FEDERAL COURT OF AUSTRALIA

Kemppi v Adani Mining Pty Ltd (No 2) [2019] FCAFC 117

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES ACJ AND ROBERTSON J:

Introduction

1    The appellants are five of the 12 members of the applicant under s 66B of the Native Title Act 1993 (Cth) for a determination of native title on behalf of the W & J (Wangan and Jagalingou) claim group. The appellants appeal from the order made by a judge of this Court on 17 August 2018, dismissing their further amended originating application filed on 18 December 2017: Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245; (2018) 360 ALR 697. Costs orders were made by the primary judge in December 2018: Kemppi v Adani Mining Pty Ltd (No 5) [2018] FCA 2104.

2    The amended originating application sought the following relief, which the appellants now seek in this appeal:

2.    A declaration that the certificate issued on behalf of the Second Respondent on 26 April 2016 under s.203BE(1)(b) of the Native Title Act 1993 (Cth), certifying the application by the First Respondent for the registration of the agreement referred to in the accompanying statement of claim at [15] as the “Project Agreement”, on the Register of Indigenous Land Use Agreements under the Native Title Act 1993 (Cth), is void and of no effect.

3.    A declaration that the Fourth Respondent had no jurisdiction to consider the First Respondent’s application made on 27 April 2016 for the Project Agreement to be registered on the Register of Indigenous Land Use Agreements under the Native Title Act 1993 (Cth).

3A.    A declaration that the decision of the Fourth Respondent, made on 8 December 2017, to enter the Project Agreement on the Register of Indigenous Land Use Agreements under the Native Title Act 1993 (Cth) is void and of no effect.

3    The primary judge explained the nature of the proceeding below and the three issues, in summary, as follows:

1.    Ms Delia Kemppi and her fellow applicants are Wangan and Jagalingou People. They also form a part of a group within the Wangan and Jagalingou People who are opposed to the Carmichael coal mine which Adani Mining Pty Ltd (the first respondent) wishes to develop in Central Queensland.

2.    The area of the proposed Carmichael coal mine falls within the claim area of the Wangan and Jagalingou native title determination application (the W & J application). As a consequence, Adani needs to obtain the agreement of the Wangan and Jagalingou People with respect to any native title that may be affected by its development. To that end, in April 2016, Adani, the State of Queensland (the third respondent) and the Wangan and Jagalingou native title claim group (the W & J claim group) entered into an Indigenous Land Use Agreement (the Adani ILUA) under the provisions of Division 3 of Part 2 of the Native Title Act 1993 (Cth) (the NTA). Subsequently, Adani successfully applied to the Native Title Registrar (the fourth respondent) to enter the Adani ILUA on the Register of Indigenous Land Use Agreements (the Register) under Part 8A of the NTA.

3.    Ms Kemppi’s main goal in this proceeding was to set aside that registration. The path to that goal comprised two stages. The first stage concerned a certificate that was issued by Queensland South Native Title Services (QSNTS) (the second respondent) in April 2016 under s 203BE(1)(b) of the NTA (the Certificate). That Certificate was subsequently used by Adani to support its application to the Registrar to enter the Adani ILUA on the Register. Accordingly, in the first stage, Ms Kemppi sought, by this proceeding, to have that Certificate declared to be “void and of no effect”. Assuming she is able to obtain that declaration, in the second stage, Ms Kemppi sought a declaration that the Registrar had no jurisdiction to consider Adani’s application and therefore his decision to enter the Adani ILUA on the Register was “void and of no effect”.

4    The respondent parties to the appeal were Adani Mining Pty Ltd, Queensland South Native Title Services Ltd (QSNTS), the State of Queensland and the Native Title Registrar respectively. The Registrar filed a submitting appearance.

5    On 23 May 2019, the Attorney-General of the Commonwealth filed a notice of intervention pursuant to s 84A of the Native Title Act 1993 (Cth) after the appellants had filed an application to amend the notice of appeal and their fourth further amended statement of claim in order to raise, as a new issue, a challenge to the capacity of the chief executive officer of QSNTS to give a certificate on its behalf under s 203BE(5) of the Native Title Act 1993 (Cth) in reliance on the very recent decision in Quall v Northern Land Council [2019] FCAFC 77. The Attorney-General withdrew his notice after we refused to allow the amendments: Kemppi v Adani Mining Pty Ltd [2019] FCAFC 94.

The reasons of the primary judge

6    The primary judge said there were two legs to the appellants’ (to whom he referred collectively as Ms Kemppi) attack on the Certificate. In the first leg, she claimed that, in issuing the Certificate, QSNTS acted unreasonably and thereby committed jurisdictional error which, she claimed, justified the declaration of nullity that she sought. In the alternative, in the second leg, she claimed that, in issuing the Certificate, QSNTS failed to take account of a number of relevant considerations which, she claimed, resulted in jurisdictional error which should lead to the same result. Finally, Ms Kemppi made a third challenge to the registration of the ILUA. She claimed that Adani’s application to register the ILUA on the Register of Indigenous Land Use Agreements did not comply with regs 5 and 7(2)(e) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) and, for that reason, the Registrar’s decision to register the ILUA was void and of no effect.

7    The primary judge rejected the unreasonableness ground and, at [145], did not accept the construction of s 203BE(5)(a) advanced by Ms Kemppi, namely that the critical question for a native title representative body, in forming the opinion referred to in s 205BE(5)(a), is “whether the efforts taken were reasonable in the sense of identifying, both inclusively and exclusively, every person of [Indigenous] descent who may hold native title, or otherwise has a characteristic from which it is reasonable to conclude they hold native title in the agreement area” (emphasis in original). The primary judge said the essence of his observations in QGC Pty Ltd v Bygrave (No 3) [2011] FCA 1457; 199 FCR 94; was that the identification process, the object of the opinion in s 203BE(5)(a), was intended to be inclusive and expansive. That is, it was intended to cast the widest possible net so that any person who may hold native title in the area of the proposed ILUA is identified and given the opportunity to participate in the process of authorising, or consenting to, the making of that ILUA under s 251A of the Act.

8    The primary judge said, at [146], the other fundamental defect in Ms Kemppi’s contention was that it sought to limit the identification process in s 203BE(5)(a) to those persons who can demonstrate by some means that they may hold native title in the area of the proposed ILUA. His Honour found that there were at least two reasons why this proposition was not sustainable. The first was that there was nothing in the text, context or purpose of s 203BE(5)(a) to support it. The second arose from the particular limitation Ms Kemppi sought to impose on the membership of that group, and, in turn, the membership of the group who participated in the authorisation process under s 251A. She contended that the criterion for membership of that first group was membership of the Wangan and Jagalingou People. His Honour held that this was not so. The criterion for membership of that first group was whether in that group the persons “may hold native title” in the area of the Adani ILUA. While membership of the Wangan and Jagalingou People, or more specifically, the W & J claim group was the criterion for membership of the second group, it did not determine who may participate in the authorisation process as a member of the first group under s 251A.

9    Two things followed, the primary judge said: First, apart from the materials Kevin Smith (the chief executive officer of QSNTS) had before him when he issued the Certificate, which concerned the efforts taken to identify persons who may hold native title in the area of the Adani ILUA ([34A] of the fourth further amended statement of claim (SOC)), the other items of knowledge pleaded in the SOC had no bearing on the opinion Mr Smith was required to hold with respect to the matters in s 203BE(5)(a). Secondly, and for the same reasons, the evidence Ms Kemppi adduced to the effect that a larger number of people than usual attended the 16 April 2016 authorisation meeting was irrelevant to the opinion Mr Smith was required to hold with respect to the matters described in s 203BE(5)(a). So, too, was the evidence about the verification, or vetting, procedures that were followed, or not followed, at that meeting.

10    The primary judge dismissed the relevant considerations ground at [153] and following. The provisions of the Act under which Mr Smith expressed the opinions that were challenged in this ground were set out in s 203BE(5)(a) and (b). The primary judge found that the considerations of which Mr Smith was bound to have regard when issuing the Certificate were, in summary:

(a)    the reasonableness of the efforts made to identify the persons falling into the first group of persons mentioned above; and

(b)    whether that group of persons authorised the making of the Adani ILUA in accordance with the decision-making process adopted by the second group mentioned above, namely the W & J claim group.

11    The primary judge decided that it followed that Mr Smith was not bound to have regard to the laws and customs of the Wangan and Jagalingou People concerning the criteria for membership of that People, as was claimed by Ms Kemppi. Membership of the Wangan and Jagalingou People, or the W & J claim group, was not a criterion for participation in the authorisation process for the Adani ILUA. He held that it necessarily followed that the extent to which persons who attended the 16 April 2016 authorisation meeting and were permitted to vote and participate in the deliberations of that meeting, despite not being Wangan and Jagalingou People (on the assumption they were not), was also not a consideration to which Mr Smith was bound to have regard when issuing the Certificate.

12    The primary judge considered the third challenge, the “complete description” ground, at [159] and following. His Honour rejected it as follows:

166    For the following reasons, I consider Adani is correct in its submissions. First, reg 7(2) is not concerned with the authorisation process for an ILUA, as Ms Kemppi asserted above (see at [163(23)]). Instead, it is concerned with an application for registration of such an agreement under s 24CG of the NTA. Secondly, the text of regs 5 and 7(2)(e) only requires the complete description to be such that it “enables identification of the boundaries of” the area in question. Thirdly, the word “area” refers to that area where “it is intended to extinguish native title rights and interests”. In this matter, cl 9(b) of the Adani ILUA provides that extinguishment is to occur in the “Surrender Area”. Since the ILUA describes the boundaries of that area, it contains a complete description for the purposes of reg 7(2)(e).

167    Fourthly, this construction is supported by the statutory context as follows. The notice of the agreement that is required to be provided under s 24CH as a part of the ILUA registration process only requires the identification of “the area covered by the agreement, whether by including a map or otherwise …” (s 24CH(2)(a)). Further, if the agreement is eventually entered on the Register under Part 8A of the NTA, insofar as the area is concerned, that Register will only contain “a description of the area covered by the agreement” (see s 199B(1)(a)). Finally, s 24EB, which deals with the future acts that may be validly undertaken once an agreement is entered on the Register, only refers to “native title in relation to land or waters in the area covered by the agreement” (see s 24EB(2)).

168    There is therefore no indication in the text of reg 7(2)(e) or its relevant statutory context to support the level of specificity that Ms Kemppi contended is required for the “complete description” of the area.

The grounds of appeal

13    The notice of appeal contained the following 14 grounds:

1.    The learned primary judge erred (at [145]) in rejecting the proposition that s.203BE(5)(a) of the Native Title Act 1993 (Cth) (NTA) required reasonable efforts to identify, both inclusively and exclusively, persons of Indigenous descent who hold or may hold native title in the “ILUA Area” (ILUA Area) of the “Adani ILUA” (as defined at [2] of the reasons).

