erred in failing to give reasons and deal expressly with the Applicant's primary argument that, for the purposes of s. 39(1)(c) of the [Native Title Act], a forecast of 483 jobs was of a materially different magnitude to a forecast of 4,093 jobs, and that [Adani] ought to have advised the [Tribunal] of the magnitude of the difference in forecast jobs to be created by the proposed Project.
6. The learned primary judge erred (at [230]) by failing to find that [Adani's] conduct was analogous to fraud, and was conduct to which s. 5(1)(g) of the [ADJR Act] applied.
7. The learned primary judge erred (at [259]) by holding that the members of the applicant of a registered native title determination application are required to act collectively or jointly under the right to negotiate provisions of the [Native Title Act] when he should have concluded that they are not so required.
8. The learned primary judge erred (at [282] and [298]) by construing the phrase "interests, proposals, opinions or wishes of the native title parties" in s. 39(1)(b) of the [Native Title Act] as being confined to "the interests, proposals, opinions or wishes of the three persons whose names appear as the applicant in the entry on the Register of Native Title Claims" when he should have concluded that the phrase extends to the interests, proposals, opinions or wishes of the native title claim group represented by the applicant for a registered native title determination application.
9. The learned primary judge erred (at [304]) by concluding that the material referred to in paragraph [61] of the [Tribunal’s] reasons for determination "did not express the interests, proposals, opinions or wishes of the native title party" when he should have, on the proper construction of s. 39(1)(b) of the [Native Title Act], concluded that the material did.
10. The learned primary judge erred (at [306)) by construing the phrase "native title parties" in s. 39(1)(a)(i) of the [Native Title Act], and the phrase "those parties" in s. 39(1)(a)(ii)-(iii) of the [Native Title Act], as a reference to the persons whose names appear as the applicant in an entry on the Register of Native Title Claims when he should have concluded that the two phrases extend to the native title claim group represented by an applicant for a registered native title determination application.
23 These grounds fall into two broad categories. Appeal grounds 1-6 deal with the proper construction and application of ss 5(1)(b) and 5(1)(g) of the ADJR Act. Appeal grounds 7-10 deal with the appellant’s entitlement to seek judicial review of the Tribunal’s decision, an issue which involves a close consideration of the relevant terms of the Native Title Act. Although we will address the two categories separately, there are areas in which the relevant considerations overlap.
A DECISION INDUCED OR AFFECTED BY FRAUD – APPEAL GROUND 1
24 As is well known, fraud must be distinctly pleaded and proven. The appellant’s case concerning fraud is difficult to understand. In ground 1 of his application for judicial review, the appellant alleged that Adani dishonestly made a misleading representation, the representation being that the accuracy of the economic material in the EIS was “not subject to dispute”. At para (g) of the particulars, the appellant alleged that it should be inferred that officers or employees of Adani knew that the undisclosed material differed from that in the EIS. At para (h) he alleged that Adani did not, prior to the Tribunal’s decision, disclose the joint report or the further reports, or advise the Tribunal of the existence of such documents. Hence the appellant’s case was that Adani dishonestly misled the Tribunal by not disclosing the latter material. Nonetheless the appellant spent much time, at first instance and on appeal, in trying to establish that for the purpose of s 5(1)(g), “fraud” includes “conduct analogous to fraud”, and that the term, “conduct analogous to fraud” may include conduct which involves no dishonesty. There were references to recklessness, but recklessness was not alleged in the application for review.
25 One might have thought that as a matter of construction, it would be difficult to avoid the conclusion that in a statute, the word “fraud” describes conduct involving some degree of dishonesty. To the ordinary person the word “fraud” necessarily carries that connotation. The expression, “conduct analogous to fraud” has no precise meaning. In cases largely concerned with the remedy of certiorari, it seems to have been used to describe other dishonest conduct such as collusion or perjury. However in R v Home Secretary of State; Ex parte Al-Mehdawi [1990] 1 AC 876 at 896 Lord Bridge said that even without dishonesty, the failure by a prosecutor to advise the defendant of the existence of witnesses favourable to his defence produced the same effect as dishonesty, “in distorting and vitiating the process leading to conviction ...”, such failure being in breach of the prosecutor’s duty to the Court and to the defendant. See also R v Burton upon Trent Justices ex parte Woolley [1995] RTR 139.
26 The ground for relief identified in s 5(1)(g) involves “fraud”, not circumstances or conduct analogous to fraud, whatever may constitute such circumstances or conduct. We do not accept that the ambit of operation of s 5(1)(g) may be extended by asserting that the word “fraud” includes “conduct or circumstances analogous to fraud”. Such an approach would lead to unnecessary uncertainty and would be inconsistent with the language adopted by Parliament. The relevant question is as to the meaning of the word “fraud” in s 5(1)(g).
27 In Seven West Media Ltd v Commissioner, Australian Federal Police (2014) 223 FCR 234 at 257-258 Jagot J observed that the decision of the Full Court in Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 was authority for the proposition that s 5(1)(g) was concerned with deliberate misrepresentation. In our view, her Honour was correct. Although it seems that in Lego, s 5(1)(g) may not have been specifically relied upon, the majority (Beaumont and Whitlam JJ) considered that fraud had been raised by virtue of allegations of lack of good faith, a failure to speak where there was a duty to speak, and abuse of office. The case concerned an ex parte application by a customs officer for the issue of search warrants. In proceedings under the ADJR Act, it was asserted that the applicant bore a duty to make full disclosure to the issuing authority, of all material matters of which he was aware, or ought to have been aware. It seems that in support of that proposition, reliance was placed upon the requirement in civil proceedings that on an ex parte application for relief, the applicant must make full disclosure. At 555 the majority said:
As has been said, in our view, the present question is one of statutory construction and is not to be resolved by reference to the principles of the general law. In particular, the practice in equitable jurisdictions in the grant of discretionary relief, ex parte, in private civil litigation does not, in our opinion, provide an appropriate analogy here. That is to say, in our opinion, the instant matter is to be decided in accordance with the terms, express and implied, of the provisions of s 10(1) of the Crimes Act, properly construed. Those terms are relevantly explained in propositions (1) to (5) extracted above from Rockett's case. Nothing there suggests the existence of a “duty” of disclosure in the informant, breach of which would invalidate the warrant. Indeed the existence of such a principle would be inconsistent with the approach taken in Rockett's case. Under that approach, attention is focused upon the role of the magistrate or justice as the administrative decision-maker in accordance with principles of administrative law. This may be contrasted with the position in private civil litigation where, if ex parte relief is sought, the conduct or misconduct of the party obtaining the relief, rather than the decision-maker, is the relevant consideration. Put differently, the present question is one of public or administrative law; its resolution depends upon the characteristics of the action of the decision-maker, including the processes adopted by him or her and, in the extreme case of “unreasonableness”, the nature of the outcome if perverse.
It is true that, in an exceptional case, an administrative decision may be vitiated by fraud or misrepresentation even at common law (see, eg Sir William Wade, Administrative Law (6th ed, 1988), p 257). The AD(JR) Act itself makes such a provision: see s 5(1)(g). In that special situation, it will be necessary to consider the conduct of the party making application for an administrative decision. But, generally speaking, the role of the court in judicial review is to supervise the activities of the Executive so as to ensure that administrative action takes place in accordance with the rule of law. This supervisory jurisdiction is very different in character from the function of the courts in determining civil disputes between private citizens. In other words, it may be one thing to apply the principles discussed in Edison v Bullock in ordinary civil litigation. It is another to seek to apply them in an application for judicial review of a decision to grant a warrant where the statutory authority to grant the warrant contemplates that the application for it will, necessarily, be made ex parte, yet where the statute also requires, in order to protect the legitimate interests of members of the community, that certain conditions be fulfilled before the warrant may be granted.
It follows, in our view, that there is no general, in the sense of abstract, “duty” of disclosure here. This is not to say that a warrant should not be set aside, as other administrative decisions can be, where there has been fraud or misrepresentation. For this purpose, a statement which was a half-truth and thus misleading (see eg R v Kylsant [1932] 1 KB 442) would be treated, in this, as in other contexts, as a misrepresentation.
Put differently, the primary question here is not whether the informant was under an obligation to disclose to the justice a particular fact, but whether the statements in the Information were sufficient to satisfy the requirements of s 10(1). There is also a question whether the decision to grant the warrant was induced by fraud. It will be convenient to consider these questions separately. The first question will be considered from the standpoint of what appears on the face of the Information, that is, without recourse to any extrinsic material. However, the position in the case of the second question is different. There, since fraud or misrepresentation is alleged, it will be necessary to look at collateral material in order to ascertain whether any representation by the informant was, when measured against the objective circumstances, false.
28 At 563 their Honours said:
In par 25(g) of the amended statement of claim, it is alleged that the ACS officers were aware, or ought to have been aware, of the matters alleged in par 10 thereof. The allegations in par 10 address the dealings between the parties in the period 1978 to 1981. Again, essentially for the reasons given in respect of the allegations made in par 24, we are not satisfied that, in this respect, the ACS officers knowingly misrepresented the position to the decision-maker.
29 In our view, knowing misrepresentation involves more than making a misrepresentation which is factually wrong. It is the misrepresentation which must be knowingly made, suggesting that there must be an intention to mislead. The appellant seems to assert that we should not take this view of s 5(1)(g).
30 In recent years, the question of fraud has been frequently addressed in connection with applications in migration cases for the issue of constitutional writs, or similar relief. In the present case, at first instance and on appeal, the appellant relied heavily upon the dissenting reasons of French J (as his Honour then was) in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365, and the reasons of the Full High Court on appeal. See SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. The case concerned the availability of relief in the nature of certiorari and mandamus. A family seeking protection visas had been represented by a person who falsely claimed to be a solicitor and a migration agent. When the family members were invited by the Refugee Review Tribunal to attend a hearing, the bogus agent advised them not to appear, upon which advice they acted. Their failure to attend led to rejection of their applications. In effect, the question in the case was whether the decision to reject the applications should be set aside for reason of the bogus agent’s conduct.
31 In this Court, French J considered the meaning of the term “fraud” in connection with the availability of certiorari. His Honour also said a little about fraud for the purposes of s 5(1)(g) of the ADJR Act, although there was, in that case, no application pursuant to the ADJR Act. Further the case was clearly one of actual dishonesty. To the extent that French J expressed any view as to the meaning of the term “fraud” in s 5(1)(g), it was, at best, obiter.
32 On appeal the High Court noted the distinction between fraud at common law and in equity, referring to observations by Professor Hanbury to the effect that in equity, the word “fraud” was applied, “indifferently to all failures in relations wherein equity set a certain standard of conduct”. The author also pointed to use of the word in describing the exercise of powers of appointment and other powers, “in a fashion of which equity disapproved”.
33 At [12]-[13], the High Court said:
12 The attachment by courts of equity of the term “fraud”, with related notions of “bad faith” and “abuse of power”, when stigmatising exercises of powers of appointment and fiduciary powers as falling short of the standards equity required of the repositories of those powers, has proved influential in the development of public law. What came to be known as the principle of “Wednesbury unreasonableness” was developed in the case law by analogy to the principles controlling the exercise of powers of discretions vested in trustees and others.
