FEDERAL COURT OF AUSTRALIA

QGC Pty Limited v Bygrave [2011] FCA 1457

FEDERAL COURT OF AUSTRALIA

QGC Pty Limited v Bygrave [2011] FCA 1457

CORRIGENDUM

1.    In paragraph 90 of the Reasons for Judgment, in the first sentence, “(at reasons [58] see [93] above)” should read “(at reasons [58] see [93] below)”.

Associate:

Dated:    24 January 2012

FEDERAL COURT OF AUSTRALIA

QGC Pty Limited v Bygrave [2011] FCA 1457

CORRIGENDUM

1.    In the legislation section of the Cover Sheet, “Aboriginal Land Regulation 1991 Act (Qld) s 19” should read “Aboriginal Land Regulation 1991 (Qld) reg 19”.

2.    In paragraph 12 of the Reasons for Judgment, “s 19 of the Aboriginal Land Regulation 1991 Act (Qld)” should read “reg 19 of the Aboriginal Land Regulation 1991 (Qld)”.

Associate:

Dated:    3 April 2012

THE COURT ORDERS THAT:

1.    Within seven days the parties are to bring in orders to reflect the conclusions reached in the reasons for decision published on 16 December 2011.

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

REASONS FOR JUDGMENT

Introduction

1    These proceedings concern a challenge to a refusal by Ms Louise Bygrave, a delegate of the Native Title Registrar (the first respondent) to register an agreement as an Indigenous Land Use Agreement (ILUA) under Div 3 of Subdiv C of Pt 2 of the Native Title Act 1993 (Cth) (the Act).

2    The agreement in question was made between QGC Pty Limited (the applicant) and Mr Russell Doctor and others in their capacity as the registered native title claimant for the Bigambul People’s native title claim (the second respondent). In these reasons I will refer to this agreement as the QGC–Bigambul agreement, the Bigambul People’s native title claim as the Bigambul People’s claim and the second respondent as the Bigambul People.

3    The QGC–Bigambul agreement relates to a large area of land and waters (approximately 21,500 square kilometres) in southern Queensland. It extends from the Queensland–New South Wales border in the south, between Texas, Goondiwindi and a point south-east of Talwood, northwards to a line that runs roughly parallel with, but some distance north of, the Moonee Highway, from approximately Kumbarilla (south-west of Dalby) to Teelba (north-east of St George). The eastern boundary curves from Texas in the south to a point west of Millmerran and then further west to Kumbarilla in the north, and the western boundary runs from approximately Talwood north-west towards St George to approximately the Moonee River, and then north-east to Teelba.

4    The Bigambul People’s claim, which was filed in 2009, covers the same area. In these reasons I will refer to this area as the Bigambul area.

5    The delegate’s refusal to register the QGC–Bigambul agreement as an ILUA followed from her conclusion that she was not satisfied that all the persons who hold or may hold native title in the land and waters within the Bigambul area had authorised the making of the agreement as required by s 251A of the Act. In particular, she was “not satisfied that the Kamilaroi/Gomeroi People, as persons identified through the process set out in s 24CG(3)(b)(i) [of the Act] have authorised the making of the [QGC–Bigambul agreement] as required by s 24CG(3)(b)(ii) and s 24CL(3) [of the Act].”

6    As may be apparent from the delegate’s conclusions, the central issues in these proceedings relate to the construction of ss 24CG(3)(b)(i) and (ii) and 251A of the Act. Before turning to consider that issue, it is convenient to briefly describe the parties to the proceedings, to set out some of the procedural and factual history and to provide some details of the statutory scheme that falls for consideration in the proceedings.

The parties and the relevant procedural history

7    In commencing these proceedings, QGC has relied upon various subsections of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth). There is no issue that QGC is an aggrieved person within the terms of the ADJR Act and that the delegate’s decision is a reviewable decision under that Act.

8    It is also not in issue that Ms Louise Bygrave is a duly appointed delegate of the Native Title Registrar under the Act. From an early stage in the proceedings Ms Bygrave indicated she would abide the decision of the Court. Thereafter she took no further part in the proceedings.

9    As I have mentioned above, the second respondent is the registered native title claimant for the Bigambul People’s claim, as that expression is defined in s 253 of the Act.

10    The third and fourth respondents were joined as parties to these proceedings by order of Dowsett J, essentially to provide a contradictor to QGC’s application. At the same time, it became apparent that the second respondent had a common interest with QGC in supporting the registration of the QGC–Bigambul agreement as an ILUA under the Act.

11    The fourth respondent is a representative Aboriginal/Torres Strait Islander body under Pt 11 of the Act. Its area of responsibility covers the State of New South Wales. Thus, the northern boundary of its area of responsibility is the Queensland–New South Wales border which is also the southern boundary of the Bigambul area. The Kamilaroi or Gomeroi People claim to hold native title in land and waters on both sides of the Queensland–New South Wales border, including a part of the Bigambul area. The representative Aboriginal/Torres Strait Island body with responsibilities under the Act for the Bigambul area is Queensland South Native Title Services (Queensland South). It is not a party to the proceedings.

12    The third respondent is the Chairman of the Kamilaroi Land Trust. That body is a Land Trust incorporated under s 19 of the Aboriginal Land Regulation 1991 Act (Qld).

13    Both the third and fourth respondents made submissions to the delegate on behalf of the Kamilaroi or Gomeroi People in relation to QGC’s application to register the QGC–Bigambul agreement. The words “Kamilaroi” and “Gomeroi” are different names for the same people so I will refer to them throughout these reasons as the Kamilaroi/Gomeroi People.