2.    The learned primary judge erred (at [145]) in failing to hold that s.203BE(5)(a) of the NTA requires reasonable efforts to identify persons of Indigenous descent who hold or, reasonably considered, may hold native title in the ILUA Area.

3.    The learned primary judge erred (at [145]) in holding that the identification process that is the subject of s.203BE(5)(a) of the NTA is restricted to a process that is inclusive and expansive such that it is directed to all persons of Indigenous descent who claim to hold, or that might hold native title, in an area covered by an agreement no matter how tenuous and unsubstantiated that claim may be.

4.    The learned primary judge erred (at [145]) in construing s.203BE(5)(a) of the NTA as requiring an identification process that it is intended to cast the widest possible net so that any person who may hold native title in the area of a proposed Indigenous land use agreement is identified and given the opportunity to participate in the process of authorising, or consenting to, the making of that Indigenous land use agreement.

5.    As a result of the legal errors referred to in paragraphs [1]-[4] above, the learned primary judge erred (at [147]-[148]) in concluding that evidence adduced by the Applicants showing that persons had been allowed to take part in the authorisation meeting for the Adani ILUA without any reasonable effort to establish whether each person fell within the group that hold or may hold native title in the ILUA Area was irrelevant.

6.    The learned primary judge erred (at [146]) in failing to construe s.203BE(5)(a) of the NTA as not encompassing persons who cannot demonstrate that, reasonably considered, they may hold native title in the area of a proposed Indigenous land use agreement.

7.    To the extent that the learned primary judge concluded (at [148]) that the pre-registration checking process, together with the process engaged in before the meeting of 16 April 2016, both described in the evidence of Mr. Fahey, were sufficient to meet the requirement of objectivity contained in s.203BE(5)(a), the conclusion was against the weight of the evidence, including Mr. Fahey’s own evidence in cross-examination, and was in error.

8.    The learned primary judge erred in attempting to assess (at [150]) the reasonableness of the decision of the Second Respondent by reference to the reasons given by Mr. Smith in the following respects:

(a)    it was evident from Mr. Smith’s reasons that he directed his opinion formation to a past process which resulted in the compilation of a data base;

(b)    it was established by the evidence that Mr. Smith had little or no relevant knowledge provided to him concerning how the persons named in the database related to the persons who preregistered for, and/or attended, and took an active part in the April 16 2016 authorisation meeting;

(c)    it was established by the evidence that Mr. Smith’s knowledge in relevant and important aspects was not the knowledge of the Second Respondent;

(d)    since the decision required by s. 203BE(5)(a) NTA is the decision of the Second Respondent and not a delegate who has only a limited proportion of the knowledge relevant to the decision, the decision of Mr. Smith in the circumstances revealed by the evidence was not capable of being a rational decision of the Second Respondent.

9.    The learned primary judge’s analysis of the Applicant’s grounds of unreasonableness and relevant considerations was subject to an all-encompassing error in that he construed s.203BE(5)(b) (at [156]) as merely requiring an opinion on the part of the Second Respondent that all of the persons identified as a result of reasonable efforts having been made to identify all persons who hold or may native title in relation to land or waters in the ILUA Area of the Adani ILUA for the purpose of s.203BE(5)(a), had authorised the making of the Adani ILUA rather than requiring an opinion by the Second Respondent that only those persons who may authorise the Adani ILUA in accordance with s.251A of the NTA had authorised the making of the agreement.

10.     The learned primary judge erred (at [156]-[157]) by failing to find that, properly construed, by requiring the consideration of whether a person claiming to hold native title by reference to membership of a native title claim group (as that term is defined in s.253 of the NTA) has a reasonable basis for that claim, s.203BE(5)(a) and (b) of the NTA, necessarily, requires the consideration (in the mandatory sense) of the traditional laws and customs of that native title claim group and the likelihood of whether the person concerned satisfies those traditional law and customs.

11.    The learned primary judge erred (at [156]-[157]) by failing to find that, properly construed, by requiring the consideration of whether a person claiming to hold native title by reference to an asserted identification as a member of a native title claim group (as that term is defined in s.253 of the NTA) has a reasonable basis for that claim, s.    203BE(5)(a) and (b) of the NTA, necessarily, requires the consideration (in the mandatory sense) of whether the person is entitled to the status of member of the native title claim group.

12.    The learned primary judge erred at [166] of his reasons for judgment by concluding that cl.9(b) of the “Adani ILUA” (as defined at [2] of the reasons) “provides that extinguishment is to occur in the ‘Surrender Area’” contrary to the incontrovertible fact that the “Surrender Area” defined in the Adani ILUA was an area in which native title rights and interests may or may not be extinguished contingent upon events arising after the execution of that agreement.

13.    The learned primary judge erred at [166] of his reasons for judgment by misconstruing the defined term “complete description” in r.5 of the Native Title (Indigenous Land Use Agreements) Regulation 1999 (Cth), and its operation in conjunction with r.7(2)(e) of the Native Title (Indigenous Land Use Agreements) Regulation 1999 (Cth), in that he concluded that the term “complete description” read together with r.7(2)(e) encompassed the description of an area in which native title rights and interests may or may not be extinguished contingent upon events arising after the execution of that agreement.

14.    The learned primary judge erred at [166] of his reasons for judgment by misconstruing the defined term “complete description” in r.5 of the Native Title (Indigenous Land Use Agreements) Regulation 1999 (Cth), and its operation in conjunction with r.7(2)(e) of the Native Title (Indigenous Land Use Agreements) Regulation 1999 (Cth), in that he failed to consider the operation of paragraph (b) of the definition of the term “complete description” which paragraph demonstrates that the proper construction of the term “complete description” requires geospatial certainty of an area such that r.7(2)(e) requires that any area in which “it is intended to extinguish native title rights and interests” (whether immediately or after the satisfaction of conditions) must be the subject of “a map of the area that shows geographic coordinates”.

The notices of contention

14    Adani and Queensland relied on their notices of contention to the effect that if (contrary to the finding of the primary judge) the Certificate issued by QSNTS under s 203BE of the Act was void, the Registrar was nonetheless not deprived of jurisdiction to consider the application for registration of the Adani ILUA and to register the Adani ILUA.

15    Further, Adani also contended that if (contrary to the finding of the primary judge) the application for registration of the Adani ILUA was not accompanied by a “complete description” as required by reg 7(2)(e) of the Regulations, the Registrar was nonetheless not deprived of jurisdiction to consider the application for registration of the Adani ILUA and to register it.

16    Queensland also contended that the Adani ILUA had the effect set out in s 24EB(2) of Native Title Act while its details remained on the Register of Indigenous Land Use Agreements, irrespective of whether QSNTS had jurisdiction to register it.

The statutory provisions

17    Sections 203BE, 251A and 24CG of the Act were as follows:

203BE    Certification functions

General

  (1)    The certification functions of a representative body are:

(a)    to certify, in writing, applications for determinations of native title relating to areas of land or waters wholly or partly within the area for which the body is the representative body; and

(b)    to certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area for which the body is the representative body.

Certification of applications for determinations of native title

(2)    A representative body must not certify under paragraph (1)(a) an application for a determination of native title unless it is of the opinion that:

(a)    all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it; and

(b)    all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group.

Note:    Section 251B deals with authority to make the application.

Overlapping applications for determinations of native title

(3)    If the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware, the representative body must make all reasonable efforts to:

(a)    achieve agreement, relating to native title over the land or waters, between the persons in respect of whom the applications are, or would be, made; and

(b)    minimise the number of applications covering the land or waters.

However, a failure by the representative body to comply with this subsection does not invalidate any certification of the application by the representative body.

Statement to be included in certifications of applications for determinations of native title

(4)    A certification of an application for a determination of native title by a representative body must:

(a)    include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (2)(a) and (b) have been met; and

(b)    briefly set out the body’s reasons for being of that opinion; and

(c)    where applicable, briefly set out what the representative body has done to meet the requirements of subsection (3).

Certification of applications for registration of indigenous land use agreements

(5)    A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:

(a)    all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and

(b)    all the persons so identified have authorised the making of the agreement.

Note:    Section 251A deals with authority to make the agreement.

Statement to be included in certifications of applications for registration of indigenous land use agreements

(6)    A certification of an application for registration of an indigenous land use agreement by a representative body must:

(a)    include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (5)(a) and (b) have been met; and

    (b)    briefly set out the body’s reasons for being of that opinion.

(bold, non-italicised emphasis added)

251A    Authorising the making of indigenous land use agreements

(1)    For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorise the making of the agreement if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind--the persons authorise the making of the agreement in accordance with that process; or

(b)    where there is no such process--the persons authorise the making of the agreement in accordance with a process of decision-making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.

24CG    Application for registration of area agreements

Application

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

Things accompanying application

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

Certificate or statement to accompany application in certain cases

(3)    Also, the application must either:

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

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

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

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

Note:    The word authorise is defined in subsection 251A(1).

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

Registrar may assist parties

(4)    The Registrar may give such assistance as he or she considers reasonable to help a party to the agreement prepare the application and accompanying material.

Certification not affected if Aboriginal/Torres Strait Islander body subsequently ceases to be recognised

(5)    To avoid doubt, the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected merely because, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect. (bold emphasis added)

18    Section 24CG(2) of the Act contemplated reg 7, which provided, relevantly:    

7    Application for registration of area agreements (Act s 24CG)

(1)    For subsection 24CG (2) of the Act, an application to register an area agreement must be accompanied by the documents and information mentioned in this regulation.

  (2)    The following documents must accompany an application:

(a)    a copy of each determination of native title for the agreement area for any party to the agreement that is a registered native title body corporate;

(b)    a statement by each party to the agreement, signed by or for the party, that the party agrees to the application being made;

(c)    a copy of an extract from the Register of Native Title Claims giving details of each party that is a registered native title claimant;

    (d)    a complete description of the agreement area;

(e)    if the agreement provides for the surrender of native title that is intended to extinguish native title rights and interests in an area, a complete description of that area;

(f)    a copy of any certification, mentioned in paragraph 24CG (3) (a) of the Act, that relates to the agreement;

Note    Subsection 24CG (3) of the Act provides that an application for registration of an area agreement must:

(a)    have been certified by all representative bodies for the area; or

(b)    include both a statement that the requirements of para 24CG (3) (b) have been met, and a statement setting out the grounds on which the Registrar should be satisfied that those requirements have been met. (emphasis added)

19    Regulation 5 contained the following relevant definitions:

agreement area, in relation to an indigenous land use agreement, means the area of land or water to which the agreement applies;

area agreement means an indigenous land use agreement of the kind mentioned in section 24CA of the Act.

complete description, in relation to an area, means:

(a)    a written description of that area that enables identification of the boundaries of:

(i)    the area; and

(ii)    any areas within those boundaries that are not included in the area; and

   (b)    a map of the area that shows geographic coordinates.