13 However, several points should be made here. First, given the equitable nature of their origins described above, principles of public law concerning impropriety in the exercise of statutory powers have not had the focus upon what might be called the “red blooded” species of fraud which engages the common law. Secondly, with respect to references in the public law decisions to good and bad faith and the like, the following observation in a leading English text is in point:
“These add very little to the true sense, and are hardly ever used to mean more than that some action is found to have a lawful or unlawful purpose. It is extremely rare for public authorities to be found guilty of intentional dishonesty: normally they are found to have erred, if at all, by ignorance or misunderstanding. Yet the courts constantly accuse them of bad faith merely because they have acted unreasonably or on improper grounds. Again and again it is laid down that powers must be exercised reasonably and in good faith. But in this context ‘in good faith’ means merely ‘for legitimate reasons’. Contrary to the natural sense of the words, they impute no moral obliquity.”
Aickin J made observations to similar effect in R v Toohey; Ex parte Northern Land Council.
(Footnotes omitted.)
34 Clearly, the High Court was primarily discussing cases in which complaint was made as to a decision-maker’s conduct.
35 The High Court then turned to the question of fraud by a third party, which fraud had affected an administrative decision, and the availability in those circumstances of, in particular, the remedy of certiorari. The Court noted that in early versions of the migration legislation, judicial review had been limited to circumstances in which a decision was induced or affected by fraud, mirroring the language of s 5(1)(g) of the ADJR Act. The Court accepted that in such a regime, fraud by a third party would attract judicial review of any decision induced or affected by such fraud. The Court then turned to the “nature, scope and purpose” of the prescribed system of review in the case in hand, namely the availability of relief in the nature of certiorari and mandamus.
36 At [40]-[45] the Court set out in detail the circumstances in which the members of the family had failed to attend the hearing in the Refugee Review Tribunal. Clearly, the High Court considered that the case involved actual dishonesty rather than conduct to which no “moral obliquity” could be attached. The New Shorter Oxford English Dictionary defines “obliquity” to mean, “Divergence from right conduct or thought; perversity, aberration ...”. According to the same reference book the word “moral” means, “Of or pertaining to human character or behaviour considered as good or bad”. We infer that “red blooded fraud” would involve a degree of moral obliquity.
37 We turn to decisions of this Court which have applied the decision of the High Court in SZFDE. In Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [30]-[33], the Full Court observed:
30 Even assuming both that the invitation reached the agent and that the agent had undertaken to notify the respondent – his Honour (at [18]) appears to make this latter finding – there is again, in our view, no substratum of facts which would justify the inference that the agent dishonestly omitted to inform the respondent. That failure could as easily be ascribable to oversight or negligence.
31 Counsel for the respondent has sought to avert the above conclusion by contending, in effect, that the fraud inhered in the agent holding himself out to be registered when he was not registered, so depriving the respondent of the services of a registered agent who was subject to the regulatory regime of Pt 3 of the Act. Whether or not the failure to inform the respondent was deliberate or negligent, the agent’s actions as an unregistered person were, it is said, causally connected to the frustration of the procedural fairness scheme of Pt 7 Div 4.
32 We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent’s acts or omissions vis-à-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly effects the Tribunal’s discharge of its imperative statutory functions in a manner which is adverse to a person seeking Tribunal review can in turn be characterised as a “fraud on the Tribunal”.
33 The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.
38 In SZHVM v Minister for Immigration and Citizenship (2008) 170 FCR 211 Middleton J considered both decisions and said at [54]:
Whilst the appeal before me is not simply a case of a failure to inform or mere inadvertence, nor is it to be characterised as a case of fraud vis-à-vis the appellant, nor even then a fraud on the Tribunal. I appreciate, as Finkelstein J in SZIVK [2008] FCA 334 (at [33]) reminds us, that there are many ways in which fraud may be manifested. However, this is not a case where one can infer that the agent, in making the statements to the appellant that resulted in her not attending, acted other than honestly; Mr Marzukie was just concerned about his own interests and put them above those of the appellant.
39 Of course neither case involved an application pursuant to the ADJR Act. Neither the decision in SZFDE nor those in SZLIX and SZHVM addressed conduct of a third party which was not accompanied by moral obliquity. There are many circumstances in which the conduct of a third party might lead a party to proceedings in a court or tribunal to fail to appear when invited or required to do so. These cases suggest, and one would expect, that the relevant conduct would have to be, in some degree, reprehensible if it were to have the effect of invalidating an ensuing decision.
40 In SZFDE at [40]-[42], the High Court recognised the fact that both the Federal Magistrate and French J had identified in detail the dishonest conduct which led to the non-appearance in the Refugee Review Tribunal. At [45]-[46] the High Court identified a further element of dishonesty. Thus it seems that the High Court treated the fraud in that case as being of the “red blooded” kind, rather than conduct commonly described in equity and public law as fraud despite the absence of moral obliquity. We note also that the latter usage seems to occur generally in connection with the conduct of the decision-maker rather than the parties, although it may well include conduct by a government agency, whether a party or not. However, as concerns a third party, the cases seem only to establish that red blooded fraud may lead to the invalidity of an affected decision.
41 As we have said, the question for present purposes is the meaning of the word “fraud” in s 5(1)(g). We have discussed SZFDE and the subsequent cases primarily because the appellant relied so heavily upon the High Court’s reasons and those of French J. However those reasons do not necessarily dictate the proper construction of that provision.
42 Whilst the concept of review pursuant to the ADJR Act is no doubt derived from and, in many respects, analogous to that available pursuant to the prerogative or constitutional writs, it is the language of the statute which defines its operation. Whilst it may be open to courts exercising such supervisory power to, in effect, extend the availability of such relief in order to perform that function, it is not open to this Court to take that step in connection with relief under the ADJR Act. Apart from this consideration, a number of other factors suggest that the word “fraud”, in s 5(1)(g), has a more limited meaning.
43 First, in parts of s 5 other than s 5(1)(g), the ADJR Act expressly addresses conduct of the kind identified in SZFDE as being often described as fraud, notwithstanding the absence of moral obliquity.
44 Secondly, there may be a degree of uncertainty as to how, in this case, the distinction between private and public law is affected by the nature of the function to be performed by the Tribunal, in effect the resolution of a dispute between the State, a proposed developer and a native title applicant. Adopting the words of the High Court in SZFDE at [29], this case will, in the end, require close attention to the nature, scope and purpose of the system of review established by the ADJR Act, having regard to the relevant provisions of the Native Title Act.
45 Thirdly, the decision in SZFDE concerned the dishonest conduct of a third party, that is, a party not directly concerned in the proceedings in question. In the present case, the appellant, a third party, effectively complains about the conduct of one of the parties to the proceedings in the Tribunal, or perhaps all of them, as well as that of the Tribunal itself. Assuming that the Tribunal correctly excluded the appellant from participating in the proceedings, it seems unlikely that he can, on any basis, complain that one party to the proceedings misled the other parties and the Tribunal, when no actual party makes such an allegation. Indeed it is difficult to see how a third party could ever complain that the parties had been misled where none of them so asserts. On the other hand, if the appellant ought to have been allowed to participate in the proceedings, as he may assert in grounds 7-10, he might succeed in upsetting the decision upon the basis of denial of procedural fairness, but not upon the basis that the parties and the Tribunal were misled.
46 The impugned conduct in this case is said to be a representation that the accuracy of the economic material in the EIS was “not subject to dispute”. However the forecasts concerning the economic impact of the project, including the impact on employment, were clearly matters of opinion. Hence the appellant really asserts that Adani represented that the relevant expert opinions were, “not subject to dispute”. One must then enquire as to the meaning of the phrase, “not subject to dispute”. It cannot mean that Adani was representing that no relevant expert, anywhere in the world, would express a different opinion, or that it had no reason to believe that there may be other, contradictory opinions. The appellant’s case, as disclosed in the application for review, was one of dishonest misrepresentation. He pointed to eight factors of which his Honour said at [138]:
Mr Burragubba relied upon eight “multifactorial factors” to attempt to establish that the conduct of Adani’s officers was “dishonest according to ordinary notions”. As outlined in his counsel’s oral submissions, they were:
(a) the significance of the subject matter, for example a criterion that the arbitral body must take into account;
(b) the ease with which the subject matter withheld could have been provided to the decision-maker, for example the three reports in question were, in total, 100 pages in length;
(c) the calibre of the author of the withheld material, for example Dr Fahrer held a PhD from Princeton University in the United States of America and his supervisor was Mr Ben Bernanke, the then chair of the US Federal Reserve;
(d) the stage of the decision-making process at which the material was withheld, for example whether the material was withheld during the decision-making process itself or was not available until a considerable period of time after the decision had been made;
(e) the objective significance of the decision to be made by the decision-maker, for example the grant of a lease for 30 years as compared to the grant of a temporary licence for seven days;
(f) the capacity of the other party to provide the withheld material to the decision-maker, for example material that is readily available in the public domain as compared to material that is commercial-in-confidence to a particular party;
(g) the existence of any relevant expectations in relation to the conduct; and
(h) the ability of the decision-maker to gain access to the withheld material by making his or her own inquiries.
47 It is important to note that the appellant advanced this list of considerations in order to demonstrate that Adani’s officers were dishonest. The list, it seems, was not advanced as the basis for some implied duty to disclose the undisclosed material. The appellant did not, at first instance or on appeal, explain why or how these eight matters, taken together or separately, led to the proper characterisation of any conduct by Adani’s officers as, “dishonest according to ordinary notions”. The words, “according to ordinary notions” suggest to us actual dishonesty and nothing less. Nor did the appellant cross-examine those of Adani’s witnesses who swore affidavits explaining the circumstances in which the joint report and the further reports were obtained and used. The appellant seems to have considered that cross-examination was unnecessary in that he relied upon the contents of their affidavits. Yet it can hardly be asserted that the affidavits disclosed dishonesty.
48 In the end, it was for the appellant to demonstrate that in the circumstances of this case, some substantive or procedural rule required that Adani disclose something more than it would choose to disclose, having regard to its own interests. Whilst we accept that a party may not knowingly mislead the Tribunal, we see no basis for compelling the production of opinion evidence which may arguably have been less favourable to its case than was the EIS.
49 We see no justification in principle for any attempt to extend the meaning of the term “fraud” in s 5(1)(g), beyond its ordinary meaning. In particular, we see no basis, in the absence of any statutory intervention, relevant rule of court or court order, for imposing upon a party to proceedings, in a tribunal or a court, a general duty to disclose unfavourable opinions in its possession. There is no reason to believe that in this case, such disclosure was expected by the Tribunal, or by the other parties, or that any such expectation would have been justified.
50 In any event, the primary Judge concluded that the appellant’s submissions concerning conduct analogous to fraud were simply irrelevant, and that the appellant’s case was fraud or nothing. We agree. On appeal, the appellant submits that the primary Judge erred, “by failing to find that conduct analogous to fraud is capable of constituting fraud for the purposes of s 5(1)(g)” of the ADJR Act. His Honour made no such finding. He simply understood the appellant’s case to be one of fraud, not conduct analogous to fraud. We agree that there was no alternative basis raised in the application for judicial review. If fraud were not proven, the appellant might yet have established the inferences pleaded in para (g) of the particulars, but we do not accept that mere non-disclosure constituted, in this case, fraud or conduct analogous to fraud.