Factual background

14    QGC is involved in the development of the Queensland Curtis Liquefied Natural Gas project. That project involves the extraction of natural gas from the Surat Basin in southern Queensland and transporting it via a pipeline to Curtis Island near Gladstone for processing into liquefied natural gas for export overseas. The Bigambul area includes some of the area of land where this project is to be located. It is not disputed that the Bigambul People’s claim is the only registered native title claim in existence in respect of the project area. To develop the project, QGC will necessarily undertake “future act” activities (defined in [24] below) on the project area that will affect the native title rights and interests that are held in that land.

15    In late 2008, QGC commenced negotiations with the Bigambul People with a view to entering into an agreement that would operate as an ILUA under the Act. These negotiations eventually resulted in the QGC–Bigambul agreement.

16    On 12 December 2009, a meeting was held in Goondiwindi in South West Queensland, of those who hold or may hold native title in the Bigambul area. The main purpose of that meeting was to decide whether to authorise the making of the QGC–Bigambul agreement under the Act. The record of that meeting shows that approximately 141 people attended, including:

(a)    four people who identified themselves as Kambuwal People;

(b)    38 people who identified themselves as Kamilaroi/Gomeroi People;

(c)    six people who identified themselves as Bigambul People and Kamilaroi People;

(d)    75 people who identified themselves as Bigambul People; and

(e)    16 people who did not indicate a native title interest.

17    Five resolutions were put to that meeting, all of which were duly passed. They included resolutions:

(a)    to adopt a decision-making process to authorise the QGC–Bigambul agreement;

(b)    to authorise the making of the QGC–Bigambul agreement in accordance with the adopted decision-making process; and

(c)    to authorise QGC to apply to the Native Title Registrar to have the QGC–Bigambul agreement registered on the Register of ILUAs under the Act.

18    Prior to these resolutions being put to the meeting, approximately 40–50 people, a substantial portion of whom were Kamilaroi/Gomeroi People, walked out of the meeting and refused to take any further part in it.

19    Acting in accordance with the resolution described in [17(c)] above, on about 22 July 2010, QGC lodged an application with the Native Title Registrar for registration of the QGC–Bigambul agreement as an ILUA under the Act.

The purpose and statutory scheme of the ILUA provisions of the act

20    Before detailing the history of the application to register the QGC–Bigambul agreement as an ILUA, it is appropriate to outline the purpose and statutory scheme of the ILUA provisions of the Act. These matters have been examined in a number of judgments of this Court in recent years. They include: Kemp v Native Title Registrar (2006) 153 FCR 38, [2006] FCA 939 (“Kemp”) (at [13]–[25]) per Branson J; Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150, [2008] FCA 1469 (“Fesl”) (at [17]–[34]) per Logan J and my decision in QGC Pty Limited v Bygrave (No 2) (2010) 189 FCR 412, [2010] FCA 1019 (“Bygrave”) (at [19]–[25]).

21    It is convenient to begin with the purpose of the ILUA provisions of the Act. That was described by Logan J in Fesl at [21] and by myself in Bygrave at [58]–[60]. In particular, in Fesl at [21], Logan J observed that the purpose balanced the two main objects of the Act by giving fulsome recognition to native title and at the same time allowing those who hold that native title to agree to others carrying out activities on land and waters that may affect it. His Honour said:

The statutory provision for the making of an area agreement in respect of an area even where there are no registered native title claimants or registered native title bodies corporate balances two of the main objects of the Native Title Act. Out of an abundance of caution and evidencing the recognition by the Parliament of the importance of native title, it liberalises membership of a “native title group” in those circumstances to the extent of permitting those who do nothing more than claim to hold native title in relation to an area to have an opportunity to be heard and to have an opportunity to participate in decision-making. In this fashion the provision can be seen as a benign endeavour, out of an abundance of caution, to preserve native title where it may exist, fulfilling the object in s 3(a) Native Title Act. At the same time, by permitting the making in such circumstances of a consensual agreement the effect of which may be to extinguish native title by a future act done under the authority of a registered agreement, the Native Title Act serves the object in s 3(b) by establishing a way in which a future dealing concerning native title may proceed.

22    In Bygrave at [59], I made similar observations as follows:

[T]he ILUA process in the Act is intended to achieve a balance between allowing future acts to be validated, so as to provide certainty for the broader Australian community, but at the same time, ensuring that those who hold, or claim to hold, native title in the land and waters affected by such future acts, agree to them being undertaken and, if they do, to obtain a corresponding benefit from so agreeing. By this process, those who hold or claim to hold native title in such land and waters should be able to share in the benefits that flow from the future use of their native title rights and interests in that land and waters.

23    Turning then to the scheme of the ILUA provisions, the first thing to be observed is that ILUAs are creatures of statute: Kemp at [13]. Once an agreement is entered onto the Register of ILUAs (established under s 199A of the Act), it binds both the parties to it and “all persons holding native title in relation to any land or waters covered by” it: s 24EA(1).

24    For present purposes, a “future act” (as defined in s 233) is any “act” (as broadly defined in s 226) which “affects” native title. “Affect” is defined in s 227 to mean it extinguishes, or is wholly or partly inconsistent with the continued existence, enjoyment, or exercise of, native title: Bygrave at [19]. A future act will be valid if the parties to an ILUA consent to the act being done (ss 24AA(3) and 24EB): Kemp at [13].