The parties’ submissions

20    The appellants submitted that the grounds of appeal consisted of two broad themes: grounds 12-14 concerned the correct construction and application of the term “complete description” in reg 7(2)(e) of the Regulations. Grounds 1-11 concerned the correct construction and application of s 203BE(5) of the Act. In this respect the appellants submitted that there was a contrast between [145]-[146] of the reasons for judgment of the primary judge and Bright v Northern Land Council [2018] FCA 752 at [164]-[170] and QGC Pty Ltd v Bygrave (No 3).

21    The appellants submitted that the Adani ILUA did not provide a “complete description” of the area of land for which the Adani ILUA provided for the extinguishment of native title in that land by surrender. They argued that when making its application for the registration of the Adani ILUA, Adani relied upon the content of the Adani ILUA as satisfying the requirement for a “complete description” of the area of surrender of native title under reg 7(2)(e) of the Regulations. Adani’s application to register the Adani ILUA, made on 27 April 2016, recorded that:

…

A complete description of the area within which the surrender of native title is intended to extinguish native title rights and interests is set out at:

•    clause 1.1 (Definitions) of the agreement, definitions of “Surrender Area” and “Surrender Zone”;

•    Part 3 of Schedule 1 (Description of External Boundary (Surrender Zone)) of the agreement; and

•    Part 4 of Schedule 1 (Map of Surrender Zone) of the agreement.

…

22    The appellants noted that the definition of “Surrender Area” in the Adani ILUA was of an area of not more than 2,750 hectares to be located within the Surrender Zone and that “Surrender Zone” was defined to mean the external boundary formed by the coordinates set out Part 3 of Schedule 1 and shown on the map Part 4 of Schedule 1 of the Adani ILUA. Part 3 of Schedule 1 set out the coordinates, referenced from the GDA94 datum. Part 4 outlined in red the Surrender Zone on a Map of the Surrender Zone.

23    Clause 9 of the Adani ILUA was in the following form:

9.    Consents

(a)    The Parties agree to and consent to:

(i)    the Agreed Acts without conditions;

(ii)    any Surrender that occurs pursuant to the process set out in clause 9(b);

(iii)    any Taking of Native Title; and

(iv)    the undertaking of the ILUA Project,

in each case to the extent that it is in accordance with this Agreement and any applicable Law.

(b)    With respect to clause 9(a)(ii), the Parties acknowledge and agree that:

(i)    pursuant to the process set out in this clause 9(b), Surrenders may occur with respect to one or more areas within the Surrender Area; and

  (ii)    if:

A.    Adani seeks an Approval (with respect to an area within the Surrender Zone) that cannot be Granted unless a Surrender first takes place; and

B.    a Surrender over the part of the Surrender Zone that is the subject of the Approval would not result in the total area Surrendered under this Agreement or subject to a Taking of Native Title being greater than the Surrender Area,

then:

C.    provided this Agreement has been Registered, a Surrender will occur immediately before the Approval is Granted in relation to any Native Title Rights and Interests that exist within that part of the Surrender Zone that is the subject of the Approval; and

D.    Adani must notify the Native Title Parties of the Surrender (such notice to include a copy of a plan of survey identifying the area to which the Surrender relates) and provide the State with a copy of that notification.

(c)    The total area the subject of all Surrenders and any Taking of Native Title under clause 9(a)(ii) and 9(a)(iii), must not exceed the Surrender Area and the consents in those clauses 9(a)(ii) and 9(a)(iii) are subject to this limitation.

(d)    The Parties agree that any Surrender is intended to extinguish any Native Title that may exist in relation to the relevant part of the Surrender Zone, at the time of the Surrender.

(e)    Subject to clause 9(d), to the extent that the Grant or doing of any of the Agreed Acts, or the undertaking of any aspect of the ILUA Project, is a Future Act, the Parties agree that the Non-Extinguishment Principle applies to the doing of such Future Act.

(f)    The consents in clause 9(a) are statements for the purpose of section 24EB(1)(b)(i) and 24EBA(1)(a)(i) of the NTA and regulations 7(5)(a) and 7(5)(d) of the Regulations.

(g)    Clause 9(d) is a statement for the purpose of section 24EB(1)(d) of the NTA and regulation 7(5)(c) of the Regulations.

(h)    For the purposes of section 24EB(1)(c) of the NTA and regulation 7(5)(b) of the Regulations, on and from the date this Agreement is Registered, Subdivision P, Division 3, Part 2 of the NTA is not intended to apply to any Agreed Acts, or to any Surrender or any Taking of Native Title.

(i)    For the avoidance of doubt, the Parties agree that, if this Agreement is never Registered or it is Registered and subsequently removed from the Register of Indigenous Land Use Agreements, then subject to its termination in accordance with clause 16:

   (i)    it will remain binding as a contract between the Parties; and

(ii)    the Ancillary Agreement will remain binding as a contract between Adani and the Native Title Parties.

24    The appellants submitted that, properly construed, the operation of cl 9 of the Adani ILUA was that:

(a)    a “Surrender” did not occur at the time of the making of the Adani ILUA, or the registration of the Adani ILUA;

(b)    a “Surrender” occurred from time to time, after the registration of the Project Agreement on the Register, at the time (and from time to time) when an “Approval is Granted”;

(c)    native title was not surrendered for any specific area within the “Surrender Zone” unless and until Adani sought an “Approval… that cannot be Granted unless a Surrender first takes place”.

25    The appellants argued that his Honour erred in concluding (at [166]) that the Adani ILUA “provides that extinguishment is to occur in the “Surrender Area””. They contended that the plain terms of cl 9(b) of the Adani ILUA demonstrated that the area of the “Surrender Area” (as referred to in cl 9(b)) were not known (and a “Surrender” did not take place) until the two conditions in cl 9(b)(ii)(A) and (B) of the Adani ILUA are satisfied. The former was satisfied when Adani “seeks an Approval ... that cannot be Granted unless a Surrender first takes place”. They submitted that the class of “Approvals” satisfying this condition did not appear on the face of the Adani ILUA, and that in the result, the best that could be said was that the Adani ILUA provided that extinguishment may occur in a “Surrender Area”. The appellants argued that the conditional nature of that provision demonstrated the erroneous reasoning of the primary judge, in that the “description” of the boundaries of a “Surrender Area” cannot be a “complete description” as it cannot describe “an area” for which the Adani ILUA “provides for the surrender of native title that is intended to extinguish native title rights and interests in [that] area” within the meaning of reg 7(2)(e). They contended that it followed that this area is unascertainable from the face of the Adani ILUA (or from any other document in evidence).

26    The appellants submitted that the primary judge erred (at [166]) in his construction of regs 5 and 7(2)(e), when concluding that: (i) regs 5 and 7(2)(e) only require “the complete description to be such that it ‘enables identification of the boundaries of’ the area in question”, (ii) that the Adani ILUA contains a complete description of the “Surrender Area”. They argued that the construction in (i) failed to accommodate the fact that, in the reg 5 definition of “complete description”, the “enabling” of identification of boundaries only bears on the written description required by para (a) of the definition and not the “map of the area” in para (b) of the definition. Furthermore, they submitted that the primary judge’s construction failed to give meaningful operation to the second requirement, namely of a written description in the definition of “complete description” which is to describe the areas that are excluded from a larger area. In the present context, the appellants argued that it is precisely this exclusion that the combination of “Surrender Area” and “Surrender Zone” in the Adani ILUA fails to achieve, namely that a reader cannot know (at least at the time of application for registration of the ILUA) which parts of the “Surrender Zone” will be excluded from the extinguishing effect of a “Surrender”.

27    The appellants contended the conclusion of the learned primary judge in (ii) elided the difference between the “Surrender Zone” and the “Surrender Area”. They submitted that cl 9(b) of the Adani ILUA demonstrated in terms that the boundaries of a “Surrender Area” cannot be known until the two conditions in cl 9(b)(ii)(A) and (B) of the Adani ILUA are satisfied. They said that because a surrender may occur in one or more parts of the “Surrender Zone” (being parts that are unknown at the time of the application for registration), the result that the description of the much larger “Surrender Zone” does not describe “an area” for which the Adani ILUA “provides for the surrender of native title that is intended to extinguish native title rights and interests in [that] area” within the meaning of reg 7(2)(e). (Indeed, they argued, except at the level of “no surrender will happen outside these broad boundaries”, the “Surrender Zone” does not define the boundaries of the “Surrender Area”.) The appellants contended that the definition of “Surrender Area”, when read with related provisions of the Adani ILUA, was not a “written description” of the area within the meaning of para (a) of the definition of “complete description”. And, they said, no map of a “Surrender Area” was provided in the Adani ILUA, which only contained a map of the “Surrender Zone”.

28    The appellants submitted that the definition of “complete description” requires two things: a written description and a map. In both cases, they said, it is “the area” which must be described and that the written description must describe the boundaries of the area to be surrendered, and any areas within those boundaries that are not to be surrendered. The appellants argued that the proper construction of reg 7(2)(e) is that a geospatially certain area for surrender must be described in the document containing the “complete description”. They contended that reg 7(2)(e) requires “on the ground” certainty of the area that is to be surrendered and that a formulaic description of the area was insufficient. They submitted that the purpose of the regulation appeared to be that registration cannot take place unless the actual surrender area is clearly identified. In the normal course, they said, that will have the anterior effect that an ILUA would be drafted with appropriate precision. However, the appellants submitted, if that cannot be done by the time at which approval of the ILUA occurs, then it has to take place before the application for registration is made. They accepted that one can envisage, for example, a clause in the ILUA that delegates to certain claim applicants the authority to decide the precise area of extinguishment with the other parties to the ILUA. The appellants contended that, first, the Adani ILUA did not contain a “complete description”, within the meaning of regs 5 and 7(2)(e), of the area in respect of which native title is to be surrendered under its terms, and secondly, Adani’s application for the registration of the Adani ILUA was not “accompanied by” a document of the kind required by reg 7(2)(e). They argued that the consequence of these two matters is that Adani’s application for the registration of the Adani ILUA was not validly made, and Registrar had no jurisdiction to consider it.

29    In their reply, in relation to “complete description”, the appellants submitted that Adani’s and Queensland’s support of the primary judge’s construction failed to leave any work to be done by the words “is intended to extinguish native title and interests in an area” in reg 7(2)(e) because that phrase informs the identity of “that area” for which reg 7(2)(e) required a complete description. The appellants reposted that, as a matter of construction, if native title in a portion of a broader area may be surrendered in future, it cannot be said that “it is intended to extinguish native title” in the broader area.