51 As far as we are aware, those responsible for preparing the EIS have not resiled from their views. Further, the views expressed by Dr Fahrer and Mr Campbell concerned issues raised by one of the respondents in the Land Court proceedings. It seems that such issues were not raised in the Tribunal. Finally, the appellant has not sought to demonstrate the merits of his complaint by reference to witnesses who understand the relevant areas of expertise and the contents of the EIS and the further reports. He has rather formed his own views about evidence concerning theoretical exercises, in respect of which neither the Tribunal nor he had any expertise.
52 The appellant seems to assume that Adani should necessarily have abandoned the EIS in face of Dr Fahrer’s criticisms. We accept that a party may not consciously allow a court or tribunal to act upon evidence which it knows to be false. However there is a clear distinction between knowing that a witness has lied about something, and knowing that expert opinions differ about a particular matter. Where expert opinion is involved, the court or tribunal, and the parties are very much in the hands of the experts. If the appellant wished to prove misleading effect, he could do so only by showing that the material in the EIS was misleading in a material respect. He could not do so simply by demonstrating the existence of conflicting opinions, assuming that the undisclosed material was, in fact, inconsistent with the relevant material in the EIS.
53 In the end, the primary Judge found that there had been no dishonestly misleading conduct by Adani, and that the Tribunal had not been misled. There is no express appeal against either finding.
54 Appeal ground 1 must fail.
OTHER appeal grounds
55 Appeal ground 2 asserts that the primary Judge erred in concluding that s 5(1)(b) of the ADJR Act was not engaged. Although it is not clear from the notice of appeal, this ground deals with the conduct said to have engaged s 5(1)(g). The submission seems to be that there was a procedural requirement that Adani (or any other party) not engage in fraudulent conduct in proceedings in the Tribunal. Given our rejection of the appellant’s characterization of that conduct as fraudulent, it is not strictly necessary that we consider this ground. However we note that s 5(1)(b) refers to procedures required by law to be observed in connection with the making of the relevant decision. We accept that there was a duty to avoid misleading the Tribunal. However a “duty” is not readily described as a “procedure”. The New Shorter Oxford English Dictionary defines the word “procedure” to mean:
The fact or manner of proceeding; a system of proceeding; conduct; behaviour; spec (a) Law the formal steps to be taken in a legal action; the mode of conducting judicial proceedings ...
56 We consider that in s 5(1)(b), the word is used in the legal context addressed in this definition, adjusted as necessary so as to apply to the conduct of matters in the Tribunal. Any duty to refrain from misleading the Tribunal is not a procedure in the sense contemplated in s 5(1)(b). We note in this respect the decision of the Full Court in Minister for Health and Family Services v Jadwan Pty Ltd (1998) 89 FCR 478 at 494 and Greenpeace Australia Pacific Ltd v Chief Executive Officer of the Australian Radiation Protection and Nuclear Safety Agency (2002) 125 FCR 186 at [64] where Beaumont J cited Jadwan for the proposition that the ground of review described in s 5(1)(b) is available only in a procedural context.
57 Appeal ground 2 must fail.
58 Appeal ground 3 challenges the primary Judge’s view that litigants are, “generally entitled to adduce whatever relevant evidence they consider will support their case”. Such an approach may not be true in all cases. However the present case concerned, in effect, an arbitration to which there were three parties. One can only assume that they were well aware of the matters in dispute and proceeded accordingly. We accept that given the public nature of the proceedings, the Tribunal may have been obliged to take into account matters which were not dealt with by the parties, or to deal with matters in ways not suggested by the parties. Provided the Tribunal observed the rules of procedural fairness, it may have made its own enquiries. However it did not do so, at least as far as we know. In the application for judicial review, the appellant alleged that the Tribunal failed to make obvious enquiries. The primary Judge found against the appellant. There is no appeal against that decision.
59 The appellant asserts that, “the freedom of a party to select or withhold evidence in its possession to advance its case is inconsistent with contemporary case management principles and norms of judicial adjudication”. In support of that proposition reference is made to various articles and decisions. The decisions offer no support for the proposition. They relate to the identification of issues, not obligations concerning the presentation of evidence. There is no reason to depart from the propositions advanced by Kyrou AJA, with whom Weinberg and Harper JJA agreed, in Forster v Legal Services Board (2013) 40 VR 587 at [160] and [161] as follows:
160 Before considering the above grounds, it is necessary to briefly outline the elements of a legal practitioner's duty of honesty and candour to the Court that underlie some of the grounds.
161 In Meek v Fleming, Holroyd Pearce LJ agreed with the proposition that while a lawyer must not knowingly mislead the Court as to the facts or the law, he or she may put such matters as he or she believes will best advance the client's case. A party need not reveal something to the discredit of that party. However, this does not mean that the party can by implication falsely pretend that a particular state of affairs exists, and knowing that the court has been misled with respect to a material matter, foster and confirm the misrepresentation through answers given by the party. A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the Court and thereby breach his or her duty to the Court. Once a misleading impression has been created, even if innocently, the lawyer has an obligation to correct that impression as soon as he or she becomes aware of the true position. That obligation continues until judgment is given.
(Footnotes omitted.)
60 His Honour was referring to the obligations of legal advisers, but the rights and duties discussed were those of the relevant party. The legal advisers exercised the rights and performed the duties on the party’s behalf.
61 Notwithstanding the wording used by the Tribunal in its directions as to evidence, the intention was to facilitate the disclosure, to the other parties, of the evidence to be led. That was a matter of choice for Adani. The wording of s 39 of the Native Title Act may have led the parties to consider whether to lead evidence as to particular matters. However, neither s 39 nor the Tribunal’s directions compelled any party to provide such evidence, unless that party wished to rely on it. As to the assertion that the employment forecasts were peculiarly within Adani’s knowledge, that proposition was only true to the extent that the other parties allowed it to be so. It was open to them to find their own evidence concerning such matters.
62 Appeal ground 3 must fail.
63 In appeal ground 4, the appellant asserts that the primary Judge erred in concluding, that to obtain some support from the joint report and the further reports, those reports would need to have opined that, “the Carmichael project had no, or very little economic significance”. It is difficult to understand the point which the primary Judge was making at this point in his reasoning. It is also difficult to understand the point being made on appeal. The relevant passage appears in his Honour’s consideration of one of the questions which he had posed in connection with ground 1 of the application for review. That question was whether Adani made dishonest or misleading representations to the Tribunal. His Honour concluded that it had not done so. At [229], the primary Judge observed that the decision in SZFDE suggested that some degree of procedural unfairness was necessary in order that a court should intervene, “in the manner contended for” by the appellant. Procedural fairness was of particular importance in SZFDE because of the procedures prescribed by the Migration Act 1958 (Cth). See SZFDE at [30]-[37]. As far as we can see, no question of procedural fairness arises out of appeal grounds 1-6, although some such question may arise out of grounds 7-10.
64 It may be that the primary Judge was considering the general effect upon the appellant of the fact that the Tribunal was not aware of the contents of the joint report and the further reports. In the primary Judge’s reasons at [229] his Honour considered whether the appellant may have suffered unfairness as a result of the joint report and the further reports not being before the Tribunal. His Honour noted that the appellant’s opposition to the Adani project was based on its alleged effect on native title rights and interests, not questions of economic benefit and employment opportunities. His Honour’s point seems to have been that, given that the appellant’s contribution to the proceedings would not have concerned those matters, he suffered no procedural unfairness as the result of non-disclosure of the reports. In other words, even had Adani been obliged to disclose the material, the appellant could not have complained of procedural unfairness arising out of its failure to do so, unless the effect of the undisclosed material so undermined the EIS that it was irrelevant to the decision-making process, and therefore ought not to have been taken into account.
65 His Honour concluded that it was the overall effect of the economic information which was relevant to the Tribunal’s decision, and not some discrete part of it, such as the predicted employment effect. There is no reason to doubt that the case in the Tribunal was conducted on that basis. If so, it is difficult to see how the appellant can complain about the matter, unless he was entitled to be heard in the Tribunal. In reality the point seems merely to raise a submission which the appellant may have made, had he been heard. If he were to succeed on any of appeal grounds 7-10, it may follow that he would have had a right to be heard in the Tribunal. By itself, ground 4 goes nowhere.
66 Appeal ground 4 must fail.
67 As to appeal ground 5, our conclusion that Adani was not obliged to disclose the undisclosed material, disposes of it. Further, the appellant’s complaint seems to be that the primary Judge failed adequately to explain why the different forecasts of employment effect were not of a “materially different magnitude”, or to deal expressly with that matter. This ground of appeal assumes that a difference between experts on one aspect of a report must necessarily undermine it for all purposes. As his Honour saw his task, it was to determine whether the Tribunal’s decision was induced or affected by non-disclosure of the joint report and the further reports as they concerned the employment effect and associated matters. His Honour concluded that the overall effects of the disclosed and undisclosed material were, for all relevant purposes, substantially the same. The appellant has not sought to demonstrate otherwise, nor has he suggested that his Honour erred in identifying that enquiry as being the relevant enquiry for present purposes. Once again, if the appellant establishes that he should have been heard by the Tribunal, he will be able to raise these issues at any rehearing.
68 Appeal ground 5 must fail.
69 Appeal ground 6 only restates appeal grounds 1 and 2. We need not say any more about it. It must also fail.
APPEAL GROUNDS 7-10
70 The remaining appeal grounds (appeal grounds 7-10) raise arguments directly relating to the proper construction of subdiv P of Div 3 of the Native Title Act. As noted subdiv P deals with the right to negotiate in relation to certain future acts as defined in the Native Title Act. Div 3 relate to future acts.
71 The appellant complains that the primary Judge was wrong to reject the contention that the Tribunal failed in the discharge of its obligations by ignoring the content of submissions he and Ms Bobongie made to the Tribunal, even though the Applicant expressly chose not to make any such submissions. For the following reasons the primary Judge was correct to conclude that the Tribunal did not err in any respect. We also agree with the reasoning of the primary Judge.
STATUTORY FRAMEWORK
72 The “right to negotiate” provisions in subdiv P of the Native Title Act are central to the appellant’s argument.
73 Section 24AA of the Native Title Act, by way of overview, explains that the Division deals mainly with future acts, which are defined in s 233. Acts that do not affect native title are not future acts. Section 227 explains the meaning of acts that affect native title.
74 By s 24AA(3) of the Native Title Act, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not. And by s 24AA(3), a future act will be valid if the parties to certain agreements (indigenous land use agreements or ILUAs: see subdivs B, C and D) consent to it being done and, at the time it is done, details of the agreement are on the Register of Indigenous Land Use Agreements. An ILUA, details of which are on the Register, may also validate a future act (other than an intermediate period act) that has already been invalidly done.
75 There are also certain specific future acts which will also be valid and which are not relevant to this appeal.
76 By s 24AA(5), in the case of certain acts covered by s 24IC (permissible lease etc. renewals) or s 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of subdiv P (which provides a “right to negotiate”).