25    There are three different kinds of ILUAs under the Act: body corporate agreement ILUAs, area agreement ILUAs and alternative procedure agreement ILUAs. Subdivisions B, C and D of Div 3 of Pt 2 prescribe what is required for an agreement to be a body corporate agreement ILUA, an area agreement ILUA and an alternative procedure agreement ILUA, respectively: Bygrave at [20].

26    The QGC–Bigambul agreement is an area agreement ILUA. An area agreement ILUA cannot be made if there are registered native title bodies corporate in relation to all of the area of land covered by the agreement (s 24CC) : Kemp at [14]. Self-evidently, that is not the case with the QGC–Bigambul agreement.

27    The provisions in Subdiv C, dealing with area agreement ILUAs, are essentially split into two groups: those that prescribe the prerequisites for an area agreement ILUA (ss 24CA to 24CE) and those that prescribe the procedural requirements for the registration of an agreement as an area agreement ILUA (ss 24CF to 24CL): Bygrave at [21].

28    In summary, the prerequisite provisions (apart from s 24CC, which is already described above at [26]) require that: an area agreement ILUA must be about one or more of a number of subject matters (set out in s 24CB) in relation to an area of land; include certain specified persons as parties to the agreement (see s 24CD); and be given for any lawful consideration and subject to any lawful conditions (see s 24CE): Bygrave at [22].

29    The procedural requirements for registration are: making an application for registration of the agreement on the Register of ILUAs (see s 24CG); giving public notice of specified details of the agreement (see s 24CH); lodging objections against the registration of the agreement (see s 24CI); and deciding whether or not to register the agreement on the Register of ILUAs (see ss 24CJ, 24CK and 24CL): Bygrave at [23].

30    Any party to an area agreement may, if all of the other parties to the agreement agree, apply to the Registrar for the agreement to be registered on the Register (s 24CG(1)): Fesl at [21]. This brings me back to the application QGC lodged to register the QGC–Bigambul agreement I have already mentioned at [19] above.

The QGC–Bigambul agreement registration application

31    The QGC–Bigambul agreement registration application was accompanied by a document entitled “Statement to the NNTT” (viz the National Native Title Tribunal) which had attached to it eight other documents. It was also accompanied by a statement in the terms of s 24CG(3)(b) to the effect that:

(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; and

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

32    Under s 24CG(2), an application for registration must be accompanied by a copy of the agreement and certain other information and documents that are prescribed in reg 7 of the Native Title (Indigenous Land Use Agreements) Regulations 1999. One obvious purpose of these provisions is to ensure the Registrar is provided with the critical details of which notice has to be given under s 24CH of the Act. Those critical details are spelt out in s 24CH(2). They include: the area of land covered by the agreement (see s 24CH(2)(a)); the name and contact address of each party to the agreement (see s 24CH(2)(b)); and the details of the future acts that are to be validated by the agreement (see s 24CH(2)(c)): Bygrave at [24].

33    Once the Registrar receives a valid application for registration under s 24CG of the Act, he or she is required to give this s 24CH notice. Among other things, this notice has to specify a notification day. That day marks the commencement of a three months notice period for the agreement: s 24CH(2) and (3).

34    From about this point an application for registration of an agreement as an area agreement ILUA takes one of two paths, depending upon whether or not it was certified by the representative Aboriginal/Torres Strait Islander body for the area concerned. Section 203BE(1)(b) and (5) prescribe what is required in such a certificate. Those requirements are essentially identical to the requirements set out in s 24CG(3)(b) (see [31] above).

35    The QGC–Bigambul agreement was not certified by Queensland South. If it had been, the notice of the agreement under s 24CH would have included a notice under s 24CH(2)(d)(i) to the effect that:

any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification; or

36    Thereafter, during the three months notice period, a person would be entitled to object under s 24CI on the sole ground that: “the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification”: see 24CI(1). Then, any such objection would have to be considered by the Registrar as one of the two conditions of registration set out in s 24CK.

37    However, because the QGC–Bigambul agreement was not certified by Queensland South and instead contained a statement in the terms of s 24CG(3)(b), it took the second available path. This meant that the notice of the agreement under s 24CH stated, in accordance with s 24CH(2)(d)(ii), that:

any person claiming to hold native title in relation to land or waters in the area covered by the agreement may wish, in response to the notice, to make a native title determination application or equivalent application under a law of a State or Territory.

38    The Registrar gave notice of the QGC–Bigambul agreement in accordance with s 24CH of the Act, specifying 8 September 2010 as the “notification date” for the agreement. As a result, the “notice period” for the agreement was from 8 September 2010 to 8 December 2010. The notice included a statement in the terms set out in [37] above.

39    Section 24CJ of the Act provides that the Registrar must, after the end of the notice period under s 24CH, decide whether or not to register the agreement on the Register of ILUAs. However, that section further provides that in a case where s 24CL is to be applied, the Registrar must not do so until all persons covered by s 24CL(2)(b) are known, ie until the registration process for any native title determination application filed during the notice period has been completed, including any challenges associated with that process: Kemp at [24].

40    Section 24CL is the corresponding provision to s 24CK (see [36] above). It sets out the conditions that must be satisfied for the Registrar to register the agreement as an area agreement ILUA where it has not been certified by the representative Aboriginal/Torres Strait Islander body for the area. The first condition (in s 24CL(2)) requires any person who is, at the end of the notice period, a registered native title claimant, to be a party to the agreement.