30    In relation to the certification grounds, the appellants submitted the primary judge erred in concluding that the phrase “may hold native title” in s 203BE(5) should be construed to comprehend every individual, group of persons or communities who makes a claim to native title or who has or have a characteristic from which it may be reasonable to conclude that he, she or they hold native title in the claim area. The appellants submitted the primary judge gave no real recognition to their argument that “identification” required that each person attending an authorisation meeting claiming to be a member of the Wangan & Jagalingou People had to be assessed as to whether he or she was indeed a member of the Wangan & Jagalingou People. In those circumstances, they contended that the function of “identification” under s 203BE required the exclusion of any person who had no connection with or proper claim to be a member of the Wangan & Jagalingou People, because such a person had to be identified as not falling within the group who hold or may hold native title. That is, the appellants argued, whether the approach should be inclusive and expansive or exclusive and rigorous depended on the circumstances, and the certification process had to determine those persons who had to be identified as either falling within or without the description of the W & J claim group.

31    The appellants also submitted that the primary judge erred in another respect because he failed to acknowledge, drawing on s 251A, the applicability of the more restrictive approach to the persons who might be entitled to authorise the Adani ILUA, required by s 203BE(5)(b). They contended that the only people who could authorise the making of an ILUA were those who could be said to have group rights of the kind advanced by an authorised native title determination applicant – here the W & J claim group.

32    In relation to ground 8 of the notice of appeal, the appellants contended because the primary judge erred in the construction of s 203BE(5), he failed to find that the person who signed the certificate, Mr Smith, had not addressed the correct issues in terms of, first, evaluating the identification process and, secondly, considering whether only the appropriate attendees authorised the Adani ILUA. Additionally, the appellants argued that the primary judge erroneously treated the act of certification as akin to a decision of a Minister or statutory officer where what has to be addressed is, in most cases, only the material placed before the decision maker. They submitted that the certification of an ILUA is a decision of the representative body itself and that, thus, it was important that Mr Smith be fully briefed concerning all matters going to identification (for s 203BE(5)(a)) and all matters going to authorisation (for s 203BE(5)(b)). They argued that it was clear that he had not been briefed on the process by which people were allowed to attend the meeting and how their credentials (as to whether they were members of the Wangan & Jagalingou People) were or were not checked. They contended that such information was crucial to assessing, and then certifying, under s 203BE(5), whether reasonable efforts were made in respect of those matters.

33    Another aspect of these failures on the part of the primary judge, the appellants submitted, was his assessment of what was relevant to the question of all reasonable efforts to identify those persons who may hold native title. The primary judge said that it was unnecessary to limit the identification process to those persons who could demonstrate by some means that they may hold native title in the area of the proposed ILUA. The appellants argued that this reasoning was wrong because s 203BE(5)(a) required the identifier and the representative body to address that very question. They contended that his Honour based his construction on his expansive and inclusive interpretation and used that to conclude that the criteria for being a Wangan & Jagalingou person were irrelevant to the task under s 203BE(5). The appellants submitted that this reasoning was counter-intuitive and wrong.

34    In relation to certification the appellants submitted in reply that the error at first instance, and the omission in Adani’s application of the principles in its submission in the appeal, was that the primary judge eschewed any obligation on the part of QSNTS to form an opinion that all reasonable efforts were made directed at identifying, with precision, those persons who hold or may hold native title in the relevant area. The appellants contended that the result was that all reasonable attempts were not made to identify either group with precision.

35    The appellants argued the decision of QSNTS lacked an intelligible justification in the context of the evidence which disclosed that the conclusory statements in its certification were uninformed, based on a lack of knowledge going to reasonable efforts at identification and contrary to what had transpired in respect of the meeting. This argument ran as follows: in the circumstances of this case, where only one native title claim group for a registered native title determination application exists, the primary criterion for identification under s 203BE(5)(a) must be membership of the Wangan and Jagalingou People. While that did not preclude persons from attending by showing that they may hold native title rights on a different basis, identification of attendees at the authorisation meeting on 16 April 2016 as bona fide members of the Wangan and Jagalingou People was, at all times, the crucial aspect of certifying in respect of all reasonable efforts to identify persons who may hold native title. The evidence disclosed that the knowledge of QSNTS, the statutory certifier, was broader than that of Mr Smith and he was unaware of deficiencies in the processes undertaken to identify persons who may hold native title who were known, nonetheless, to QSNTS, including through Mr Fahey. It followed that the analysis as to whether there was an intelligible justification for the holding of the opinion that all reasonable efforts had been made is broader than just an analysis of the certificate and reasons of Mr Smith. Mr Smith’s lack of awareness of the lack of reasonable efforts means that Mr Smith’s certification cannot be a valid exercise of the obligation imposed on QSNTS.

36    In the present case, the appellants submitted that unreasonableness is inherent in Mr Smith’s action in proceeding to make a decision on behalf of QSNTS without accessing all information relevant to the proper formation of the statutory opinion. They argued that the vesting of the s 203BE(5) authority in QSNTS (with no formal provision for delegation) indicated that all matters relevant to the opinion within its knowledge must be considered by the person signing the certificate.

Consideration – the complete description grounds

37    We see no substance in the appellants’ “complete description” grounds. The starting point is that s 24CG referred to an application “in writing to the Registrar for the agreement to be registered on the Register…”. By s 24CG(2), the application must be accompanied by a copy of the agreement “and any other prescribed documents or information.” It is then that reg 7 provided that the application to register an area agreement, that is, an indigenous land use agreement (ILUA) of the kind mentioned in s 24CA, must be accompanied by the documents and information mentioned in the regulation. Relevantly, if the ILUA provides for the surrender of native title that is intended to extinguish native title rights and interests in an area, a document which must accompany an application must contain a complete description of the boundaries of the area.

38    In this case the application was accompanied by a complete description of the boundaries of the area within which the ILUA intended that native title rights and interests were “intended” to be extinguished in circumstances where s 24CG(2) required the application itself to be accompanied by a copy of the agreement. The appellants did not appear to contend that a “complete description” may not be effected by reference to another accompanying document, here the Adani ILUA itself.

39    Importantly, the definition of “complete description in relation to an area” in regs 5 and 7(2)(e) required a written description in the ILUA that enables identification of the boundary of the area in which it provides for the intention to surrender native title. Crucially, regs 5 and 7(2)(e) did not require the ILUA to identify the exact area that the ILUA intended might be surrendered, because reg 7(2)(e) used the expression “in an area”. No doubt that is because the Minister was conscious that many ILUAs, as a matter of practicality, would deal prospectively about matters that required further negotiation between the parties before reaching a final position concerning a particular contemplated future act, including arriving at an agreement about the precise location of a mining lease or other future act involving complete or partial surrender of native title rights and interests “in an area”.

40    A purpose of an authorisation under s 251A of the Act is to enable the persons at the meeting to confer authority to enter into an ILUA on terms that, subsequently, particular persons can act in accordance with the terms of the ILUA on behalf of the persons at the meeting who conferred their authority to make the ILUA. Those terms can include the capacity of particular persons, often described in ILUAs as “the native title party”, to make decisions in accordance with its provisions that cannot be, or have not been, resolved or decided at the s 251A meeting itself. Regulation 7(2)(e) did not require an ILUA to contain a complete description of the exact area of the intended surrender. Had the appellants been correct, the regulations could have provided that an ILUA had to specify the boundaries of each area that the parties had agreed would be surrendered on its registration or at some later time. However, the regulations are drafted to allow a degree of practical flexibility, while requiring that an ILUA identify the boundaries of an area within or “in” which the native title party intends that native title rights will be surrendered.

41    In our opinion the fine textual analysis of the Adani ILUA for which the appellants contend leads to a single point of construction which is whether the precise dimensions of the area where extinguishment may occur, the “complete description” area, must be known before the application is made. This is the consequence of the distinction between the “Surrender Area” and the “Surrender Zone”.

42    As we understood it, the appellants accepted that, if the “Surrender Zone” stood by itself it would answer the test of “complete description”, but they asserted that the smaller area, the “Surrender Area”, did not and it was the smaller area where extinguishment may occur.

43    For the reasons above, there is no basis in the language of regs 5 and 7(2)(e) for this construction. Neither does the broader context or purpose of the statutory regime support it. Accordingly, grounds 12-14 must be dismissed.

Consideration – Grounds 1-11

44    Grounds 1-11 concern the correct construction and application of s 203BE(5). These issues concern whether the primary judge erred in concluding that QSNTS had not made a jurisdictional error in certifying the opinion, in respect of the application for registration of the Adani ILUA, that:

(a)    all reasonable efforts had been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the Adani ILUA had been identified; and

(b)    all the persons so identified had authorised the making of the Adani ILUA.

45    QSNTS had to be of that opinion, under s 203BE(5)(a) and (b), before it certified, in writing, the application for registration of the ILUA.

46    As explained below in our consideration of the decision of the Registrar by a delegate to register details of the Adani ILUA, these grounds of appeal were misconceived, because any defects in QSNTS’ certification had no continuing effect after the appellants pursued their objection to registration under s 24CI. However, since these grounds were fully argued, we should state why they fail. We see no error in the primary judge’s rejection of the appellants’ construction of s 203BE(5)(a), that the critical question for a native title representative body, in forming the opinion referred to in s 205BE(5)(a), is “whether the efforts taken were reasonable in the sense of identifying, both inclusively and exclusively, every person of [Indigenous] descent who may hold native title, or otherwise has a characteristic from which it is reasonable to conclude they hold native title in the agreement area” (emphasis in original).

47    We also see no error in the primary judge’s rejection of the appellants’ construction that seeks to limit the identification process in s 203BE(5)(a) to identifying only those persons who can demonstrate, by some means, that they may hold native title in the area of the proposed ILUA.

48    The crux of the appellants’ contention appeared to be that in the circumstances of this matter, “identification” under s 203BE(5)(b) required that each person attending the authorisation meeting be assessed to determine whether he or she was a member of the Wangan and Jagalingou People or the W & J claim group and, if not, excluded from participating in the authorisation process. The statutory question under s 203BE(5)(a) is whether the representative body is “of the opinion” that “all reasonable efforts” have been made to identify all the persons who “hold or may hold” native title in the area. The Act required the representative body to form and certify its opinion on that question and if it held such an opinion to also form and certify its opinion under s 203BE(5)(b) that all persons so identified had authorised the making of the ILUA. The question under s 203BE(5)(a) (or s 24CG(3)(b)(i)) is not whether all persons having a proper or actual claim to be a member of a particular native title claim group, in fact, had been identified.

49    The appellants’ submissions on construction proceeded on an abstract and erroneous premise. The evidence that the primary judge accepted at [82]-[85] was that (with one exception) officers of QSNTS at the authorisation meeting on 16 April 2016 assessed that the persons who attended were descendants of the apical ancestors of the W & J claim group. That was sufficient to establish a proper and sufficient basis for QSNTS, through Mr Smith (who the appellants pleaded was authorised to act under s 203BE(5) on behalf of QSNTS) to form the opinion that all those persons, reasonably considered, “may hold” native title in the area. We see no factual basis for the appellants’ contention that the primary judge erred in not applying a more restrictive approach to the persons who might be entitled to authorise the Adani ILUA.