77 After those preliminary provisions there are numerous subdivisions dealing with ILUAs and future acts at a more general and specific level. Then there is subdiv P commencing with s 25 which contains a further overview of subdiv P. Section 25(1) of the Native Title Act provides:
(1) In summary, this Subdivision applies to certain future acts done by the Commonwealth, a State or a Territory that are of any of the following kinds:
(aa) certain acts covered by section 24IC (which deals with permissible lease etc. renewals);
(a) certain conferrals of mining rights;
(b) certain compulsory acquisitions of native title rights and interests;
(c) other acts approved by the Commonwealth Minister.
78 By s 25(2) of the Native Title Act, before a future act is done, the parties must negotiate with a view to reaching an agreement about the act. Further, by ss 25(3), 25(4) and 25(5):
(3) If they do not reach agreement, an arbitral body, or a Minister, will make a determination about the act instead.
(4) If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.
(5) States and Territories may make their own laws as alternatives to this Subdivision. The Commonwealth Minister must be satisfied as to certain matters before such laws can take effect.
79 Section 26 of the Native Title Act stipulates when subdiv P applies.
80 Section 28 of the Native Title Act provides:
28 Act invalid if done before negotiation or objection/appeal etc.
(1) Subject to this Act, an act to which this Subdivision applies is invalid to the extent that it affects native title unless, before it is done, the requirements of one of the following paragraphs are satisfied:
(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;
(c) subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;
(d) a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;
(e) native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);
(f) an agreement of the kind mentioned in paragraph 31(1)(b) is made;
(g) a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with;
(h) a determination that the act must not be done is declared to be overruled in accordance with section 42.
…
81 Section 29 of the Native Title Act is critical to the operation of the subdivision. It provides for notification of the act to be given to parties affected, relevantly, in these terms:
Notice in accordance with section
(1) Before the act is done, the Government party must give notice of the act in accordance with this section.
Persons to be given notice
(2) The Government party must give notice to:
(a) any registered native title body corporate (a native title party) in relation to any of the land or waters that will be affected by the act; and
(b) unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:
(i) any registered native title claimant (also a native title party); and
Note: Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.
(ii) any representative Aboriginal/Torres Strait Islander body;
in relation to any land or waters that will be affected by the act; and
(c) if the doing of the act has been requested or applied for by a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied)—that person (a grantee party); and
(d) the registrar or other proper officer of the arbitral body in relation to the act.
…
82 Section 30 of the Native Title Act specifies who is a native title party. It provides:
(1) Each of the following is also a native title party:
(a) any person who, 4 months after the notification day (see subsection 29(4)), is a registered native title claimant in relation to any of the land or waters that will be affected by the act, so long as:
(i) the application containing the claim was filed in the Federal Court, or given to the recognised State/Territory body, before the end of 3 months after the notification day; and
(ii) the claim related to any of the land or waters that will be affected by the act;
Note: The note to subparagraph 29(2)(b)(i) explains who can be a registered native title claimant.
(b) any body corporate that, 3 months after the notification day, is a registered native title body corporate in relation to any of the land or waters that will be affected by the act;
(c) any body corporate that becomes a registered native title body corporate in relation to any of the land or waters that will be affected by the act:
(i) after the end of that period of 3 months; and
(ii) as a result of a claim whose details were entered on the Register of Native Title Claims before the end of that period of 3 months.
Ceasing to be a native title party
(2) A person ceases to be a native title party if the person ceases to be a registered native title claimant.
Note: If a native title claim is successful, the registered native title claimant will be succeeded as a native title party by the registered native title body corporate.
Registered native title rights and interests
(3) For the purposes of this Subdivision, the registered native title rights and interests of a native title party are:
(a) if the native title party is such because an entry has been made on the National Native Title Register—the native title rights and interests described in that entry; or
(b) if the native title party is such because an entry has been made on the Register of Native Title Claims—the native title rights and interests described in that entry.
Replacing a native title party
(4) If:
(a) a person becomes a registered native title claimant because the person replaces another person as the applicant in relation to a claimant application; and
(b) the other person is a native title party;
the first-mentioned person also replaces the other person as the native title party.
83 Section 30A of the Native Title Act then specifies that “each of the following is a negotiation party”:
(a) the Government party;
(b) any native title party;
(c) any grantee party.
84 There are then machinery and timing provisions in ss 31-36C which do not have a direct bearing on the arguments on appeal.
85 Section 37 of the Native Title Act specifies that there will be no arbitral body determination if there has been an agreement or Ministerial determination.
86 Section 38(1) of the Native Title Act specifies the kinds of arbitral body determinations, relevantly, in these terms:
(1) Except where section 37 applies, the arbitral body must make one of the following determinations:
(a) a determination that the act must not be done;
(b) a determination that the act may be done;
(c) a determination that the act may be done subject to conditions to be complied with by any of the parties.
…
87 Section 39 of the Native Title Act is central to the appeal and stipulates what the Tribunal must take into account. It relevantly provides:
(1) In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i) the enjoyment by the native title parties of their registered native title rights and interests; and
(ii) the way of life, culture and traditions of any of those parties; and
(iii) the development of the social, cultural and economic structures of any of those parties; and
(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e) any public interest in the doing of the act;
(f) any other matter that the arbitral body considers relevant.
Existing non-native title interests etc.
(2) In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a) existing non-native title rights and interests in relation to the land or waters concerned; and
(b) existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3) Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect
(4) Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.
(emphasis added)
88 The remaining provisions in subdiv P deal with consequential matters and exceptions, including the effect of a determination or agreement (s 41) and overruling of determinations (s 42).
NATIVE TITLE ACT GROUNDS BEFORE THE PRIMARY JUDGE
89 Before the primary Judge, the appellant argued (by what was then ground 3) that the decision was an improper exercise of power reposed in the Tribunal in that when making the decision, the Tribunal failed to take into account a relevant consideration being material related to the matters set out in ss 39(1)(a)(i)-(iii) and 39(1)(b)-(e) of the Native Title Act, namely, the statements that the appellant and Ms Bobongie had submitted to the Tribunal.
90 It was also argued (by what was then ground 4) that the decision involved an error of law, in that the Tribunal erroneously concluded that the reference to “native title party” in the criteria of s 39(1) was a reference to the persons collectively comprising the Applicant in the Wangan and Jagalingou application when the Tribunal should have concluded that the term was a reference to the members (as in individual members) of the Claim Group or the native title party for the Wangan and Jagalingou application.
91 The grounds as advanced before the primary Judge were framed differently from those argued on appeal, but the reasoning of the primary Judge is directly relevant to the appeal grounds and requires examination.
THE PRIMARY JUDGMENT ON NATIVE TITLE ACT GROUNDS
92 Ground 4 was dealt with at some length and before ground 3 in his Honour’s reasons. It raised the issue which arises on appeal, namely, the appellant’s contention that the reference to “native title parties” in s 39(1) of the Native Title Act is a reference to the members of the native title claim group or the native title party, rather than a reference to the persons collectively comprising the applicant in the application.
93 The appellant contended that individual members of that claim group could represent their “interests, proposals, opinions or wishes” to the Tribunal. As the application for determination being a representative proceeding, the “interests, proposals, opinions or wishes” mentioned in s 39(1)(b) were therefore said to be fundamentally those of the native title claim group.
94 The primary Judge noted (ultimately favourably) Adani’s submissions to the contrary (which are repeated on appeal), including that:
(a) the submissions made by the appellant and Ms Bobongie to the Tribunal were not made as a native title party, but as members of the Families Council, which it claimed was a subset of the native title claim group, not the native title party as such;
(b) the Tribunal had rejected the submission for reasons unconnected with its interpretation of the expression “native title party”;
(c) the Tribunal had not erred in construing the expression “native title parties” as that expression in s 39(1)(b) of the Native Title Act is a reference to the registered native title bodies corporate and the registered native title claimants in their representative capacity, such that they were required to reflect the “interests, proposals, opinions or wishes” of the common law native title holders or the native title claim group respectively. Were it otherwise, the Tribunal could be faced with multiple conflicting accounts of the “interests, proposals, opinions or wishes” of individual members; and
(d) such an approach had been applied consistently by the Tribunal for the past 15 years.
95 After referring to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (at [69]) and subsequent authorities following it, his Honour turned to examine the primary purpose of the of the Native Title Act, noting that it was to recognise and protect native title. His Honour referred to the objects provisions in s 3, s 4 and s 10 of the Native Title Act.
96 The primary Judge noted that native title is ordinarily communal in nature as was recognised in the observations of Deane and Gaudron JJ in Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)) (at 109–110).
97 The primary Judge also examined the role of the right to negotiate provisions in advancing the protective purpose of the Native Title Act as identified in the Preamble, which recognised the objective of making every reasonable effort to secure the agreement of native title holders through a special right to negotiate. His Honour cited Western Australia v Ward (1996) 70 FCR 265 per Lee J, where Lee J observed (at 271) that for the purpose of the right to negotiate provisions in subdiv P:
… [T]he expression ‘native title party’ appears to be treated as equivalent to ‘native title holder’ [used in the Preamble of the Native Title Act] and is not dependent on the holding of native title being determined under the Act.
98 His Honour then addressed the statutory provisions, noting the right to negotiate provisions appear in subdiv P. He referred to s 24AA of the Native Title Act and the definition of “future act” in s 233 of the Native Title Act. That definition relevantly provides:
Definition
(1) Subject to this section, an act is a future act in relation to land or waters if:
(a) either:
(i) it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or
(ii) it is any other act that takes place on or after 1 January 1994; and
(b) it is not a past act; and
(c) apart from this Act, either:
(i) it validly affects native title in relation to the land or waters to any extent; or
(ii) the following apply:
(A) it is to any extent invalid; and
(B) it would be valid to that extent if any native title in relation to the land or waters did not exist; and
(C) if it were valid to that extent, it would affect the native title.
…
(Emphasis in original)
99 The primary Judge also observed that the word “act” is central to the operation of the above definition and, indeed, that of the Native Title Act as a whole. His Honour noted that “act” is defined in s 226 as follows:
Section affects meaning of act in references relating to native title
(1) This section affects the meaning of act in references to an act affecting native title and in other references in relation to native title.
Certain acts included
(2) An act includes any of the following acts:
(a) the making, amendment or repeal of any legislation;
(b) the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;
(c) the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;
(d) the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;
(e) the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;
(f) an act having any effect at common law or in equity.
Acts by any person
(3) An act may be done by the Crown in any of its capacities or by any other person.
(Emphasis in original)
100 Further, the expression “act affecting native title” used in the above definition and as mentioned in s 24AA(1) above is also explained in s 227 as follows:
An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.
(Emphasis in original)
101 The primary Judge observed that for the purposes of this matter it was important to note the significant roles both the right to negotiate provisions (in subdiv P) and the ILUA provisions (in subdivs B, C and D of the Native Title Act) play within the “future acts” provisions of Div 3. Those roles are highlighted in the overview of Div 3 set out in s 24AA. With respect to the ILUA provisions, s 24AA(3) states that: “[a] future act will be valid if the parties to certain agreements (called indigenous land use agreements - see Subdivisions B, C and D) consent to it being done …”. As noted, with respect to the right to negotiate provisions, s 24AA(5) states:
In the case of certain acts covered by section 24IC (permissible lease etc. renewals) or section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a “right to negotiate”).