41    At this point, it is apt to refer to what the Full Court said in Murray v National Native Title Tribunal (2003) 132 FCR 402; [2003] FCAFC 220 (Murray) (at [23]) about the purpose of ss 24CG and 24CL of the Act. It said the purpose was: “to ensure that all persons who hold, or may hold, native title in the area have been identified and notified of the agreement and have either authorised the making of the agreement or successfully taken steps to formalise their claim to hold native title in relation to the land or waters in the area covered by the agreement”.

42    It is not disputed that neither the Kamilaroi/Gomeroi People, nor anyone else, filed a native title determination application during the notice period for the QGC–Bigambul agreement. Because of this, the delegate found, not surprisingly, that the first condition in s 24CL(2) had been met.

43    The second condition prescribed by s 24CL is linked to the provisions of s 24CG(3)(b). In particular, it requires the Registrar to consider whether the requirements in that section have been met: s 24CL(3). In making that decision, the Registrar is required to take into account the statements made in the registration application and any information given to the Registrar on the matter by any representative Aboriginal/Torres Strait Islander body, or any other body or person: s 24CL(4).

44    The requirements of s 24CG(3)(b) are set out at [31] above and do not require repeating. As the delegate correctly observed in her reasons for decision, there are two sets of requirements, one in each of subss (i) and (ii). The delegate described this as a two step process and I will adopt that nomenclature in these reasons. I will describe what the delegate concluded about each of these steps when I come to consider her reasons for decision below. Before doing that, I will complete my survey of the ILUA provisions of the Act.

45    The word “authorised” in s 24CG(3)(b)(ii) is, as the footnote to that section states, defined in s 251A of the Act. As Logan J correctly observed (with respect) in Fesl (at [26]), “[s]trictly, a footnote does not form part of an Act: s 13 Acts Interpretation Act. Nonetheless, notwithstanding some infelicity in its drafting, it is tolerably clear that s 251A does give content to what amounts to “authorise” for the purposes of s 24CG(3)(b)(ii) of the [Act].” It may also be noted that the word “authorise” is defined in s 253 of the Act to mean, relevantly: “(a) in relation to the making of indigenous land area agreements—has the meaning given by section 251A”. It will be noted that this definition is confined to area agreement ILUAs. Presumably it is so confined because no authorisation process is required for the other two kinds of ILUAs under the Act.

46    Like s 24CG(3)(b) of the Act, s 251A is central to the main issues in these proceedings. It is therefore appropriate to set it out in full. It provides:

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.

The delegate’s decision on the QGC–Bigambul registration application

47    I will now turn to the delegate’s decision and outline how she applied these ILUA provisions of the Act to the QGC–Bigambul registration application. First, it is necessary to record a little more of the procedural history to the application. During the notification period, each of the third and fourth respondents submitted an objection to the registration of the QGC–Bigambul agreement. In his objection, the third respondent said, among other things, that: “we [the Kamilaroi People] claim rights and interests over the lands subject to this Indigenous Land Use Agreement and have not been given an opportunity to take part in the process”. The fourth respondent objected on the basis that the “area of the agreement includes the country of both Bigambul and Gomeroi People”; and “there is no material that demonstrates that all those persons who may hold native title in relation to the agreement area participated in its authorisation”.

48    As QGC’s counsel pointed out, and as I have already noted above (at [34]–[36]), an “objection”, as such, is only countenanced under the area agreement ILUA registration process, if the agreement took the certification path outlined above and the s 24CH notice included a notice calling for objections. In that event, if a party wished to lodge an objection it was limited to the sole ground that the certification had not met the relevant requirements in the Act. Of course, that path was not followed in relation to the QGC–Bigambul registration application because it was not certified by Queensland South. Nonetheless, the delegate proceeded to consider both these objections, presumably as information she was required (or chose) to take into account acting under s 24CL(4) (see at [43] above). QGC’s counsel also pointed out that, in their objections to the application, the third and fourth respondents did not identify who the Kamilaroi/Gomeroi People were and did not identify the area of land within the Bigambul area in relation to which they claimed to hold native title rights and interests.

49    The delegate delivered her decision on 12 April 2011. She began her reasons for decision by setting out the procedural history to the application, including the details of the documents and information that had been submitted to her. She also set out the relevant statutory provisions and summarised the submissions made on behalf of QGC, the Bigambul People and the Kamilaroi/Gomeroi People.

50    Most of the delegate’s decision is not in issue. However, for completeness, I will set out her findings on the more significant undisputed issues before turning to those aspects that are in dispute. The delegate’s findings that are not in dispute include the following:

(a)    the QGC–Bigambul agreement was an area agreement ILUA under s 24CA of the Act;

(b)    because the application for registration of the QGC–Bigambul agreement was not certified by Queensland South as the representative Aboriginal/Torres Strait Islander body for the area, the delegate was required to make her decision under s 24CL and not s 24CK of the Act;

(c)    because the registered native title claimant for the Bigambul People was a party to the QGC–Bigambul agreement, the requirements of s 24CL(2)(a) of the Act had been met;

(d)    because there were no other native title determination applications lodged over the area during the s 24CH notice period, no other person was required to be a party to the QGC–Bigambul agreement for the purposes of s 24CL(2)(b) of the Act;

(e)    thus, as noted above at [42], the first condition in s 24CL(2) had been met; and

(f)    the first step in the two step process under the second condition in s 24CL(3), as prescribed by s 24CG(3)(b)(i), had been met. Specifically, the delegate was satisfied that all reasonable efforts were made to ensure that all persons who hold or may hold native title in relation to land or waters covered by the QGC–Bigambul agreement, were identified. I will address an objection the Kamilaroi/Gomeroi People have raised to a related aspect of this finding at [56] below.