50    Ground 8 concerned the opinion of Mr Smith who signed the certificate in his capacity as the CEO of QSNTS. The starting point must be the certification that Mr Smith, acting as QSNTS (as admitted by the appellants and see too Hamilton v Whitehead (1988) 166 CLR 121 at 127-139 per Mason CJ, Wilson and Toohey JJ) gave in the certificate under s 203BE which the primary judge set out at [34], namely:

1.    All reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to the land or waters in the area covered by the Agreement have been identified.

(a)    QSNTS has undertaken extensive anthropological and genealogical research in relation to the W&J Native Title Claim as well as the region subject to the agreement.

(b)    QSNTS maintains a database of details concerning the identification of W&J People and is continuously engaging in a process of checking and updating the database.

(c)    The authorisation of the ILUA was the subject of widespread public advertising in seven newspapers:

I.    The Courier Mail – 16 March 2016;

II.    Fraser Coast Chronicle –18 March 2016;

III.    The Morning Bulletin – 18 March 2016;

IV.    The Townsville Bulletin – 18 March 2016;

V.    South Burnett Times – 22 March 2016;

VI.    The Koori Mail – 23 March 2016;

VII.    Central Queensland News – 23 March 2016.

(d)    Further notification, including a cover letter, a copy of the public notice and an information booklet regarding the ILUA, was sent to the mailing address of all those members of the W&J People on the database maintained by QSNTS.

2.    All the persons so identified have authorised the making of the ILUA.

The authorisation process for the making of the ILUA that has taken place can be described as an agreed and adopted decision-making process of the W&J People in authorising the ILUA. It involved:

(a)    The legal representative for the W&J Applicant in relation to this agreement consulted with QSNTS on 19 February 2016 and 11 April 2016;

(b)    Engagement between the Applicant to the W&J Native Title Claim and Adani at several properly notified and convened meetings of the Applicant, at which on each occasion a quorum of the Applicant were present, and at which decisions were made regarding the proposed authorisation of the ILUA, including approval of the final terms of the ILUA, the ancillary agreement to the ILUA, the meeting rules of conduct and proposed resolutions to be considered at the Authorisation Meeting;

(c)    The members of the W&J People, and any other persons who hold or may hold native [title] in the ILUA Area, being called to attend a meeting in Maryborough on Saturday, 16 April 2016 (Authorisation Meeting), which was independently facilitated;

(d)    Notification of the Authorisation Meeting having been given by way of widespread public advertising in seven newspapers and by way of individual mail-outs sent to all those persons on the QSNTS database of W&J People;

(e)    The Authorisation Meeting was held in Maryborough on Saturday 16 April 2016;

(f)    ARCHAEO Cultural Heritage Services, the Applicant’s usual service provider, being retained to assist the W&J People to register their interest in attending the Authorisation Meeting and providing reasonable travel assistance to do so;

(g)    QSNTS registering meeting attendees on the day of the Authorisation Meeting, with the assistance of their in-house anthropological team, ensuring that only those adult W&J People or other adult persons who hold or claim to hold native title in the ILUA Area being allowed entry to the Authorisation Meeting, and being entitled to vote on motions;

(h)    The registration and attendance of 340 adult members of the W&J People, comprising descendants of 12 of the 14 apical ancestors (who have known descendants) and one adult person who claimed to hold native title in relation to the ILUA Area, at the Authorisation Meeting;

(i)    The agenda, the meeting rules of conduct, clearly worded draft resolutions, a summary of the legal advice provided by HWL Ebsworth Lawyers and the information booklet regarding the ILUA being handed out to meeting attendees and displayed at the relevant times on large screens at the Authorisation Meeting;

(j)    General discussion of the issues notified to be the subject of Authorisation Meeting at the Authorisation Meeting, including question and answer sessions;

(k)    Legal advice on the issues notified to be the subject of Authorisation Meeting being provided by HWL Ebsworth Lawyers;

(l)    All resolutions being displayed and read out by the independent facilitator before voting, including meeting attendees being afforded the opportunity to speak for or against the motions;

(m)    The W&J People present at the meeting, and where appropriate, the other persons who were present and who hold or claim to hold native tide in the ILUA Area, then endorsing the resolutions, by way of a decision-making process resolved and agreed to at the Authorisation Meeting (by show of hands);

(n)    I am satisfied that through the holding of the Authorisation Meeting the W&J People authorised the making of the ILUA in accordance with the decision making process that was agreed to and adopted by the W&J People for that purpose.

51    The reasons that Mr Smith gave for QSNTS’ certification afford no support for the appellants’ submission that they lacked an evident and intelligible justification or were otherwise legally unreasonable. As the primary judge said at [150], those reasons demonstrated:

first, that they rely upon the extensive knowledge that QSNTS had gained as a native title representative body for the area concerned.… Secondly, the reasons show that Mr Smith relied upon the widespread public advertising of the 16 April 2016 authorisation meeting and upon the notices that were sent to members of the Wangan and Jagalingou People.… It is therefore quite apparent from those reasons that Mr Smith’s opinion was not devoid of an “evident and intelligible justification”. Nor do they reflect any lack of good faith, or evidence an opinion expressed arbitrarily or capriciously. To the contrary, they are properly focused on the efforts that were undertaken to identify the persons in question.

52    The primary judge also observed, at [151], that there was no evidence to show that the reasonable efforts, as described in the Certificate, had failed to identify any Indigenous person who held or may have held native title in the area of the Adani ILUA. That was to say, no one had come forward and claimed that he or she had not been identified by those efforts. To the contrary, the essence of the appellants’ case on their unreasonableness ground was that those efforts were too successful because too many people (being persons outside the Wangan and Jagalingou People and W & J claim group) attended the 16 April 2016 authorisation meeting.

53    The claimed failure by Mr Smith to have regard to mandatory relevant considerations has no separate substance. If Mr Smith was not bound to have regard to the laws and customs of the Wangan and Jagalingou People concerning the criteria by which a person is entitled to be a member of Wangan and Jagalingou People or the W & J claim group, as held by the primary judge at [157], the extent to which persons who attended the 16 April 2016 authorisation meeting and were permitted to vote and participate in the deliberations of that meeting, despite not being a member of Wangan and Jagalingou People or the W & J claim group (on the assumption they were not), was also not a consideration to which Mr Smith was bound to have regard when issuing the Certificate because the Act did not require that to occur: cf: Reg v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J.

54    The appellants’ central argument was that his Honour erred in his assessment of the evidence concerning how persons were allowed to attend and vote at the authorisation meeting on 16 April 2016, by finding that it was open to QSNTS, through Mr Smith, to certify the Adani ILUA pursuant to s 203BE(5). The section required that certification to be based on the representative body’s opinion that all reasonable efforts had been made, including by QSNTS itself, to ensure that all persons who hold or may hold native title in relation to land or waters covered by the Adani ILUA had been identified and that all of the persons so identified had authorised (in accordance with s 251A) the making of the Adani ILUA. The appellants argued that the evidence of the “efforts” fell short of what was reasonable because many persons who (so the argument speculated) had not been included on any database that QSNTS maintained of members of the Wangan and Jagalingou People and or the W & J claim group but were permitted to attend and vote on the say so of the 7 members of the applicant in the W & J native title claim who (unlike the 5 other members, being the present appellants) had told either QSNTS or ARCHEAO that those attendees were related to, or were themselves, one or more members of the claim group.

55    The appellants’ argument ignored the requirement of the express words of s 203BE(5)(a) that all reasonable efforts had been made to ensure that persons who “may hold” native title had been identified. Whether or not any newly or recently identified relative or other person claiming to be a member of the group was actually a person who held native title in relation to the land and waters covered by the Adani ILUA was not the question that s 203BE(5)(a) required a certifier to consider. Rather, the section required QSNTS (or, here, Mr Smith) to form the opinion as to whether all reasonable efforts had been made to identify, not only the persons who actually held, but also those who may hold, the relevant native title.

56    It was open on the evidence for his Honour to conclude, as he did, that Mr Smith was entitled to form the opinion, as the controlling mind of QSNTS, that all reasonable efforts had been made in accordance with s 203BE(5)(a) to identify all persons who hold or may hold native title in relation to the land and waters the subject of the Adani ILUA. That is because persons with knowledge of who their relatives, or members, of the claim group were, namely 7 of 12 members of the applicant for the W & J native title claim, present at the meeting accepted or recognised those persons, so identified, as ones who held, or may hold, native title in the relevant land and waters.

57    There was no evidence at the trial that it was not open to a certifier in the position of QSNTS (or Mr Smith as a person authorised to act on its behalf) to form the opinion, for the purposes of s 203BE(5)(a), that any person entitled to attend the meeting on 16 April 2016 had not been identified or that anyone (with one exception) who had attended or were entitled to attend, was not a person who held or may have held native title in the area the subject of the Adani ILUA.

58    The primary judge found that there was no evidence that any of the nebulous category of persons whose entitlement the appellants’ challenged and who attended and or voted at the authorisation meeting were not persons who may hold native title in the relevant land and waters. The reason that we have used the expression “nebulous category” in the preceding sentence is that the appellants never identified any person or persons whom they asserted had attended or voted but who was not capable of being included within the statutory description of a person who “may hold” native title in the area of land and waters the subject of the Adani ILUA.

59    Relevantly, Sub-div C of Div 3 of Pt 2 of the Act deals with ILUAs that are area agreements concerning land and waters in respect of all of which there is no registered native title body corporate (s 24CC). Ordinarily, in such a case, there will not be a determination of native title under the Act in respect of the land or waters the subject of the proposed or actual ILUA. Such an ILUA must be about a matter, including a particular act or other matter, that affects or concerns native title rights and interests in relation to the area covered by the ILUA (ss 24CA, 24CB).

60    The expression “all reasonable efforts” in s 203BE(5)(a) includes the word “reasonable”. The context is that in s 203BE, the Parliament sought to provide a mechanism to ensure that an ILUA could be made not only after a judicial determination of native title under the Act, but also in circumstances before and without, indeed, any such determination being sought in a proceeding. Where no determination, or even proceeding to seek one exists, it is only persons who “may hold native title” who can make an ILUA. At this stage, it is not often possible, or sensible, to conduct fulsome genealogical research into the composition of a claim group. As the Court’s experience in managing native title cases has shown, often during the conduct of a claimant application under s 61 (as defined in s 253) of the Act in which a determination of native title is sought, the description of the claim group, including the identification of apical ancestors, changes, sometimes more than once, as more detailed anthropological research has occurred during the interlocutory and, sometimes the hearing, phases of the proceeding.