102 His Honour considered there were important parallels between these two sets of future act provisions of Div 3. His Honour noted that they both use a similar expression to describe the native title entity that is involved. The ILUA provisions use the expression “native title group” (see s 24CD(2)) and the right to negotiate provisions use the expression “native title party” (see s 29(2)).
103 Further his Honour said:
(a) where that entity is acting on behalf of a native title claim group, both sets of provisions use the concept of the registered native title claimant in a similar way. For example, insofar as an ILUA area agreement is concerned, s 24CD(2) prescribes that the native title group consists of “all registered native title claimants in relation to land or waters in the area”;
(b) similarly, s 29(2)(b) of the right to negotiate provisions identifies “any registered native title claimant … in relation to any land or waters that will be affected by the act” as a native title party; and
(c) both sets of provisions provide that, where a native title claim group is involved, its members are bound by any agreement reached: with respect to ILUAs, by s 24EA and with respect to agreements or determinations made under the right to negotiate provisions, by s 41(2).
104 Nonetheless, the primary Judge observed there were at least two major differences between these two sets of provisions. They were that the making of an ILUA must be authorised by those who hold, or may hold, the native title concerned in accordance with s 251A. Further, to have effect, an ILUA must be registered on the Register of Indigenous Land Use Agreements (see s 199A to s 199F). The right to negotiate provisions do not contain any equivalent provisions.
105 His Honour observed that the registered native title claimant plays a similar, albeit different, role in each. His Honour referred to his decision in QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412, where he considered the role of the registered native title claimant under the ILUA provisions of the Native Title Act, particularly as they related to indigenous land use area agreements under subdiv C. In the course of that decision, his Honour noted the “complex and unique cultural and legal environment” that existed with respect to the ILUA provisions of the Native Title Act, concluding that, in those provisions, the registered native title claimant was used to provide a statutory mechanism or device by which a large, unincorporated group of indigenous persons with fluctuating membership and undetermined native title rights and interests could enter into an ILUA: see Bygrave (No 2) (at [69]). His Honour considered the registered native title claimant had a similar role under the right to negotiate provisions of the Native Title Act.
106 That said, his Honour opined that under the right to negotiate provisions the registered native title claimant plays a far more active and fundamental role as the right to negotiate process is both reactive and relatively short-lived. That is to say, it arises in response to a specific proposal by a Government party associated with particular kinds of future acts. Furthermore, the time limits prescribed in ss 35(1)(a) and 36 require that the negotiations, or proceedings before an arbitral body failing an agreement, be undertaken expeditiously. Thus, his Honour said, it was implicit from those provisions that the registered native title claimant was required to actively participate in the good faith negotiations prescribed by s 31 and to do likewise in any right to negotiate proceedings that ensue before the Tribunal. It is also implicit, his Honour said, from s 31(1)(b) and s 41(1) and (2) that the registered native title claimant has the authority to enter into an agreement on behalf of the members of the native title claim group if such an agreement is reached as a result of the good faith negotiations.
107 His Honour said that such differences necessarily affect the role the registered native title claimant has under the right to negotiate provisions of the Native Title Act. Specifically, whereas the members of the registered native title claimant are not required to act collectively or jointly or otherwise under the ILUA provisions (see Bygrave (No 2)) (at [88])) (but see McGlade v Native Title Registrar (2017) 340 ALR 419 at [492]), the opposite is the case under the right to negotiate provisions. Under the latter provisions, therefore, their role is more closely aligned to that of the alter ego of the registered native title claimant, the applicant, his Honour said.
108 After referring to Bullen v State of Western Australia (1999) 96 FCR 473 (at [37]), his Honour observed, in summary, that for present purposes, the scheme that is established by the provisions of subdiv P has the following salient features:
(1) The Government party must obtain the agreement of the native title party to the future act being undertaken. To that end, the Government party, the grantee party and the native title party must conduct negotiations with the object of reaching such agreement.
(2) Those negotiations must be conducted in good faith with particular respect to the effect the proposed future act has on the native title party’s registered native title rights and interests.
(3) If the negotiations fail to achieve the agreement of the native title party, any negotiation party may apply to the Tribunal for a determination that the act must not, or may, proceed.
(4) In the event that such an application is made, only the Government party, the grantee party and the native title party are parties to those proceedings and therefore only those parties are entitled to appear at a hearing, to submit materials to the Tribunal, or to appeal any decision if they are dissatisfied with it.
(5) The negotiations must be conducted promptly, that is, concluded within six months, and, if an application is made for a determination under s 38, that determination must be made by the Tribunal as soon as practicable. Furthermore, the Tribunal is required to perform its functions in “a fair, just, economical, informal and prompt way” (s 109(1)).
109 The primary Judge had regard to s 61 of the Native Title Act. His Honour noted that with respect to the expression “the applicant”, s 61(2)(a) and s 61(2)(c) relevantly state:
(2) In the case of:
(a) a native title determination application made by a person or persons authorised to make the application by a native title claim group;
…
the following apply:
(c) the person is, or the persons are jointly, the applicant;
…
110 His Honour said that s 61(2)(d) makes it clear that none of the other members of the Claim Group is the Applicant. These provisions correspond with those in s 61(1) relating to the person or persons who will be the applicant. His Honour then explained, once the Native Title Registrar receives a claimant application in accordance with the provisions of s 190A, he or she must consider the application and any supporting documents. The Registrar must then decide whether or not to accept the application for registration. His Honour discussed the registration process, noting that as indicated by the Note in s 186(1), the entry mentioned in s 186(1)(d) describes the registered native title claimant. Further, the entry mentioned in s 186(1)(g) describes the registered native title rights and interests, which brings one back to the registry entry described in s 30(3)(b).
111 After the primary Judge dealt with the broader statutory context within which s 39 of the Native Title Act is found, his Honour examined the text of s 39(1)(b) and concluded (at [282]):
Having regard to all these aspects of the text, context and purpose of s 39(1)(b) and, in particular, to the connections between the definition of native title party above, the reference to the expression “registered native title claimant” in s 29(2)(b)(i), the definition of that expression in s 253 of the NTA, the registration process that leads to a claim being registered on the Register of Native Title Claims, the particular entries in that Register that correlate to the defined expressions “registered native title claimant” (s 186(1)(d)) and “registered native title rights and interests” (s 186(1)(g)), and the contents of those two entries with respect to the Wangan and Jagalingou application (see […] above, respectively), I consider the words “interests, proposals, opinions or wishes of the native title parties” in s 39(1)(b) mean and refer, in this matter, to the interests, proposals, opinions or wishes of the three persons whose names appear as the applicant in the entry on the Register of Native Title Claims relating to the Wangan and Jagalingou application, namely [the appellant], Patrick Malone and Irene White. Further, I consider the purpose and scheme of the right to negotiate provisions of the NTA requires that, where more than one person comprises the native title party/registered native title claimant, those persons must act collectively in discharging their role. …
(Emphasis added)
112 The primary Judge further summarised his reasons for that conclusion on this basis:
(a) if s 39(1)(b) were intended to require the Tribunal to take into account the interests, proposals, opinions or wishes of the native title claim group, the contrasting and defined expression “native title claim group” would have been used instead of the defined expression “native title party” in the text of that section;
(b) the text of s 39(1)(b) also states with clarity what particular interests, proposals, opinions or wishes have to be taken into account. That is, those related to the “management, use or control” of a closely defined area of land or waters: the area of land or waters in relation to which there are registered native title rights and interests that will be affected by the future act described in the s 29 notice. This confined and quite specific focus of s 39(1)(b) is exemplified, in this matter, by the fact that the two mining leases described in the s 29 notice cover approximately 185 square kilometres, whereas the claim area of the Wangan and Jagalingou application is 30,277.6 square kilometres;
(c) that the text of s 39(1)(b) requires the Tribunal to take account of the interests, proposals, opinions or wishes of the native title party with respect to this very specific topic is consistent with the context of that section. The criteria in s 39(1) only come into effect following the failure of good faith negotiations conducted under s 31. At this post-negotiation stage, the issue for determination is whether the act specified in the s 29 notice should proceed notwithstanding the lack of agreement from the native title party. His Honour noted that while that issue must be determined by reference to the criteria in s 39(1), it was significant for present purposes that s 39(4) provides that those criteria may be displaced by an agreement reached between the negotiation parties on any issues relevant to the arbitral body’s determination under s 38. It necessarily followed that, as a negotiation party, the native title party will have a unique insight to those issues; and
(d) since the combined effect of s 30(3) and s 31(2) is that the registered native title rights and interests of the native title party, as defined in the former section, are central to the good faith negotiations that must be conducted under the latter section, the native title party is also likely to have a unique perspective about the management, use or control of the defined area of land and waters. Conversely, these textual and contextual factors explain why s 39(1)(b) is not concerned with the views of the native title claim group as a whole, nor about the effect of the particular future act on all the land or waters covered by the native title claim group’s claim, nor its effect on the native title rights and interests of the native title claim group more broadly.
113 For these reasons, the primary Judge rejected the appellant’s construction of the words “interests, proposals, opinions or wishes of the native title parties” in s 39(1)(b).
114 His Honour also summarised his reasons for concluding that, if the native title party is comprised of a number of persons, they are required to act together collectively in discharging their role. He considered (at [288]) that conclusion was dictated by the need for the right to negotiate provisions of the Native Title Act to:
operate effectively and expeditiously in the interests of the native title claim group which the native title party/registered native title claim group represents. In other words, it is a construction which serves to advance the protective purpose of the right to negotiate provisions of the NTA. This accords with the requirements of s 15AB of the Acts Interpretation Act 1901 (Cth). However, as well as advancing this purpose, it is also supported by a number of textual and contextual considerations in the NTA as follows.
115 His Honour went on to explain (at [289]-[291]):
(a) the definition of native title party in s 253 is expressed in the singular. This suggests that, where it comprises more than one person, it is still intended to operate as a single entity, or a collection of single entities where there is more than one native title party/registered native title claimant. The latter may occur where there are overlapping claims to the area to which the s 29 notice relates, or where the future act described in the s 29 notice relates to a large area of land and there are multiple claims covering that area. This explains why the word “any” appears before the expression “registered native title claimant” in s 29(2)(b)(i). That word did not, the primary judge said, mean or refer to the individuals comprising the registered native title claimant. His Honour also held that the word “any” in s 30(1)(a) did not refer to the individual persons comprising the registered native title claimant. The addition of the words “any person” in s 30(1)(a) could not alter the meaning of the expression “registered native title claimant” as it is defined in s 253;
(b) both s 61(3) and the entry prescribed by s 186(1)(d) refer to an “address for service” singular. His Honour considered that this also suggests that, where the notice under s 29 has to be given to any registered native title claimant (s 29(2)(b)(i)), all the persons comprising that entity are to be served at that one address, not individually at their separate individual addresses; and
(c) the native title claimant is a statutory mechanism or device to provide an individual, or a defined group of persons, to conduct the negotiations required with respect to a s 29 notice on behalf of the native title claim group, to enter into a binding agreement on behalf of that group if those negotiations are successful, or to represent its interests in any right to negotiate application that ensues if they are unsuccessful. The nature of this role requires the members of a native title party to form and maintain a united position and the relatively strict time limits requires them to act with expedition. The members of the native title party/registered native title claimant are therefore required to take an approach which involves “a communal enterprise or system, working towards the common good, as opposed to one admitting competition between individuals” (Macquarie Dictionary, 4th ed), namely a collective approach. This approach is also consistent with the communal nature of native title, the protection of which is the primary purpose of the Native Title Act.