51    That leaves the second step in the s 24CG(3)(b) requirements: that prescribed by s 24CG(3)(b)(ii). This is where the main issues in this case arise. In short, they revolve around the meaning of the expression “all persons who hold or may hold native title” in s 24CG(3)(b)(i), the expression “all the persons so identified have authorised the making of the agreement” in s 24CG(3)(b)(ii) and the word “authorised” in ss 24CG(3)(b)(ii) and 251A of the Act. This includes the expression in the latter section: “the persons who hold or may hold the common or group rights comprising the native title”.

52    The delegate approached these issues in the following manner. First, at [88]–[103] of her reasons, she examined ss 251A and 24CG(3)(b)(i) and considered and rejected many of the submissions made by QGC as to how those provisions were to be construed. In that process, she referred extensively to the decision of Branson J in Kemp. Then the delegate proceeded to ask herself (at reasons [104]) five questions as follows:

(a)    are Kamilaroi/Gomeroi People persons who were identified through the process required by s 24CG(3)(b)(i)?

(b)    were Kamilaroi/Gomeroi People adequately notified about the meeting to authorise the ILUA in Goondiwindi on 12 December 2009?

(c)    do Bigambul People and Kamilaroi/Gomeroi People comprise a single native title group?

(d)    did the Bigambul People authorise the making of the Bigambul–QGC ILUA?

(e)    did the Kamilaroi/Gomeroi People authorise the making of the Bigambul–QGC ILUA?    

53    Thereafter the delegate answered these five questions as follows:

(a)    are Kamilaroi/Gomeroi People persons who were identified through the process required by s 24CG(3)(b)(i)?: Yes (at reasons [106]) as follows:

[106]    It is my view, based on the material set out in the application (for example, see [46](d) to (k) above) and the anthropological research undertaken by NTSCORP (see [65] above), that the Kamilaroi/Gomeroi People’s claim as persons who hold or may hold native title in the agreement area is more than ‘merely colourable’. As such, it would not seem to have been open to the ILUA parties, any more than it would be to the Registrar or her delegates, to conclude that the Kamilaroi/Gomeroi People’s claim was ‘without substance and, for that reason’, that their authority ‘for the making of the agreement [was] unnecessary’ – Kemp at [59].

(b)    were Kamilaroi/Gomeroi People adequately notified about the meeting to authorise the ILUA in Goondiwindi on 12 December 2009?: Yes (at reasons [108] and [111]) as follows:

[108]    I refer to [46(b)] and [47(a)–(c)] above, which sets out the notification process for the meeting to authorise the making of the Bigambul—QGC ILUA in Goondiwindi on 12 December 2009. In summary, the notification process included informing the identified Indigenous respondents to the Bigambul application by letter about the meeting; placing public notices in nine publications approximately three weeks prior to the meeting date; placing posters advertising the meeting on public/community noticeboards; and advising members of the Bigambul native title claim group by telephone, email or in person prior to the meeting.

…

[111]    In response to whether Kamilaroi/Gomeroi People were provided adequate time and resources to attend the authorisation meeting, I consider the public notification process undertaken approximately three weeks prior to the authorisation meeting. I also take into account the ‘record of meeting’ at Attachment G of the Statement to the NNTT, which shows that approximately 44 people of a total 141 people recorded their identity as ‘Kamilaroi’ (38 people) or ‘Bigambul and Kamilaroi’ (six people) at the authorisation meeting. It is my view that the number of Kamilaroi/Gomeroi People at the meeting suggests that they were adequately notified about the authorisation meeting and able to attend the meeting.

(c)    do Bigambul People and Kamilaroi/Gomeroi People comprise a single native title group?: No (at reasons [116]–[119] and [121]) as follows:

[116]    I note that NTSCORP assert that there is one apical ancestor in common between the registered Bigambul People native title claim and the Kamilaroi/Gomeroi People. I also observe that there were six people at the authorisation meeting on 12 December 2009 who identified themselves as ‘Bigambul and Kamilaroi’. However, in my view, the fact that there may be some overlap between the Bigambul native title claim group and people who identify as Kamilaroi/Gomeroi because of one common ancestor does not amount to sufficient evidence that the two groups are one and the same. In particular, the submission from NTSCORP specifically states that most of the Gomeroi People who attended the authorisation meeting on 12 December 2009 are a descendant of the one common apical ancestor and ‘do not identify as Bigambul People’ (see [68] to [69] above).

[117]    Above at [90] to [103], I discussed the decision in Kemp, where Branson J distinguished between the ‘native title group’ for the purpose of who is required to be a party to the agreement pursuant to s. 24CD (in this case, the registered native title claimant for the Bigambul People native title claim) and the people identified through the process set out in s. 24CG(3)(b)(i). Section 24CG(3)(b)(ii) requires the persons identified by s. 24CG(3)(b)(i) to authorise the making of the agreement – Kemp at [15] and [54]. As I noted above, where there are two or more groups identified and their respective claims to hold native title are in conflict, then these different groups may separately authorise the making of an agreement – Kemp at [40], [41] and [54].

[118]    It is evident on the information before me, summarised at [115] above, that in relation to the Bigambul–QGC ILUA, both the Kamilaroi/Gomeroi People (identified through the process required by s. 24CG(3)(b)(i) and the Bigambul People (the registered native title claimant) are ‘persons in different communities or groups’ who ‘may separately authorise the making of an agreement’ – Kemp at [54].