61    Division 3 of Pt 2 of the Act is mainly concerned, as s 24AA(1) states, in dealing with future acts. The Parliament devised an elaborate statutory scheme that sought to balance the competing public, communal and private interests that confronted the nation in accommodating the consequence of the then recent recognition, in in Mabo v Queensland (No 2) (1992) 175 CLR 1 and the Act, of the actual or potential existence of native title rights and interests over much of the lands and waters in Australia. As the preamble of the Act recited, the Parliament recognised and wished to give effect to the imperative that “It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests”. The preamble then recorded that:

Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.

62    All of the persons in the “native title group” as defined in s 24CD(2) and (3) must be parties to an area ILUA (s 24CD(1)). The definition “native title group” comprises several alternatives, depending on whether or not there is a registered native title claimant or a registered native title body corporate in relation to any of the land or waters in the area. A “native title group” comprises each person nominated, or determined, under s 251A(2) by the native title claim group, to be a party to the ILUA, or, if there is no such person, a majority of the persons who comprise the registered native title claimant, together with all registered native title bodies corporate in relation to land and waters in the area and, if there is no such registered claimant or body corporate for any part of the area, then, in respect of that part, one or more of, first, any person who claims to hold native title in relation to land or waters or, secondly, any representative Aboriginal/Torres Strait Islander body (s 24CD(2)). If none of the above alternatives apply then s 24CD(3) provides that the native title group (for the purposes of s 24CD(1)), consists of one or more of “any person who claims to hold native title in relation to land or waters in the area” or any representative Aboriginal/Torres Strait Islander body for the area, and s 24CD(4) provides that where s 24CD(2) applies, one or more of the persons identified in s 24CD(3) may also be parties to the ILUA. Next, s 24CE provides that the ILUA may provide for consideration to be agreed by the parties for the grant of a freehold or lesser estate or interest in land. Critically, s 24CG applies to an area ILUA after it has been entered into by the parties to it.

63    In this context, Div 3 of Pt 2 created statutory mechanisms to allow persons who not only have native title rights and interests recognised by a judicial determination of native title under s 225 of the Act, but also those who claimed (“may hold”) (but had not yet established) native title rights and interests over particular land and waters to enter into an ILUA with third parties, including Governments, that could affect or even extinguish any actual or claimed native title rights and interests. As Heydon J, with whom French CJ, Gummow, Crennan, Kiefel and Bell JJ agreed, said in Edwards v Santos Ltd (2011) 242 CLR 421 at 431 [24]:

The function of the ILUA was to deal with problems arising from the fact that native title can be difficult to prove, and the processing of native title claims can take a long time. To use the words of the Explanatory Memorandum to the Native Title Amendment Bill 1997 [At para 7.2]:

“over most of mainland Australia, governments and others seeking to use land do not know if native title exists, and if it does, who holds it. It is difficult in such circumstances to have agreements which provide the necessary level of legal certainty. These provisions [including what is now Pt 2 Div 3 subdiv C of the NTA] are designed to give security for agreements with native title holders, whether there has been an approved determination of native title or not, provided certain requirements are met.”

Not only did the ILUA give security to the petroleum defendants in dealing with native title claimants who may become native title holders, but it gave the plaintiffs, as native title claimants, the opportunity to obtain immediate advantages which would otherwise be postponed until a perhaps distant day when their native title claim succeeds.

64    The construction of the provisions of the Act dealing with the promotion, creation and authorisation of ILUAs must be informed by this statutory purpose. The Parliament intended that provisions such as ss 24CG(3)(b)(i), 203BE(5)(a) and 251A(1) that refer to “persons who hold or may hold native title” or “the common or group rights comprising the native title”, should be construed to apply not only to persons who actually hold the native title pursuant to a determination under s 225, but also to those who may, or who claim to, hold such a title, even though events might later turn out that negate the existence of some or all of the possible or claimed native title rights and interests.

65    In Bygrave (No 3) 199 FCR at 119 [101], Reeves J was correct to construe the requirement in s 203BE(5)(a) both “expansively and inclusively”. Such a construction is essential to ensure that when an ILUA is made in accordance with a process under Div 3 of Pt 2 and authorised in accordance with s 251A(1), all persons who have or may have native title rights and interests in the land and waters covered by the ILUA will be bound by its terms. And, as a corollary, the other parties to the ILUA will be able to act as the ILUA contemplates, with the legal and commercial certainty that any actual or potential holder of native title rights and interests in the land and waters that the ILUA covers will be bound by its terms: see the preamble to the Act.

66    A representative body has the function, pursuant to s 203BJ(b), that it “must, …as far as is reasonably practicable, identify persons who may hold native title in the area for which the body is the representative body”. The use of the expression “as far as is reasonably practicable” in s 203BJ(b) reflected the intention of the Parliament that a representative body has a variety of obligations, functions and duties under the Act and limited funding to carry those out that is provided through appropriation by the Parliament. What is “reasonably practicable”, at an early stage of a claim for native title, in respect of identifying those persons not only in the claim group but also outside it who may have a claim, is likely to be substantively different from what is “reasonably practicable”, at different later times, as the claim evolves and the representative body, or the lawyers for the claim group, and any third parties claiming native title in the area covered by the claim, develop and pursue lines of anthropological and historical research to refine or prove the factual basis in support of a determination of native title under the Act. The representative body must do the best it can to carry out its function under s 203BJ(b), from time to time, having regard to its financial and other resources at the relevant time and the information actually or reasonably available to it in the then current circumstances. Thus, s 203BJ(b) interacts with the certification function of a representative body under s 203BE(5).

67    As the evidence at the trial confirmed, the cost of holding an authorisation meeting under s 251A, at which the convenors take active steps to ensure the attendance of as many members of the claim group and others who may hold (or claim that they hold) native title, can be, and often is, very substantial. Wide public advertising and the giving of other forms of public notice likely to come to the attention of any actual or possible holder of native title in the land and waters covered by a proposed ILUA, together with all anthropological and other relevant information currently or reasonably available that a representative body has considered (including material from any claim group or groups and others asserting native title rights and interests), advertising as well as direct communication, of notice of the s 251A meeting to any persons whom the representative body has identified to date (assuming that in doing so, at the time, it has made all efforts “as far as is reasonably practicable” under s 203BJ(b) to identify them) are likely, in most cases, to put a representative body in a position in which it can certify, under s 203BE(5)(a), that “all reasonable efforts have been made to ensure that all persons who hold or may hold native title…covered by” the proposed ILUA have been identified.

68    Here, for the reasons above, the primary judge had ample material before him that enabled him, correctly to dismiss the appellants’ challenges to the validity of QSNTS’s certification.

The Registrar’s decision – introduction

69    On 8 December 2017, a delegate of the Registrar accepted the Adani ILUA for registration and entered it onto the Register. However, as the delegate’s reasons were not in evidence below, at the trial the only bases on which the appellants sought to set aside the delegate’s decision were that, first, because QSNTS’ certification under s 203BE was invalid, Adani’s application, under s 24CG, to register the Adani ILUA was incompetent because it lacked an essential element and thus, the Registrar had no jurisdiction or power to register it and, secondly, the Adani ILUA allegedly did not provide a “complete description” of the area of land for which native title would be surrendered by the Adani ILUA (see [20] et seq above). We admitted the Registrar’s decision as to registration as evidence in the appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth). The delegate’s decision came about as follows.

70    On 27 April 2016, Adani applied to the Registrar to enter the Adani ILUA on the Register. On 21 September 2016, nine members of the Wangan and Jagalingou native title group, including the five appellants, made objections under s 24CI to the registration of the Adani ILUA. QSNTS, as representative body, the solicitors for the Wangan and Jagalingou people, and Adani’s solicitors, made submissions in response. And, on 2 and 8 December 2016, the objectors’ solicitors, Just Us Lawyers made detailed submissions for the objectors in reply. However, after the delegate had informed the parties on 23 December 2016 that she would proceed to make a decision, the Full Court delivered its reasons in McGlade v Native Title Registrar (2017) 251 FCR 172. On 10 February 2017, the delegate advised the parties that because that Full Court decision may have had an impact on the registrability of the Adani ILUA, the delegate would not make a decision until the Registrar had assessed the application of the Full Court’s reasons. Soon after, on 15 February 2017, the Government introduced into the Parliament the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 to reverse the effect of the decision in McGlade. That Bill was enacted, and the amendments commenced on 22 June 2017.

71    In the meantime, on 23 March 2017, the appellants commenced the proceeding below to challenge the certificate that QSNTS had given under s 203BE(1)(b) before the Registrar made the decision to register the Adani ILUA.

72    On 22 September 2017, the Registrar informed the parties to the proceeding before the primary judge that he considered that he had a duty to exercise his functions under s 24CJ and gave them 28 days to consider their positions. On 10 October 2017, Just Us Lawyers wrote in response and asked the delegate to consider further issues and material. On 23 October 2017, the delegate informed the parties and the objectors that she would give a decision on or about 8 December 2017. On 7 December 2017, the objectors provided a bundle of material which the delegate considered in her reasons.

73    The delegate made her decision pursuant to the procedure set out in Subdiv C of Div 3 of Part 2 of the Act. That subdivision provided that where, as here, an area ILUA had been certified by a representative body under s 203BE(1)(b), the parties to the ILUA may apply to the Registrar to enter it onto the Register.

74    The procedure for registration was that, following an application to register an ILUA, the Registrar must give notice of the agreement to, among others, any representative bodies in the area covered by the agreement and “any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate” (s 24CH). After such notice is given, but prior to registration, any person who holds or claims to hold native title in the area covered by the ILUA may object to its registration on the ground that one or both of the requirements in s 203BE(5)(a) and (b) was not satisfied (s 24CI).

75    The Registrar must decide, after the expiry of three months from when notice is given under s 24CH, whether or not to enter the ILUA on the Register (s 24CJ). Where, as here, the Registrar receives an objection under s 24CI, s 24CK sets out how the Registrar must arrive at the decision whether or not to register the ILUA as follows:

24CK  Registration of area agreements certified by representative bodies

Registration only if conditions satisfied

(1)  If the application for registration of the agreement was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)) and the conditions in this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.

First condition

(2)  The first condition is that:

(a)  no objection under section 24CI against registration of the agreement was made within the notice period; or

(b)  one or more objections under section 24CI against registration of the agreement were made within the notice period, but they have all been withdrawn; or

(c)  one or more objections under section 24CI against registration of the agreement were made within the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the Registrar that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned.

Second condition

(3)  The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement.

Matters to be taken into account

(4)  In deciding whether he or she is satisfied as mentioned in paragraph (2)(c), the Registrar must take into account any information given to the Registrar in relation to the matter by:

(a)  the persons making the objections mentioned in that paragraph; and

(b)  the representative Aboriginal/Torres Strait Islander bodies that certified the application;

and may, but need not, take into account any other matter or thing. (bold emphasis added)

76    The delegate explained that five of the appellants were among the nine persons who had objected to the registration of the Adani ILUA under s 24CI(1) on the ground that the requirements of s 203BE(a) and (b) had not been satisfied ([102]). Thus, the question for the delegate in exercising the Registrar’s powers under s 24CK(2)(c) was whether the delegate was satisfied in relation to QSNTS’ certification of the application that the requirements of s 203BE(5)(a) and (b) were not satisfied.