116 The primary Judge said that, conversely, if each of the individuals comprising a native title party were able to act individually in discharging this role, the right to negotiate provisions of the Native Title Act would become unworkable.
117 His Honour referred to Ankamuthi People v Queensland (2002) 121 FCR 68 (at [8]) in which Drummond J emphasised that an applicant was authorised to discharge its role without interference by, or intervention from, any other members of the native title claim group and in 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]) where Stone J said that the members of an applicant are:
… representatives of the claimant group; they have no personal interest other than as members of the claimant group and for this reason their interests do not differ from each other or from the claimant group and separate representation [for each of them individually] is inappropriate and unacceptable.
118 In considering what was then ground 3, the primary Judge noted (at [304]) that:
(a) the native title party’s legal representative informed the Tribunal that it had reached a unanimous decision not to make any submissions with respect to Adani’s right to negotiate applications;
(b) the legal representative for the native title party informed the Tribunal that its view was that the appellant’s statement should not be considered by the Tribunal; and
(c) the statements from the appellant and Ms Bobongie did not express the interests, proposals, opinions or wishes of the native title party. Indeed, they were submitted on behalf of the Families Council or the “Wangan and Jagalingou Representative Group”. Whether those two bodies are the same or different, or even a subset of the native title claim group, does not affect the fact that they did not emanate from the native title party.
119 The primary Judge held that the Tribunal therefore made no error in not taking those statements into account under s 39(1)(b).
120 His Honour noted that the position with respect to s 39(1)(a)(i) to (iii) of the Native Title Act was, however, slightly different. Those criteria were not so specifically confined in their scope and subject matter as s 39(1)(b). While s 39(1)(a)(i) does refer to the registered native title rights and interests, the other two subsections refer more broadly to the “life, culture and traditions” of those parties (s 39(1)(a)(ii)) and the development of “the social, cultural and economic structures” of those parties (s 39(1)(a)(iii)). His Honour held that this difference did not, however, bring about any change to the construction of the expression “native title party” or its role insofar as it applies to those subsections as the reference to “those parties” in s 39(1)(a)(ii) and (iii) refers back to the “native title parties” in s 39(1)(a)(i).
APPEAL GROUNDS
121 The appellant advances similar arguments on appeal.
122 Before expressing our own view on the two highly related topics, we note that the treatment of the arguments and analysis of the Native Title Act by the primary Judge was extremely comprehensive. We agree with the process of reasoning of the primary Judge and the conclusions his Honour reached. For that reason our own assessment need not be as fulsome. But there are a few important points to emphasise.
123 By the supplementary notice of appeal:
(a) appeal ground 7 challenges the conclusion of the primary Judge that the members of the applicant of a registered native title determination application must act collectively under the right to negotiate provisions of the Native Title Act;
(b) appeal ground 8 contends the primary Judge should have concluded that the phrase “native title parties” in s 39(1)(b) of the Native Title Act extends to the interests, proposals, opinions or wishes of the native title claim group represented by the applicant for a registered native title determination application;
(c) appeal ground 9 contends that the primary Judge erred by concluding that the material referred to in [61] of the Tribunal’s reasons for determination “did not express the interests, proposals, opinions or wishes of the native title party” when he should have, on the proper construction of s 39(1)(b) of the Native Title Act, concluded that the material did; and
(d) appeal ground 10 contends that the primary judge erred by construing the phrase “native title parties” in s 39(1)(a)(i) of the Native Title Act, and the phrase “those parties” in s 39(1)(a)(ii)-(iii) of the Native Title Act, as a reference to the persons whose names appear as the applicant in an entry on the Register of Native Title Claims when he should have concluded that the two phrases extend to the native title claim group represented by an applicant for a registered native title determination application.
MEMBERS MUST ACT COLLECTIVELY – APPEAL GROUND 7
124 The appellant repeats his argument at first instance. He contends, in essence, that where a native title party is comprised of multiple persons, each of those persons comprises a native title party. The appellant argues that the status as a native title party is a personal one, not a corporate one, and that he personally should be regarded as an individual native title party.
125 The appellant refers to the recent decision of McGlade (at [233]-[238]) where North and Barker JJ said:
233 Given the textual ambiguities identified in these various provisions, the primary object in construing s 24CD is to render it “consistent with the language and purpose of all the provisions” of the NTA: the NTA must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. See Independent Commission Against Corruption v Cunneen and Others (2015) 256 CLR 1 at [31] (French CJ, Hayne, Kiefel and Nettle JJ); [2015] HCA 14, citing Project Blue Sky at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ).
234 The definition of a “registered native title claimant”, relying as it does on the definition of an “applicant” in s 61(2), contemplates a singular entity that may, in some circumstances, be comprised of multiple “persons” whose names appear on the Register “as the applicant”. In order to construe the provisions of the NTA in a harmonious manner, the reference to “all registered native title claimants” in s 24CD(2)(a) must refer to each “registered native title claimant”, if there is more than one, in the sense of the entity defined by s 253, in relation to an agreement area.
235 This conclusion is strengthened by the parallel such a construction would create between the work done by “all registered native title claimants” and “all registered native title body corporates” in s 24CD(2)(a) and (b) respectively.
236 The parallel is not weakened by Note 1 to s 24CD(2)(a), of which s 24CD(2)(b) has no equivalent, which provides as follows:
Note 1: Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.
237 The subtle differences in the drafting of Note 1 and the definition of a “registered native title claimant” in s 253 may be noted. A literal reading of Note 1, particularly the reference to “persons whose names appear”, may suggest that, for the purposes of s 24CD, the reference to “registered native title claimants” in the plural, means the individual persons comprising the “applicant”, rather than multiple “registered native title claimants” in the form of entities created by the NTA.
238 Nonetheless, in construing the NTA harmoniously, an interpretation of “registered native title claimant” consistent with s 253 and the use of that phrase in other provisions of the NTA, should be preferred over one possible interpretation of Note 1 to s 24CD(2)(a).
(Emphasis added)
126 As noted above (at [81]), s 29(2) of the Native Title Act defines “native title party” as a native title body corporate or the registered native title claimant. It provides:
29 Notification of parties affected
…
(2) The Government party must give notice to:
(a) any registered native title body corporate (a native title party) in relation to any of the land or waters that will be affected by the act; and
(b) unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:
(i) any registered native title claimant (also a native title party); and
Note: Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.
(ii) any representative Aboriginal/Torres Strait Islander body;
in relation to any land or waters that will be affected by the act; and
(c) if the doing of the act has been requested or applied for by a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied)—that person (a grantee party); and
(d) the registrar or other proper officer of the arbitral body in relation to the act.
127 As can be seen, pursuant to s 29(2)(b)(i), in relation to “registered native title claimant”, there is a further Note. This Note is identical to the Note to s 24CD(2)(a) considered in McGlade, referring to persons whose names appear on the Register of Native Title Claims.
128 Although McGlade concerned the ILUA provisions of Pt 2 Div 3 of subdiv C, whereas this appeal concerns subdiv P, the appellant contends that the text, context and purpose of subdiv P of the Native Title Act establish that each person comprising the applicant in a native title determination application, (a “native title party” as opposed to “registered native title claimant”), may participate and be represented in a right to negotiate inquiry undertaken by the Tribunal. The appellant emphasises “persons” in the Note, which he argues, in this context, is consistent with identifying native title parties by reference to individuals, rather than as a collective.
129 In support of his argument, the appellant points out that there is no provision (such as s 62A of the Native Title Act in a native title determination application context), relating to the right to negotiate that requires persons comprising the applicant to act collectively. The appellant further argues that the existence of a diversity of views within the members of an applicant is relevant to the exercise of the Tribunal’s discretion under s 38 of the Native Title Act, having regard to the criteria in s 39 of the Native Title Act.
130 The appellant notes that the reference to “persons” appears elsewhere, such as the need to give “persons” three months to become native title parties in certain circumstances (s 24(4)(b) of the Native Title Act). Section 30 of the Native Title Act also refers to “persons” in the context of persons becoming registered within four months of commencement of the process. There is a mechanism in subs (2) dealing with circumstances in which a person ceases to be a native title party, again, addressing a person rather than a collective, as does subs (4). Section 253 of the Native Title Act contains the definition of “registered native title claimant” which is a definition by reference to a person or persons whose name or names appear on the Register. It was that definition to which the plurality in McGlade made reference. However, the appellant reiterates, McGlade was considered in the context of the provisions of subdiv C, which he argues are ambivalent in their reference to “persons”. The appellant again contrasts those provisions with the provisions in subdiv P which, he argues, emphasise the personal nature of native title party status. The appellant submits that it is significant that subdiv P is directed to native title parties, rather than native title claimants.
131 These provisions lead to the conclusion, the appellant argues, that a native title party consists of multiple persons or multiple native title parties where a single registered claimant has multiple individuals. It follows, he says, that the appellant himself was a discrete native title party. In this case, there were three persons who comprised the native title party, albeit that not all three persons decided to submit evidence.
132 The appellant also submits that the longstanding practice of the Tribunal to require multi-person applicants to act collectively is, in these circumstances, irrelevant. Further, he emphasised that there is no formal procedure for appearance in the Tribunal.
133 The appellant relies on the fact that McGlade particularly overturned the reasoning in Bygrave (No 2), on which the primary Judge relied (having decided Bygrave (No 2)), to the effect that registered native title claimants had a limited role in subdiv C matters. This gave rise to the conclusion of the plurality in McGlade that individuals must sign an ILUA. The appellant accepts that the only common point between McGlade and this case is the definition of registered native title claimant.
134 In response to the argument that construing the native title party in this personal way would produce undesirable consequences, the appellant submits that the Native Title Act, in a sense, already addresses native title parties as individuals in that native title agreements of the kind anticipated by s 31 of the Native Title Act are to be executed by all living members of a native title party. Therefore the appellant argues that the construction he advances is harmonious with the way s 31 agreements are to be made.
135 In our view, the consequences for the right to negotiate regime of adopting the appellant’s construction of “native title party” would produce an unworkable result which should not be regarded as Parliament’s intention. The obvious consequence is that if every person whose name appears on the Register (to which there is no limit under the Native Title Act) were a distinct “native title party” and required to have the opportunity to make submissions to the Government party and to negotiate with the other parties in good faith, negotiations would be virtually unworkable. Amongst many other impractical consequences, that approach would introduce the possibility of different individuals within the native title party taking different negotiating positions, thus creating disunity in the negotiations and thereby jeopardising the prospects of any agreement.
136 If a right to negotiate application were to eventuate, it could result in the individuals within the native title party holding differing views about whether an objection should be made to an expedited procedure under ss 32(1) to 32(3) of the Native Title Act, or whether an attempt should be made to satisfy the arbitral body that the negotiations were not conducted in good faith under s 36(2). It could also result in differing positions being advanced to the arbitral body as to what the views of the native title party were (s 142), multiple parties representing those views at any hearing before the arbitral body (s 143) and each member of the native title party who is dissatisfied with the final determination having a right of appeal (s 164(2)). It would place the arbitral body in the impossible position where it would have to determine which individual’s views should prevail.