[119]    As set out at [90] to [103] above, I also find that QGC’s contention that Kemp supports the view that there is no requirement for each group or community to separately authorise the ILUA is wrong in law.

…

[121]    In this case, no-one is contending that the Kamilaroi/Gomeroi People and the Bigambul People are ‘a single community or group, the members of which together the common or group rights comprising … native title’ (sic) in relation to the ILUA area. Indeed, the material provided by the ILUA parties in the application acknowledges that there is a conflict over the boundaries between the two groups: see, for example, paragraphs [2](a) and (b) of the ‘record of meeting’ at Attachment G of the Statement to the NNTT. Further, the facts before me, as with Branson J in Kemp, do not suggest a ‘dissident’ person or a broader group within which there are differing views – Fesl at [63]. Rather, the material before me indicates that the Bigambul People and the Kamilaroi/Gomeroi People are two separate groups who have conflicting native title interests over different parts of the ILUA area.

(d)    did the Bigambul People authorise the making of the Bigambul–QGC ILUA?: Yes (at reasons [123]) as follows:

[123]    I have not received any submissions which propose that the Bigambul People have not authorised the ILUA in accordance with s. 251A(b). Therefore, on the basis of the information provided in the application, I am satisfied that the Bigambul People have authorised the making of the Bigambul–QGC ILUA. In particular, I refer to paragraph [9.9] of the Statement to the NNTT and paragraph [5](a) of the ‘record of meeting’ at Attachment G of the Statement to the NNTT, which sets out the seven resolutions made by the Bigambul People native title claim group, including authorising the making of the ILUA.

(e)    did the Kamilaroi/Gomeroi People authorise the making of the Bigambul–QGC ILUA?: No (at reasons [139]–[141]) as follows:

[139]    I note that the ‘record of meeting’ shows that each of the persons named as supporting the resolutions on behalf of the ‘Bigambul Area Group’ identifies themselves in the attendance list as a Bigambul person. Indeed, no one named as a person moving or seconding any of the resolutions by the ‘Bigambul Area Group’ identifies themselves as Kamilaroi/Gomeroi. Thus, although the ‘Bigambul Area Group’ purports to include people who hold or may hold native title in the ILUA area, there is no evidence that demonstrates that any Kamilaroi/Gomeroi People participated in the process by the ‘Bigambul Area Group’ to authorise the making of the ILUA.

[140]    As the material before me shows that, at the most, only a few Kamilaroi/Gomeroi People can have remained in the meeting and there is no information that supports the participation of any Kamilaroi/Gomeroi People in the authorisation process, the question is whether Kamilaroi/Gomeroi People can be bound by the process undertaken by the ‘Bigambul Area Group’ to authorise the Bigambul–QGC ILUA. In considering this question, I refer to my reasons at [103] above and the requirement for each native title group to have the opportunity to decide whether or not to authorise the making of the ILUA in accordance with that process.

[141]    Based on the material before me, I cannot be satisfied that the Kamilaroi/Gomeroi People either:

a)    had an opportunity to determine a decision making process in accordance with ss. 251A(a) or (b); or

b)    participated in the process by the ‘Bigambul Area Group’ to authorise the making of the ILUA; or

c)    otherwise participated in a separate process to authorise the Bigambul–QGC ILUA pursuant to s. 251A.

54    The delegate’s ultimate conclusion was that, because the second step in the s 24CG(3)(b)(ii) requirements was not met, the second condition under s 24CL had not been met. She expressed that (at reasons [142]–[143]) as follows:

[142]    I am therefore not satisfied that the Kamilaroi/Gomeroi People, as persons identified through the process set out in s. 24CG(3)(b)(i), have authorised the making of the Bigambul—QGC ILUA as required by s. 24CG(3)(b)(ii) and s. 24CL(3).

[143]    Consequently, I am not satisfied that the second condition of s. 24CL is met.

55    The main issues in these proceedings are bound up in the delegate’s answers to questions (a) and (c) above. I would add that, in answering question (e) above, the delegate proceeded on the basis that the Kamilaroi/Gomeroi People were a separate conflicting group who had to separately authorise the agreement under s 251A. Thus her answer to that question, while involving findings of fact, was based on her construction of s 251A and those findings of fact will stand or fall depending on whether that construction is correct as a matter of law.

56    At this point, it is also convenient to dispose of a submission made by Ms Phillips for the third and fourth respondents. This goes to the delegate’s conclusion at [53(b)] above. She submitted that the delegate had erroneously stated that the notice for the authorisation meeting invited those “persons who hold or who claim to hold native title in the land and waters” concerned to attend the authorisation meeting. She submitted that the delegate was clearly wrong in reaching this conclusion because the notice, on its face, only invited the members of the Bigambul native title claim group to attend the meeting and, in relation to those people who were not Bigambul People, the notice directed them to contact Queensland South. Thus, Ms Phillips submitted that the Kamilaroi/Gomeroi People were not given a reasonable opportunity to participate in the decision-making process to authorise the ILUA. There are two reasons why this submission must be rejected. First, it is clear from the delegate’s reasons (see at [53(b)] above) that she took into account a range of matters, apart from the notice for the authorisation meeting, in reaching her conclusion that the Kamilaroi/Gomeroi People were adequately notified about that meeting. Secondly, and more significantly, even if the delegate made an error in her interpretation of the notice for the authorisation meeting, that was a wrong finding of fact and, as such, does not amount to a reviewable error of law: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (“Bond”) at 356 per Mason CJ.