77    The appellants made a conscious decision to pursue their right of objection, under s 24CI, to the registration of the Adani ILUA. That involved them pursuing an administrative challenge to the subject matter of QSNTS’ certification under s 203BE, namely whether they could satisfy the Registrar, by the delegate, that the requirements of s 203BE(5)(a) and or (b) had not been met in relation to that certification. Once the delegate determined the appellants’ objection under s 24CK(1), for the reasons explained below, the opinion of QSNTS as to the requirements of s 203BE(5)(a) and (b) being met, that the appellants had impugned before the primary judge, was not the, or a, foundation of the registration of the Adani ILUA. Rather, the foundation of that registration was the decision of the delegate under s 24CK(1) and (2)(c) that she was not satisfied that the requirements of s 203BE(5)(a) and (b) were not satisfied in relation to QSNTS’ certification of the application to register the Adani ILUA.

78    It is important to bear in mind that s 203BE(1)(b) creates the certification function of a representative body, as the function of certifying in writing applications for ILUAs relating to areas of land or waters wholly or partly within the area for which it is a representative body. The expression “in relation to the certification of the application” by the representative body, in s 24CK(2)(c), qualifies the Registrar’s task. It is not to review the certification generally, but only to consider whether the objectors have satisfied the Registrar that one or both requirements in s 203BE(5)(a) or (b) have not been satisfied.

79    The representative body must form and state its opinion with brief reasons that both those requirements have been met (by force of s 203BE(5) and (6)) as a condition of its certifying an application for the registration of an area ILUA under s 203BE(1)(b). But the Registrar’s function, pursuant to s 24CK(1) and (2)(c) in dealing with an objection to registration, not to the certificate, is to form a state of mind, namely, satisfaction, about whether the objectors have established that one or both of the requirements in s 203BE(5)(a) and (b) were not satisfied. And, s 24CK(1) requires the Registrar to act on the state of mind he or she forms about whether or not the objectors have established that one or both of those requirements was not satisfied. The Registrar must register the ILUA by force of s 24CK(1) if the objectors do not satisfy the Registrar that one or both of the requirements in s 203BE(5)(a) and (b) were not met.

80    That being so, the registration of the Adani ILUA could only be set aside by the Court in a proceeding seeking judicial review of the delegate’s decision that the first condition in s 24CK(2) was satisfied. Instead, in their amended originating application below, the appellants sought declaratory relief before the primary judge that, first, the certificate was void and of no effect, secondly, the Registrar had no jurisdiction to consider the application to register the Adani ILUA and, thirdly, the decision of the Registrar to register it was void and of no effect. Although the third declaration may have been apt to set aside the delegate’s decision on the appellants’ objection under s 24CK(1), they did not impugn that decision. Instead, they only claimed the relief in the third declaration on the basis of their contentions, that we reject, that the application for registration was not accompanied by either a “valid” certificate given by the representative body, QSNTS, under s 203BE, or a document that contained a “complete description” of the area (see [37]-[42B] of the SOC).

81    The appellants’ argument, that a “valid” certification under s 203BE was an essential precondition to the jurisdiction (or power) of the Registrar under s 24CK(1) to consider Adani’s application under s 24CG to register the Adani ILUA, is misconceived. The appellants’ core contention was that a valid certification under s 203BE is a condition of a valid application, and a valid application, in turn, is a condition of a valid registration decision (whether under the non-objection provision or under s 24CK). The appellants wish to read, first, s 24CG(3) as requiring not merely a statement to the effect that the requirements set out in s 24CG(3)(b) had been met but that this must be a legally valid statement, and, secondly, the requirement for such a statement as a “mandatory” requirement, in the sense of going to the Registrar’s jurisdiction.

82    The simplest answer to that contention is that (as we explain in more detail in these reasons) it is inconsistent with the function of an objection procedure involving a decision on the merits (which is arguably in part to correct deficiencies that could be described as jurisdictional) to regard an irregularity in the information required to be provided to initiate the procedure as going to the jurisdiction or power to act under the procedure so initiated.

83    The point is one of statutory construction, but is well illustrated by the procedural history in the present case. Because s 24CK(2)(c) required the Registrar to form a state of satisfaction about whether the requirements of s 203BE(5)(a) and (b) were not satisfied in relation to the certification, after hearing the appellants’ objections to the application for registration pursuant to s 24CI(1), the first two of the declarations that the appellants sought were misconceived. That follows as a result of the appellants’ objection under s 24CI that made it the Registrar’s function to consider, afresh, whether the requirements of s 203BE(5)(a) and (b) had been satisfied.

84    As s 24CK(4) provided, the delegate had to take into account, as a mandatory relevant consideration, any information that the appellants gave in support of their objection and the certificate. Therefore the delegate had to treat that information as a fundamental element in considering whether or not the delegate was satisfied that the requirements of s 203BE(5)(a) and (b) had been satisfied in relation to the certification of the application to register the Adani ILUA by QSNTS: cf: Sean Investments 180 CLR at 329 per Mason J, with whom Gibbs J agreed. In other words, s 24CK(2)(c) required the delegate to make his or her own decision as to whether each of the requirements in s 203BE(5)(a) and (b) were satisfied and the objectors had the onus to establish that one or both of those requirements was not satisfied: Corunna v South West Aboriginal Land and Sea Council (2015) 235 FCR 40 at 50 [61] per Barker J.

85    The Registrar can take a representative body’s certificate under s 203BE(1)(b), into account, under s 24CK(4), in arriving at a state of satisfaction under s 24CK(1). However, the validity of the opinion of the representative body expressed in a certificate in respect of the requirements in s 203BE(5)(a) and (b) was not a condition for the registration of an ILUA after the Registrar has determined an objection under s 24CK(1). Section 24CK(1) prescribed two conditions that had to be satisfied, and, if they were, the Registrar had a duty to register the Adani ILUA. Those two conditions were prescribed in s 24CK(2) and (3) and those subsections identified, with s 24CK(4), the process that the Registrar had to follow in arriving at a decision whether or not to register the Adani ILUA.

The delegate’s reasons

86    The delegate gave detailed reasons for finding that she was satisfied, on the basis of the information before her, that, first, all reasonable efforts had been made to ensure that all persons who hold or may have held native title in the area had been identified and that the objectors had not satisfied her that QSNTS had not made all reasonable efforts to identify such persons in the circumstances (in compliance with the requirements in s 203BE(5)(a)) and, secondly, all persons identified had authorised the making of the Adani ILUA in compliance with s 203BE(5)(b).

87    Accordingly, she found that the first condition in s 24CK(2) was met, as, she also found, was the second condition (in s 24CK(3)). In those circumstances, s 24CK(1) provided that the Registrar had to register the Adani ILUA, which she did. Because the appellants have not challenged those reasons, there is no need to deal with them in these reasons.

The consequence of the Registrar’s decision

88    The requirements for certification of an ILUA by a representative body include what s 203BE(6) provides, namely that the certification contain, first, a statement to the effect that the body is of the opinion that the requirements of s 203BE(5)(a) and (b) have been met, and secondly, briefly stated, the body’s reasons for being of that opinion. The provision of the reasons under s 203BE(6)(b) will assist the Registrar to exercise the function, relevantly here under s 24CK(2)(c), by providing the information that the representative body considered in arriving at its opinion. In other words, the correctness of the representative body’s opinion is not the relevant consideration for the Registrar; rather the sole issue for the Registrar under s 24CK(2)(c) is to evaluate the objections and determine whether the objectors have satisfied the Registrar that the requirements of s 203BE(5)(a) and (b) were not satisfied in relation to the certification, based on all the material before the decision-maker. The representative body’s opinion, therefore, is not preclusive or conclusive of whether the Registrar must or can form the state of satisfaction required under s 24CK(2)(c).

89    The Registrar (or here, his delegate), relevantly, was authorised under s 24CK(2)(c) to register the Adani ILUA if the Registrar were not satisfied that the objectors had established that the requirements of s 203BE(5)(a) and (b) had not been met. Whether or not the delegate correctly or incorrectly decided that question did not involve, of itself, any circumstance that could be a jurisdictional error. The Act gave the delegate the authority to decide the facts, as to whether the requirements in s 203BE(5)(a) and (b) were met, correctly or not, provided that she did not commit a jurisdictional error in doing so under s 24CK(2)(c): Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 571-572 [66]-[68] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. The appellants did not challenge the factual findings of the delegate on their objection. Rather, they challenged the Registrar’s jurisdiction or power to register the Adani ILUA.

90    The validity or correctness of the certificate that QSNTS gave under s 203BE(5) and (6) was not a statutory condition of the Registrar’s power and duty to register the Adani ILUA if, as occurred here, there was an objection under s 24CI. That is because in such a case, s 24CK(2)(c) required the delegate to consider whether “in relation to the certification”, she was satisfied that the requirements of s 203BE(5)(a) and (b) had not been met. In other words, the Registrar, under s 24CK(2)(c), is not considering the opinion of the representative body, but only whether he or she is satisfied that the requirements of each of pars (a) and (b) in s 203BE(5) have not been met. Thus, the Registrar is bound to consider whether he or she is satisfied that:

    all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA have not been identified; and

    all the persons so identified have not authorised the making of the ILUA.

91    It follows that an objection under s 24CI can raise matters not before the representative body when it gave the certificate under s 203BE(1)(b) to show that, regardless of the representative body’s opinion as to the requirements in s 203BE(5)(a) and (b), the objective requirements in each of s 203BE(5)(a) and (b) had not been met.

92    In substance, here, the delegate addressed those very matters in considering, under s 24CK(2)(c), the objections in arriving at her conclusion that she was not satisfied that, either, all reasonable efforts had not been made to identify all persons who hold or may hold the relevant native title, or all such persons had not authorised the making of the Adani ILUA.

93    In those circumstances, once the delegate had made the decision under s 24CK and the Registrar carried out the statutory duty under s 24CK(1) to register the Adani ILUA, the appellants’ challenge to the validity of the certificate of QSNTS became inutile, since the Registrar’s decision was the only basis for registration.

94    The intention of the Parliament must have been to allow persons dissatisfied with, or adversely affected by, a certificate under s 203BE(1)(b), to have a merits review by the Registrar as to whether the two requirements in s 203BE(5)(a) and (b) had not been satisfied. An objector can exercise the statutory right to object to the registration of an ILUA, under s 24CI, on the basis that one or both of the requirements in s 203BE(5)(a) and (b) have not been met. That gave the objector an effective remedy in respect of the subject matter of a certification under s 203BE(1)(b), the result of which did not depend on the representative body’s opinion in the certificate.