137 The reliance of the appellant on the absence of an equivalent to s 62A of the Native Title Act in the context of the right to negotiate is not persuasive. Under s 29(2) of the Native Title Act, for the purposes of the future act regime, the “native title party” can be either:
(a) a registered native title body corporate; or
(b) a registered native title claimant.
138 In the case of a body corporate, the interests of the native title claim group will be represented collectively by the corporate body. Parliament would not have intended that there should be both collective representation of the native title group by the body corporate, while at the same time allowing multiple individual representations where the native title party was a registered native title claimant consisting of more than one person. The objective and policy intent of the Native Title Act is that the native title party should provide collective representation, whether the native title party is a native title body corporate or a registered native title claimant.
139 It is informative that the “registered native title claimant”, by virtue of s 253 of the Native Title Act, is comprised of the same persons who constitute the “applicant” for the purposes of the native title determination application. In the case of a native title determination application, those named on the Register are “jointly” the applicant by virtue of s 61(2) of the Native Title Act, which provides:
61 Native title and compensation applications
…
Applicant in case of applications authorised by claim groups
(2) In the case of:
(a) a native title determination application made by a person or persons authorised to make the application by a native title claim group; or
(b) a compensation application made by a person or persons authorised to make the application by a compensation claim group;
the following apply:
(c) the person is, or the persons are jointly, the applicant; and
(d) none of the other members of the native title claim group or compensation claim group is the applicant.
…
140 The persons named on the Register who are jointly the applicant have the power to deal with all matters arising under the Native Title Act in relation to an application. This is evident from s 62A of the Native Title Act, which provides:
62A Power of applicants where application authorised by group
In the case of:
(a) a claimant application; or
(b) a compensation application whose making was authorised by a compensation claim group;
the applicant may deal with all matters arising under this Act in relation to the application.
Note: This section deals only with claimant applications and compensation applications. For provisions dealing with indigenous land use agreements, see Subdivisions B to E of Division 3 of Part 2.
141 Those provisions (s 61(2) and s 62A of the Native Title Act) have been examined on a number of occasions. On such examinations, this Court has always held that persons comprising the “applicant” are required to act jointly. They are not entitled to separate representation: Butchulla People v Queensland (2006) 154 FCR 233 per Kiefel J (at [38]); Johnson per Stone J (at [8]). See also Ankamuthi People per Drummond J (at [7]-[8]); Anderson on behalf of the Wulli Wulli People v Queensland (2011) 197 FCR 404 per Collier J (at [13]-[47]) (and the authorities cited therein); Roe v Kimberley Land Council Aboriginal Corporation (2010) 215 FCR 131 per Gilmour J (at [34]-[42]).
142 It may be accepted, as the primary Judge did, that although s 61(2) and s 62A of the Native Title Act are not directly applicable to the future act regime, the jurisprudence on those provisions may be considered as providing guidance on the role of the “native title party” in respect of a future act determination.
143 The Court has been taken to no provision or justification supporting the proposition that persons comprising the “applicant” in a determination application are required, on the one hand, to act jointly or collectively for that purpose, while those same persons in their capacity as the “native title party” should be permitted to act individually in a future act determination application. Counsel for the appellant pointed to the anomaly that there may be differing interests in different geographic locations of a claim area, which is undoubtedly true. However, that does not mean that the collective body is not able to take into account all interests and present a position and negotiate in respect of that position which is best designed to reflect all interests collectively, as is undoubtedly the objective of future act negotiation provisions.
144 That this is so is supported by the fundamental jurisprudence concerning native title rights. Native title is by its very nature a communal right: see, for example, the discussion in Mabo (No 2) per Brennan J (at 62) and per Deane and Gaudron JJ (at 109-110) as described in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 per Wilcox, French and Weinberg JJ (at [66]), where their Honours said:
The rules which govern the recognition of native title rights and interests at common law were set out in the decision of the High Court in Mabo (No 2). The basic propositions to be derived from that case are:
1. The colonisation of Australia by Great Britain did not extinguish rights and interests in land held by Aboriginal and Torres Strait Islander people according to their own law and custom.
2. The native title of Aboriginal and Torres Strait Islander people under their law and custom will be recognised by the common law of Australia and can be protected under that law.
3. When the Crown acquired each of the Australian colonies it acquired sovereignty over the land within them. In the exercise of that sovereignty native title could be extinguished by laws or executive grants that indicated a plain and clear intention to do so - eg, grants of freehold title.
4. To secure the recognition of native title it is necessary to show that the Aboriginal or Torres Strait Islander group said to hold the native title:
(a) has a continuing connection with the land in question and the rights and interests in the land under Aboriginal or Torres Strait Islander traditional law and custom, as the case may be; and
(b) continues to observe laws and customs which define the ownership of rights and interests in the land.
5. Under common law, native title has the following characteristics:
(a) it is communal in character although it may give rise to individual rights;
(b) it cannot be bought or sold but can be surrendered to the Crown;
(c) it may be transmitted from one group to another according to traditional law and customs;
(d) the traditional law and custom under which native title arises can change over time and in response to historical circumstances; and
(e) native title is subject to existing valid laws and rights created under such laws.
145 This communal character was further reinforced in Western Australia v Sebastian (2008) 173 FCR 1 where Branson, North and Mansfield JJ said (at [34]):
In Alyawarr (FC) Wilcox, French and Weinberg JJ identified as one of the basic propositions from Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)) that “native title … is communal in character although it may give rise to individual rights”: at [66]. Their Honours were of the view that the various aspects of the definition of native title in s 223 of the NTA “have their origin in Mabo (No 2) and could not have been intended to undercut the fundamental principle of the communal character of native title”.
146 There is additional legislative support for the collective function. The entry in the Register prescribed by s 186(1)(d) of the Native Title Act for an application in a native title party determination provides for a single “address for service” of the applicant. This is harmonious with the view that the native title party must act jointly or collectively. Section 186(1)(d) of the Native Title Act provides as follows:
186 Contents of the Register
Information to be included
(1) The Register must contain the following information for each claim covered by subsection 190(1):
…
(d) the name and address for service of the applicant;
147 For these reasons, the primary Judge was correct and appeal ground 7 cannot succeed.
CONSTRUCTION OF THE TERM “NATIVE TITLE PARTY” – APPEAL GROUNDS 8-10
148 Again, the appellant repeats his first instance arguments which were addressed by the primary Judge.
149 These grounds focus on the construction of the words “native title parties” as they appear in s 39(1)(b) of the Native Title Act and the related expression “those parties” in s 39(1)(a)(ii)-(iii) of the Native Title Act. For convenience they are repeated below:
39 Criteria for making arbitral body determinations
(1) In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i) the enjoyment by the native title parties of their registered native title rights and interests; and
(ii) the way of life, culture and traditions of any of those parties; and
(iii) the development of the social, cultural and economic structures of any of those parties; and
(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
…
(Emphasis added)
150 The primary Judge construed those terms as applying to the persons whose names appear on the Register as persons comprising the applicant in a registered native title determination application.
151 The appellant says that the purposes of the Native Title Act are advanced by construing these references as applying to each person comprising the native title claim group, rather than the persons whom he says “serendipitously” comprise the applicant for a native title determination application.
152 The appellant argues (by way of example) that the custodian of a sacred site affected by a proposed future act to which Pt 2 Div 3 subdiv P of the Native Title Act applies should not have his or her concerns about the impact to such a site for which he or she is responsible ignored by the Tribunal by reason of the adoption of a drafting convention in s 39 of the Native Title Act.
153 It is contended that the primary Judge should have concluded that the phrases “native title parties” and “those parties” encompass individual members of a native title claim group. On this beneficial construction, the appellant says, the scope of the relevant material under s 39(1) of the Native Title Act would be broader so as to afford the Tribunal an optimal picture of the impact of a proposed future act upon individual members of a native title claim group or, after a determination, a native title holding group.
154 In further support of his argument, the appellant points to the fact that within the prescribed time constraints specified in s 36 (6 months), it would be unworkable to endeavour to change representation of a group under s 66B of the Native Title Act, which is usually a lengthier process. The appellant argues that the broader construction advanced by him would ameliorate the need to replace applicants so readily because the Tribunal would have a broader mandate to consider information relating to the impacts of mining proposals on the native title claim group.
155 We consider that it is significant that the right to negotiate regime centres on the negotiation parties defined in s 30A of the Native Title Act who are (a) the Government party; (b) any native title party; and (c) any grantee party.
156 By s 31(1)(b) of the Native Title Act all negotiation parties are required to negotiate in good faith with a view to obtaining the agreement of the native title parties to the doing of the act. A failure of the negotiating parties to reach agreement means that the Tribunal must generally make a determination under s 38(1) of the Native Title Act.
157 Such a determination is to be made after the Tribunal has held an inquiry into a right to negotiate application: see s 162(1) of the Native Title Act. Section 162 provides as follows:
162 Determination of the Tribunal-right to negotiate applications
Tribunal to make determination
(1) Subject to section 37, after holding an inquiry in relation to a right to negotiate application, the Tribunal must make a determination about the matters covered by the inquiry.
Tribunal must state findings of fact
(2) The Tribunal must state in the determination any findings of fact upon which it is based.
158 The only parties entitled to participate in that inquiry are the Government party, the native title party and the grantee parties. That is expressly specified by s 141(2) of the Native Title Act. Each party may appear in person and be represented by a barrister, solicitor or another person by virtue of s 143 of the Native Title Act. The Tribunal must ensure each party has a reasonable opportunity to “present its case” and to inspect and make submissions on documents to which the Tribunal proposes to have regard: s 142 of the Native Title Act. Indeed, the Tribunal must pursue the objective of carrying out these functions in a “fair, just, economical, informal and prompt way” by reason of s 109 of the Native Title Act.
159 The argument advanced by the appellant could lead to outcomes that do not accord with these objectives. The outcome would be that despite the position stated by the persons who collectively comprise the “native title party” in the inquiry, any member of the native title claim group could contact the Tribunal and state his or her position on, say, the effect on culture in relation to the relevant land, as occurred in this instance. On receipt of that communication, the Tribunal would have to determine whether the position advanced by the native title applicant or the individual better reflected the interests, proposals, opinions or wishes of the wider native title claim group, even though it may have no relevant information or evidence in relation to that group.
160 In this instance, the applicant did not wish to make submissions to counter the submissions proffered by other parties, namely, the State and Adani. This dispute provides a typical example of the difficulties which would undermine the expeditious determination of such a hearing. If the appellant’s construction were accepted, the Tribunal would be unable to accept at face value the submissions, or lack thereof, of the actual Applicant. It is difficult to see how the appellant’s argument could sit comfortably with other provisions of the Native Title Act, including s 61(1) and s 251B , which repose authority in the persons making the application.