57    Returning to the delegate’s answers to questions (a) and (c), because these involve the main issues in the proceedings, it is appropriate to set out the delegate’s reasoning on them in some more detail. First, it can be seen that in paras [106], [117] and [118] of her reasons, the delegate relied upon the reasoning in a number of specific paragraphs in the Kemp decision, ie at [40], [41], [54] and [59]. As she noted in her reasons (at [117]), she analysed many of those paragraphs in Kemp in an earlier part of her reasons (at reasons [90]–[103]).

58    Paragraphs [40]–[41] of Kemp go to the construction of s 251A. On that issue, the delegate reasoned as follows (at reasons [91]–[94]):

[91]    Justice Branson’s findings in Kemp must be seen in context. Her Honour dealt primarily with two issues. The findings at [40] deal with the first issue, which was an argument put by Mr Kemp’s counsel that:

s 251A(b) required the claimant group represented by Dr Davis-Hurst and [the separate group represented by] Mr Kemp, together to authorise the making of the agreement in accordance with a process of decision-making agreed to and adopted by them [at an authorisation meeting] (emphasis added) – Kemp at [39].

It should be noted that the delegate inserted the words in square brackets, viz “the separate group represented by”.

[92]    It seems to me that this is a similar argument to the contention put by QGC, that is, the ‘broader “other” group’ made up of all those who hold or may hold native title must authorise the ILUA. However, at [40] in Kemp, her Honour said:

I reject the above argument. … [I]t is plain that s 251A is concerned with how a single community or other group, the members of which together hold or may hold the common or group rights comprising the native title in relation to land or waters in the area covered by an indigenous land use agreement, may authorise the making of an indigenous land use agreement.

[93]    So the ‘other group’ her Honour is referring to in [40] is not ‘all the persons who hold or may hold native title’ in relation to the agreement area but a ‘single community or other group, the members of which together hold or may hold the common or group rights comprising the native title’ (emphasis added). I note that, for the reasons set out at [114] to [121] below, it is not asserted in this case that the members of the Kamilaroi/Gomeroi People and the Bigambul People together comprise such a single community or group.

[94]    At [41], her Honour went on to consider what was intended by s. 251A in circumstances where two or more communities or groups may hold native title to the agreement area. In such a case, Branson J found that:

Section 251A is not intended to provide, and does not provide, a means whereby a single authorising decision can be obtained which is binding on two or more groups where their respective claims to hold native title in an area are in conflict. This can be seen from the reference in paragraph (a) to 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. It is hard to imagine any such process of decision-making where the respective claims of two groups to hold the native title are in conflict; it would require traditional laws and customs in relation to jointly authorising things binding on the members of both groups (emphasis added).

59    This reasoning led the delegate to conclude [at reasons [95]) that:

Therefore, it seems to me that following Kemp at [40]–[41], QGC’s submission that even if there is or was more than one group or community asserting native title, there is no requirement that ‘each group or community must separately authorise the agreement’, is simply wrong in law.

60    In relation to para [54] of Kemp, the delegate began by setting out the competing constructions of s 24CG(3)(b)(i), as set out at [49] of Kemp. They were:

The two competing views as to the meaning of the words in s 24CG(3)(b)(i) are:

(a)    that the words should be construed literally so that, for example, where two competing groups each claims to hold the common or group rights which constitute the native title in the area, the words are capable of including the persons in both groups; or

(b)    that the words should not be construed literally but should be understood to refer to all persons who, according to the traditional laws and customs of the registered native title claimants, hold the common or group rights which constitute the native title in the area.

61    The delegate then noted (at reasons [97]) that:

Her Honour preferred the literal construction for, among others, the fact that s. 251A could ‘sensibly operate to provide a procedure whereby persons in different communities or groups respectively may separately authorise the making of an agreement – Kemp at [54].

62    In her final paragraph of this section of her reasons, the delegate summarised her conclusions (at the end of reasons [103]) as follows:

However, based on what is said in Kemp, in circumstances where more than one group makes that claim [to hold the common or group rights comprising the native title], and the claim is more than ‘merely colourable’, then each of the groups may take the opportunity to determine whether ss. 251A(a) or (b) applies and then make its decision as to whether or not to authorise the making of the area agreement ILUA in accordance with that process.

63    The expression “merely colourable” in this quote comes from [59] of Kemp. The delegate made this clear (at reasons [106] – in answering question (a): see [53(a)] above) where she specifically referred to that paragraph. Paragraph [59] of Kemp is as follows:

Were it the case that Mr Kemp’s claim to be a person who holds, or may hold, native title was merely colourable, it would have been open to the Registrar to conclude that his claim was without substance and, for that reason, his authority for the making of the agreement unnecessary. However, Mr Kemp had successfully applied to be joined as a party to proceedings in this Court to oppose the claim that Dr Davis-Hurst and those whom she represents hold native title in the area covered by the Agreement. In the circumstances, in my view, the appropriate forum for the resolution of the dispute between Dr Davis Hurst and those whom she represents on the one hand, and Mr Kemp on the other, as to the identity of the community or group which holds native title in the Saltwater land is the Federal Court.