95    The appellants, as persons affected by QSNTS’ certification of the Adani ILUA, elected to exercise their right under s 24CI of the Act to object to the registration of that agreement, by asserting that, contrary to QSNTS’ opinion in the certificate, the requirements of s 203BE(5)(a) and (b) had not been met. The Act, therefore, provided a statutory administrative process for the Registrar (or a delegate), as an officer of the Commonwealth, to review the question of whether those two requirements had been met in place of what previously had been the subject of a certification of the opinion of a representative body under the chapeau of s 203BE(5) (which, by force of the definition in s 201B, must be a body corporate or a corporation). No issue arose in the appeal about the intersection between the corporate constitution and nature of an eligible body in its permissible field of activities under the Act of the kind considered in relation to a challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277: cf at 290-291 [27]-[29] per Gleeson CJ; 296-297 [48]-[51] per McHugh, Hayne and Callinan JJ; 315-317 [120]-[126] per Kirby J.

96    Here, the Act provided, in ss 24CI-24CK, a detailed administrative process in which persons in the position of the appellants could object to the registration of an area ILUA on the basis that, despite the opinion of an eligible body (being the representative body), expressed in a certificate given under s 203BE(1)(b), the requirements of s 203BE(5)(a) and (b), in fact, had not been met. Thus, all that an objector needs to do under s 24CK(2)(c) is to satisfy the Registrar either that whatever occurred did not amount to all reasonable efforts to identify all persons who hold or may hold native title in the area or that someone so identified did not authorise the making of the ILUA: Corunna 235 FCR at 50 [61].

97    The position of the appellants in exercising their right to object to the registration of the Adani ILUA under s 24CI is relevantly indistinguishable from that of a person dissatisfied with an administrative decision who chooses to pursue a statutory administrative process of review of such a decision. Ordinarily, the validity of the impugned decision is not a precondition for the exercise of the right of the person affected to invoke a statutory right of review.

98    Here, even if any of the appellants’ grounds for challenging the validity of QSNTS’ certificate that they advanced to the primary judge were correct, so that the certificate might be found to have been affected by a jurisdictional error, they elected to pursue the right of objection under s 24CI and so ‘cured’ any effect of errors in the certificate. Indeed, as s 24CK provides, the question for the Registrar is whether, after hearing, at least, the objectors and the representative body, the requirements of s 203BE(5)(a) and (b), in fact, have not been met. Whether the area ILUA is registered after the Registrar determines an objection under s 24CK depends not on the opinion of the representative body expressed in the certificate, but on the Registrar’s independent decision as to whether he or she is satisfied that the statutory criteria under s 203BE(5)(a) and (b) have not been met: cf too: Calvin v Carr [1980] AC 574 at 595B-E, 596F-G per Lord Wilberforce (giving the advice of himself and Viscount Dilhorne, Lords Hailsham of St Marylebone, Keith of Kinkel and Scarman); Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 342-344 per Bowen CJ, 370 per Smithers J; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24; 139 FCR 344 at 352-354 [28]-[32] per Finn, Mansfield and Gyles JJ; Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337 at 346 [20] per Rares J.

99    Accordingly, the decision of the delegate under s 24CK(1) that the conditions in s 24CK itself were satisfied became the legally operative decision as to whether or not the requirements of s 203BE(5)(a) and (b) had been met. The delegate’s decision ‘cured’ any defect in QSNTS’ earlier certification under s 203BE(1)(b), if there were any, and replaced that with the new decision, and, as a result, the appellants’ challenge to that earlier certification is incompetent.

100    Alternatively, the existence of the right to object under s 24CI and the appellants’ exercise of that right means that we would not, as a matter of discretion, permit a challenge to the representative body’s certification under s 203BE in light of its replacement, as the operative decision in law, by the delegate’s decision. This is akin to what Mason J said in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116, where he explained that the exercise of a right of “appeal” to, or review by, one administrative body from a decision of another, is capable of “curing” any deficiency in the original decision, if the appellate or reviewing body acts in accordance with the rules of procedural fairness in determining the appeal or review. Mason J said (at 116; and see too per Barwick CJ at 110-111) that by availing of the right of administrative appeal or review:

the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing—in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal. (emphasis added)

101    The appellants did not challenge before his Honour, or until the Full Court raised the effect of the delegate’s decision in the course of argument on the appeal, the delegate’s decision on their objection under s 24CI (which did not raise the “complete description” ground). The appellants argued that if a certification under s 203BE were invalid, then the Registrar had no power to decide an objection under s 24CK. That was because, they submitted, s 24CL expressly made provision for how the Registrar had to determine an application for registration of an area ILUA that had not been certified at all, or had not been validly certified under s 203BE, by a representative body. They contended that it followed that the Registrar could only determine an objection under s 24CI if the representative body’s certification under s 203BE(1)(b) were valid and, if it were not valid, then s 24CL applied to govern the making of a decision whether to register an area ILUA.

102    The appellants’ argument must be rejected. First, there would be no point, if the argument were correct, in the Parliament providing, in s 24CI(1), that the sole grounds for an objection to an application for the registration of an area ILUA were that the requirements of s 203BE(5)(a) and (b) “were not satisfied in relation to the certification”. That is because the Registrar could have no power to register an area ILUA since to do so the Registrar would have to find that, despite the representative body’s certification, one or both of the requirements in s 203BE(5)(a) or (b), in fact had not been met, thus rendering that certificate invalid. And, on the appellants’ argument, because the Registrar found that invalidity, he had no power to arrive at that finding, thus rendering the statutory process inutile. Secondly, for the reasons we have given, the legislative purpose of s 24CI is to allow a full consideration of the merits of an objection that the requirements of s 203BE(5)(a) and (b) have not been met, regardless of the legal validity of the representative body’s opinion under s 203BE(5) and (6). Thirdly, s 24CL is directed to a situation arising under s 24CG(3)(b) of the Act, namely, where no representative body has certified the statement by the applicant for registration that, in substance, the requirements of s 203BE(5)(a) and (b) have been met. However, where, as in this case, the application under s 24CG(3)(a) includes a certification by a representative body pursuant to s 203BE(1)(b), then s 24CI applies.

The notices of contention

103    Neither notice of contention relied on the fact that the appellants had not challenged the delegate’s decision. Rather, each notice of contention and the written submissions of Adani and Queensland in support, relied on the existence of the Registrar’s powers to determine an objection as evincing a statutory intention that, once an ILUA is registered, a subsequent challenge to the process by which that registration occurred cannot lead to the registration being set aside. Adani and Queensland contended that s 24CG(3)(c) should be construed as referring to the existence, and not the validity, of a certificate. Both relied on s 24EB(1) and (2) which provided that, if an ILUA was registered, any future act done after registration “is valid to the extent that it affects native title in relation to land or waters in the area covered by the agreement”. They argued that this was a further indication that, once registered, as the Adani ILUA was, the Registrar’s decision to register it could not be attacked, except under s 199C which had no application to the appellants’ case.

104    Relevantly, s 199C conferred jurisdiction on this Court to order the Registrar to remove the details of an ILUA from the Register where a determination of native title has been made and:

(a)    any of the persons, whom the Court determined actually holds native title in relation to any part of the area covered by the ILUA, was not a person who authorised its making as referred to in a certificate given by a representative body under s 203BE(1)(b) ((s 199C(1)(b)); or

(b)    all of the parties consent or the Registrar believes on reasonable grounds that the ILUA has expired (s 199C(1)(c)); or

(c)    the Court is satisfied that a party would not have entered into the ILUA but for the fraud, undue influence or duress by any person (whether or not a party to the ILUA) (s 199C(3)).

105    There is not yet any determination of native title affecting part of the area covered by the Adani ILUA. Thus Adani and Queensland submitted, only the ground under s 199C(3) could give the Court jurisdiction to set it aside and the appellants had not alleged any fraudulent or other unconscientious conduct to support the Court having jurisdiction under s 199C.

106    It is not necessary to decide Adani’s and Queensland’s contentions that, in effect, s 199C provides the only grounds for removing details of an ILUA from the Register because of our conclusions above.

Conclusion

107    For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    12 July 2019

REASONS FOR JUDGMENT

PERRY J:

108    I am indebted to Rares ACJ and Robertson J for their comprehensive joint reasons (joint reasons) and agree with the orders which they propose.

109    As is apparent from the joint reasons, the appellant seeks declarations in the notice of appeal that the certification and registration of an Indigenous land use agreement between the first respondent, Adani Mining Pty Ltd (Adani), the third respondent, the State of Queensland, and the applicant for the Wangan and Jagalingou native title determination application (the Adani ILUA) is void and of no effect. The fourteen grounds of appeal (which are set out in the joint reasons at [13]) reduce to a challenge to two steps leading to the registration of the Adani ILUA under Part 8A of the Native Title Act 1993 (Cth) (the NTA).

(a)    First, the appellant contends that the certification of the application for registration of the Adani ILUA by the second respondent, Queensland South Native Title Services Ltd (QSNTS), under s 203BE of the NTA (the certification decision) is void by reason of jurisdictional error on the grounds that QSNTS acted unreasonably and failed to take into account relevant considerations (grounds 1-11, notice of appeal) (the certification grounds); and

(b)    Secondly, the appellant contends that the decision by a delegate of the fourth respondent, the Native Title Registrar, to register the Adani ILUA (the registration decision) is void by reason of jurisdictional error because the application to register the Adani ILUA was not accompanied by a prescribed document being a “complete description” of the surrender area as defined in reg 5 of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) (the Regulations) and therefore failed to comply with reg 7(2)(e) of the Regulations (grounds 12-14, notice of appeal) (the “complete description” grounds).

110    I agree for the reasons given in the joint judgment at [37]-[43] that the “complete description” grounds must fail.

111    I also agree that the certification grounds must fail. As Rares ACJ and Robertson J explain, notwithstanding any deficiencies which might have tainted the validity of the certification decision, that decision was superseded by the delegate’s decision which was not challenged by the appellant at first instance or on appeal: see the joint reasons at [69]-[102] above. In those circumstances, it is unnecessary to consider the certification grounds which should never have been raised. Nonetheless, I would indicate that I agree with the joint reasons that the primary judge was plainly correct in his construction of s 203BE(5) of the NTA and, in particular, in rejecting the submission that the critical question for a native title representative body in forming the opinion required by s 205BE(5)(a) is “whether the efforts taken were reasonable in the sense of identifying, both inclusively and exclusively, every person of [Indigenous] descent who may hold native title, or otherwise has a characteristic from which it is reasonable to conclude they hold native title in the agreement area” (emphasis in original): primary judgment at [145]; see the joint reasons at [46]-[48].

Associate:

Dated:    12 July 2019

SCHEDULE OF PARTIES