161 The entire carriage of the determination application is by persons who comprise jointly the applicant. It is only the applicant who is entitled to take all necessary steps. It would be inappropriate to adopt some other mechanism in relation to the future act regime from that applied for the purposes of the application for the determination itself. As established in Project Blue Sky (at [69]-[70]), a statute must be construed as a whole and on the basis that its provisions give effect to harmonious goals. As noted in Butchulla People per Kiefel J (at [38]), the evident purpose of s 61 and related provisions is to provide “a workable and efficient method of prosecuting claims for native title determination, one which limits the potential for a dispute which might stifle the progress of claims”. It is difficult to resist the State’s contention that the appellant’s construction would create a potentially chaotic system in relation to future act proceedings in contrast to a workable and efficient system in relation to the prosecution of the actual determination application.
162 As to the timing argument and the requirement for the Tribunal to act with efficiency for the purposes of s 39 of the Native Title Act, if a particular member of a native title claim group seeks to have the claim group replace an applicant in accordance with s 66B of the Native Title Act there may be difficulty in meeting the timing aspiration. But the time involved in such an application would simply be one factor for the Tribunal to take into account in its resolution of the matters raised before it. The desire for one member to replace the applicant does not mean that the Tribunal should depart from the clear words of the statute.
163 When it comes to the text of the statute, s 253 of the Native Title Act contains separate definitions for the terms “native title party” and “native title claim group”. It follows that the expression “native title parties” where used in s 39 of the Native Title Act should be taken to have been intended to use the term as defined rather than a different term defined separately in the Native Title Act.
164 The notice provisions dealing with future acts provide further support for the collective approach. It is only the native title party, not individual members of the claim group, which is entitled to be given notice of a future act under s 29(2) of the Native Title Act. Section 29 relevantly provides as follows:
29 Notification of parties affected
Notice in accordance with section
(1) Before the act is done, the Government party must give notice of the act in accordance with this section.
Persons to be given notice
(2) The Government party must give notice to:
(a) any registered native title body corporate (a native title party) in relation to any of the land or waters that will be affected by the act; and
(b) unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:
(i) any registered native title claimant (also a native title party); and
Note: Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.
(ii) any representative Aboriginal/Torres Strait Islander body;
in relation to any land or waters that will be affected by the act’ …
…
165 Similarly, it is only the native title party, who is a party to the future act determination under s 141 of the Native Title Act and therefore has a right to make submissions and be represented before the Tribunal in accordance with s 142 and s 143. There is no right for individual members to receive notice of a future act and they are not entitled to make submissions.
166 The appellant’s arguments cannot be accepted. If s 39(1)(b) of the Native Title Act had been intended to take into account the separate views of the members of the native title claim group, then Parliament would have used the defined term “native title claim group”. There is no reason to conclude that the selection of the term “native title parties” was an error.
167 The facts of this case highlight the unworkability of the appellant’s argument. In this instance, the Tribunal gave reasons for not taking into account the material the appellant sought to submit. Those reasons included the fact that the material was received after the Applicant had indicated through its solicitors that no submissions would be made and after the compliance date for filing submissions had passed. The Tribunal also noted that the statement made by the appellant was said to be “on behalf of the Wangan and Jagalingou People” and “on behalf of the [Families Council]” yet there was no indication of support from the other members of the Applicant, or the members of the Families Council. Further, in his emails to the Tribunal on 5 and 12 February 2015, the appellant did not purport to act in his capacity as the native title party. Even if the appellant’s argument was correct, the appellant did not profess to act as a native title party.
168 These grounds must also fail.
NOTICE OF CONTENTION – STANDING
169 The State argues that if the appellant were otherwise successful (which he has not been), the Court should dismiss the appeal on the basis that he is not “a person aggrieved” within the meaning of the ADJR Act.
170 The issue of standing was not pursued at the hearing before the primary Judge on the basis that to determine it would require consideration of at least some of the substantive issues of statutory construction that had been addressed, for example, who was entitled to submit materials to the Tribunal. A similar approach was taken in Combet v Commonwealth of Australia (2005) 224 CLR 494 (at [164]).
171 The term “person aggrieved” in the ADJR Act includes a person whose interests are adversely affected by the decision (s 3(4) of the ADJR Act). In Argos Pty Ltd v Minister for the Environment and Sustainable Development (2014) 254 CLR 394 per Hayne and Bell JJ (at [61]) their Honours noted “interests” may be broader than legal interests, such as economic interests (footnotes omitted):
The focus of the inquiry required by the words is upon the connection between the decision and interests of the person who claims to be aggrieved. The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from (beyond (84)) its effect on the public at large. Here, the effect was said to be economic.
172 Argos also establishes that regard must be had:
to the enactment under which the impugned decision is made and the legal effect and operation of the decision in order to determine how the interests of the applicant for review may be adversely affected or the applicant [may] otherwise [be] a person aggrieved.
173 In this instance the appellant brought the proceedings in his own capacity, not as a “native title party” as that term is properly construed. The decision of the Tribunal, according to the State, would have no legal and practical effect on any interests of the appellant. It would only ensure that the grants of the mining leases are not invalid to the extent that they would “affect” or be inconsistent with native title (to use the terminology of s 227 of the Native Title Act): see Lardil Peoples v Queensland (2001) 108 FCR 453. But the appellant has not established what native title rights and interests he holds, nor has he established how those rights may be affected.
174 The appellant relies on McKenzie v Minister for Lands (2011) 45 WAR 1, where Martin CJ considered the standing of two members of a native title claim group to challenge the validity of three notices of intention to acquire land over which native title rights and interests had been claimed. Martin CJ said (at [71]-[72], [75]-[77]) :
71 The third component of the Minister's submissions on the subject of standing is the proposition that as Mr McKenzie and Mr Roe are not the nominated applicants in a registered claim for the determination of native title interests, they should only be found to have sufficient interest in the validity of the notices issued by the Minister to invoke the jurisdiction of the court if they establish to this Court that they are members of a group which holds native title in respect of the land the subject of those notices. It is submitted that an unresolved claim to native title does not provide a sufficient interest to invoke the jurisdiction of this Court. It was put that in order to entertain these claims, [it] is necessary for this Court to effectively usurp the exclusive jurisdiction of the Federal Court of Australia with respect to determinations as to native title, and itself make a determination as to whether the Goolarabooloo/Jabirr Jabirr Peoples are the holders of native title in respect of the land the subject of the notices, and whether Mr McKenzie and Mr Roe are members of that group, notwithstanding the evident impracticality and hazards involved in that course.
72 Although the Australian law of standing has developed significantly over the 100 years or so, its framework is still to be found in the classic formulation of principle by Buckley J in Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114. Buckley J identified two scenarios in which a party might seek relief from the court arising from interference with a public right. The first was the scenario in which the interference with the public right also involved interference with the plaintiff's private right, in which case the plaintiff could sue for the vindication of that right. The second scenario is the scenario in which interference with the public right does not involve any interference with the private right of the plaintiff, but would cause the plaintiff to “suffer special damage peculiar to himself”. Later cases have developed the second scenario identified by Buckley J as involving a circumstance in which the party invoking the jurisdiction of the court has some “special interest” in the subject matter of the litigation, over and above the interest enjoyed by every member of the public: see eg Onus v Alcoa of Australia Ltd (1981) 149 CLR 27.
…
75 … In the present case, Mr McKenzie and Mr Roe assert that the Minister has not performed the duties imposed upon him by s 171 of the LA Act when issuing the notices of intention to take. If they had established that they are members of a group which holds native title in respect of the land the subject of those notices, they would of course have standing to challenge their validity under the first limb identified by Buckley J in Boyce. However, they are not confined to the first limb. If, as they assert, they have a special interest in the Minister's performance of the duties imposed upon him by s 171 of the LA Act, over and above the interest enjoyed by every member of the public in the Minister's compliance with the law, they will have sufficient standing to invoke the jurisdiction of the court.
76 The second reason for rejecting this aspect of the Minister's submission on standing is that it is not appropriate to characterise the provisions of the LA Act with respect to compulsory acquisition as being only concerned with private rights. The fact that there have been laws authorising the compulsory acquisition of interests in land for many years does not detract from the exceptional character of those laws. The enjoyment of rights and interests in property, including land, is an attribute of our democracy which is highly cherished by the community. Laws providing for the expropriation of private rights and interests by the State are strictly construed. There is a strong and readily identifiable public interest in ensuring that interests in land are only compulsorily acquired by the State in conformity and in strict compliance with those laws. Accordingly, I would not characterise the public interest in due compliance with the law relating to compulsory acquisition of interests in land in any different way to the public interest in compliance with the laws relating to the protection of the environment or Aboriginal heritage, for the purposes of applying the law of standing.
77 The third reason for rejecting this aspect of the Minister's submissions on standing is that it is directly contrary to relevant High Court authority: Robinson v Western Australian Museum (1977) 138 CLR 283.
175 In substance, Martin CJ in McKenzie held (at [89]) that the rights asserted in the native title claim, in a context in which the claim was neither spurious or colourable and where what was challenged was legislative action that would adversely affect the rights claimed, were sufficient to establish the standing of the two persons. Dowsett J also upheld the standing of a native title holder whose rights may have been adversely affected by the registration of an ILUA to challenge that registration in Gibson v Rivers-McCombs (2014) 220 FCR 379. His Honour said (at [43]):
If the first applicant, as a Blockholder, is not bound by the ILUA, then he has no standing to challenge the validity of its registration. However, as a traditional owner, he may be aggrieved by the decision to register it if it was not capable of registration. Such registration may adversely affect his native title rights and interests. That ground was pursued before the delegate and is pursued in the present proceedings, although the form of the argument may have changed to some extent. It might also be argued that in these proceedings, the first applicant is represented by Congress, and that he cannot otherwise be heard. As much was suggested in argument by the respondents, but the submission was not developed in detail. I am inclined to proceed on the assumption that, as a traditional owner, he has standing to challenge the registration of the ILUA on the ground that it does not satisfy the requirements of ss 24BB to 24BE.
176 The appellant complains that the decision of the Tribunal would permit the grant of mining leases that would authorise extensive open cut mining on land for which native title rights and interests are claimed. The appellant says that as he is one of the native title claim group on whose behalf those rights and interests are claimed he is therefore aggrieved within the meaning of s 3(4)(a)(i) of the ADJR Act in the sense that his interests as a native title holder are adversely affected by the decision under review.
177 While it can be accepted that the decision in McKenzie had a different focus because it was dealing with compulsory acquisition of proprietary interests, such that the “interest” was more apparent, nonetheless, we would have been disinclined, had it been necessary, to conclude that the appellant had no standing to challenge the Tribunal’s decision. It is clear from Argos that regard must be had to the enactment under which the impugned decision is made, and the legal effect and operation of the decision in order to determine how the interests of an applicant for review may be adversely affected. The approach taken in both McKenzie and Gibson seems correct with respect and relevantly applicable.
178 In the circumstances, and given that the appeal will otherwise fail on substantive statutory grounds, while we would express doubts as to the correctness of the State’s objection to the appellant’s standing as a person aggrieved under the ADJR Act, it is unnecessary to resolve the issue.
CONCLUSION
179 As none of the grounds of appeal has succeeded, the appeal must be dismissed with costs.
I certify that the preceding one hundred and seventy-nine (179) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett, McKerracher and Robertson. |
Associate:
Dated: 25 August 2017
