FEDERAL COURT OF AUSTRALIA

Native Title - determination that native title held by common law holders - application to extend time for nominations of prescribed body corporate under s 57(2)(a) - whether failure to comply with legislative requirements results in invalidity - whether extension should be granted.

Native Title Act 1993 - s  57

Project Blue Sky v ABA (1998) 153 ALR 490 - foll.

ERICA DEERAL (ON BEHALF OF HERSELF AND THE GAMAAY PEOPLES) & ORS v GORDON CHARLIE & ORS

QG 174 OF 1997

JUDGE:          BEAUMONT J.

PLACE:          CAIRNS

DATE:            1 JUNE 1998

ORDERS:

Upon the filing and serving of the undertaking to the Court in Schedule 1 hereto:

1.         The nominations referred to in paragraphs 4 to 15 inclusive of the determination made on 8 December 1997 (“the nominations”), be made in writing to the Court within four years of the date of this Order.

2.         That in the event that any applicant in these proceedings (“the existing applicant”) is, during the currency of these Orders, unable by reason of death, infirmity or incapacity or other reasons associated with custom and tradition to take any necessary step in these proceedings, any native title holder of the clan on whose behalf the existing applicant brought these proceedings, has liberty to apply to the Court to be substituted as the applicant representing that clan in place of the existing applicant.

3.         Until such time as a body is registered as the registered native title body corporate representing the common law holders of all or any of the clans referred to in paragraphs 4 to 15 inclusive of the determination, any agreement, certificate or other document which would otherwise be entered into or executed by the registered native title body corporate may be so entered into or executed on behalf of the common law holders by the person entitled to make the nomination, and four other common law holders of the relevant clan.

4.         Until such time as a body becomes registered as the registered native title body corporate for all or any of the clans referred to in paragraphs 4 to 15 inclusive of the determination, any notice, correspondence or other document required to be forwarded to the registered native title body corporate for any of those clans may be given to the applicant representative of the common law holders of that clan, at the address for service contained in Schedule 2 to these Orders.

SCHEDULE 1

Applicants’ undertaking to the Court (which may be given by the applicants’ solicitors on their behalf)

The applicants will use their reasonable endeavours to take all steps necessary on the applicants’ part to ensure that the nominations mentioned in Order 1 are made as soon as practicable.

SCHEDULE 2

Applicants’ address for service:-

Phillips Fox Lawyers

Level 4, National Mutual Tower

15 Lake Street

CAIRNS   QLD  4870

DX 41296 CAIRNS

Tel:       (07) 4031 6036

Fax:      (07) 4031 5587

Attention:  Georgia Denisenko

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BEAUMONT J:

On 8 December 1997 I made a determination of native title in the terms of a determination annexed to the reasons for judgment then given.  In essence, the determination reflected an agreement which had been reached by all parties concerned pursuant to the provisions of s 87(1)(a)(i) of the Native Title Act 1993 (“the Act”).  The parties requested the Court, pursuant to s 56(2)(c) of the Act, to make a determination that the native title rights and interests were held by the common law holders and the Court so determined. 

A separate question then arose as to the nomination required by s 57(2)(a) of the Act, of a prescribed body corporate (“PBC”) to perform the functions mentioned in s 57(3) of the Act.  Incidentally to the determination of native title, orders were made that representatives of the common law holders of the several clans concerned nominate such a PBC in writing to the Court within six months of the date of the determination.  The PBC would then perform the functions mentioned in s 57(3) after it became a registered native title body corporate.

In the case of several events in the nature of force majeure occurring, liberty to apply in this connection was reserved.  There is now before the Court a notice of motion filed on behalf of the applicants pursuant to the reservation of the liberty to apply.  The notice of motion seeks an extension of the time in which the respective nominations may be made. 

I have before me extensive evidence, none of which is now contentious, which indicates that there are very good reasons why the applicants were unable to make their nominations within the six month period.  In essence, the reason is that notwithstanding extensive negotiations between the solicitors for the applicants and the Registrar of Aboriginal Councils and Associations, it has been not possible to reach common ground in a number of areas of concern, at least without legislative amendment. I am satisfied the applicants have used their best endeavours by themselves and through their legal representatives to achieve nominations within the timeframe stipulated in my order but, notwithstanding those efforts, it has not been practicable to achieve their objective. 

I am now asked to extend the time for the making of the nomination for a period of four years from the date of this order.  This is a long period and the Court would normally be reluctant to allow an extension of that order.  However, in the special circumstances of this case and bearing in mind, in particular, the apparent need for legislative intervention, I am prepared to make the orders sought, but upon a condition to which I will return.

In approaching the present application, which relates, of course, to a matter of administration and management of the lands, as distinct from the existence of the native title itself, I take into account the circumstance that the relevant provisions of the Act do not themselves spell any invalidity.  That is to say, adopting the approach of the High Court of Australia in its recent decision in Project Blue Sky v ABA (1998) 153 ALR 490, it is a matter of construction of the purpose and object of the legislation as a whole to determine whether the Parliament intended that a failure to comply with a particular legislative requirement would carry with it the draconian consequence of invalidity. 

As the High Court there pointed out, a distinction is to be drawn generally, in public and administrative law, between acts which involve administrative invalidity on the one hand, and on the other, acts which may be unlawful in the sense that a contravention of the statute is involved and which, in the exercise of the Court's discretion, an injunction may run to enjoin a future apprehended breach of the law.  It seems that, in the present case, there is no invalidity involved and I have therefore approached the matter upon the footing that I am exercising, in effect, an administrative jurisdiction of the Court in the exercise, of course, of judicial power. 

As I have said, the extension sought is a lengthy one, but it is to be viewed in the context of an apparent need for legislative change and there are aspects of this which are of considerable complexity.  I would not, however, be prepared to grant such an extension on any open-ended basis.  In the course of hearing the application I indicated to Mr Clark, the solicitor for the applicants, that I would only be prepared to make the orders sought if the applicants were prepared to give a suitable undertaking to use their best endeavours to take all steps necessary on their part to ensure that the nominations were made as soon as practicable.  As I mentioned earlier, I would read the evidence given on behalf of the applicants as being entirely consistent with the giving of such an undertaking, and the matter has gone forward on that footing.

ORDERS

I therefore make the following orders:

1.         Upon the filing and serving of the undertaking in the schedule thereto, I make orders 1, 2, 3 and 4 in the minutes of order which I have initialled, dated today, and placed with the papers. 

I note that those orders contain a schedule to the effect that I have already read to the parties.  That is to say, it is there provided that the operation of these orders is conditional upon the solicitors for the applicants filing and serving a written undertaking to the Court on behalf of the applicants that the applicants will use their reasonable endeavours to take all steps necessary on the applicants' part to ensure that the nominations mentioned in order 1 are made as soon as practicable.

Associate:

Dated:              1 June 1998