Contentions

64    QGC’s case is succinctly summarised in its amended application where it sets out the grounds relied upon. They are:

1.    The First Respondent erred in law by misconstruing and misapplying ss 24CG(3)(b) and 251A of the NTA, in that the First Respondent:

(a)    construed those provisions as requiring that if there is or was more than one group or community asserting native title in relation to an area subject of an indigenous land use agreement, each group or community must separately authorise the agreement (Reasons for Decision at [95]);

(b)    asked and answered the wrong question, namely whether “the Kamilaroi/Gomeroi People’s claim as persons who hold or may hold native title in the agreement area is more than ‘merely colourable’” (Reasons for Decision at [106]), rather than whether they are “persons who hold or may hold the common or group rights comprising the native title” whose claim is in conflict with the claim made by the Second Respondent;

(c)    alternatively, inferred that the “Kamilaroi/Gomeroi People” are “persons who hold or may hold the common or group rights comprising the native title” where such inference was not reasonably open on the facts.

2.    The First Respondent erred in finding that “there is no evidence that demonstrates that any Kamilaroi/Gomeroi People participated in the process by the ‘Bigambul Area Group’ to authorise the making of the ILUA” (Reasons for Decision at [139]):

(a)    to the extent that this is a finding of fact, it is an error of law because it is inconsistent with the First Respondent’s findings at [133] and the evidence referred to at [127], [130], [137] – [138] of the Reasons for Decision;

(b)    to the extent that this is a finding of law, it is irrelevant, on account of the fact that those Kamilaroi and or Gomeroi people who attended the authorisation meeting but left the meeting did so of their own accord.

3.    The making of the Decision was an improper exercise of the power conferred by s 24CJ and s 24CL of the NTA, in that the First Respondent took irrelevant considerations into account in the exercise of that power, namely, whether the “Bigambul People and the Kamilaroi/Gomeroi People comprise a single native title group”. (Reasons for Decision at [104(c)], [112]-[116] and [121])

65    As I have already observed above (at [55]), I consider the answer to ground 2 depends upon the construction issue which is raised by grounds 1 and 3. If it stood as a ground independent of the construction issue – which clearly does involve a question of law – it would involve a question of fact that is not reviewable for the reasons stated at [56] above. In other words, I consider it involves the kind of contradictory or illogical findings of fact (I make no findings whether they are) that do not amount to errors of law: see Bond at 356.

66    The crux of QGC’s complaint appears in [64(1)(b) and (3)] above. It is that the delegate applied the “not merely colourable” test adopted by Branson J in Kemp to the claims of the Kamilaroi/Gomeroi People and thereby treated them as a conflicting claim group that was required to separately authorise the QGC–Bigambul agreement. QGC submitted that Kemp is either distinguishable on the facts or is wrong and should not be followed. It submitted it is distinguishable on the facts because, in Kemp, Mr Kemp himself had been joined as a respondent party to the native title determination proceedings being pursued by the Saltwater People and/or because it was an accepted fact that Mr Kemp did not participate in the authorisation meeting at all whereas, in this case, some of the Kamilaroi/Gomeroi People did participate and those that did not, left the authorisation meeting of their own accord.

67    QGC submitted that s 24CG(3)(b) contemplated an inclusive process in the identification of those people who hold or may hold native title in the land concerned. Thus, while QGC did not dispute that individual members of the Kamilaroi/Gomeroi People may hold native title in the land concerned, unless they acted as a group to file a native title determination application and achieved its registration, their involvement in the authorisation process under s 251A was no different to that of all other members of the group of individuals who hold or may hold native title in the land concerned. It instanced the Kambuwal People who had representatives at the authorisation meeting, but who did not seek to be treated as a separate group. QGC submitted that, based on the decision of Logan J in Fesl (at [74] and [80]), all the people in this group had to be offered was a reasonable opportunity to participate in the adoption of a decision-making process and to participate in the decision-making process itself. QGC submitted that the individual members of the Kamilaroi/Gomeroi People who were present at the authorisation meeting were offered this reasonable opportunity and if some, or even a vast majority of them, elected to leave the meeting of their own accord, that was immaterial to the validity of the authorisation process.

68    In essence, QGC argued that a group of people like the Kamilaroi/Gomeroi People who oppose the registration of the ILUA must file a native title determination application before the end of the notice period set out in s 24CH of the Act and achieve its registration, if they wished to be included in the authorisation process as a separate group. It submitted this is the process contemplated by s 24CL(2)(b) of the Act. On this aspect, QGC submitted that the “not merely colourable” test adopted by Branson J in Kemp is not reflected in the words of s 24CG(3)(b), or elsewhere in the Act, and the application of that test raises a number of problematic questions such as: when is that test to be applied – at the time of the authorisation meeting or at some subsequent time?; who is to form the view that the claim is not merely colourable – the project proponent, the registered claimants (if any), the Registrar or the Court?; what criteria are to be applied in forming that view?; and what evidence or other material will be necessary?

69    QGC submitted that the “not merely colourable” test introduces doubt and uncertainty into the ILUA processes under the Act and does not promote the purpose and objects of those provisions. It submitted that the conclusion reached by Branson J at [40]–[41] of Kemp – that “s 251A is not intended to provide, and does not provide, a means whereby a single authorising decision can be obtained which is binding on two or more groups where their respective claims to hold native title in an area are in conflict” – appears to be based on the assumption that there could not be a process of decision-making under s 251A(a) under the traditional laws and customs of two or more groups who are in conflict. This, QGC submitted, failed to appreciate that two groups who are part of a broader regional society or cultural block, may share a common system of traditional laws and customs and yet be in conflict. Moreover, QGC submitted that the reasoning of Branson J in Kemp about the construction of s 251A fails to take account of the fact that s 251A(a) and 251A(b) offer clear alternatives. Thus, where there is no mandatory traditional decision-making process – because the two conflicting groups have different mandatory decision-making processes – s 251A(b) allows them to agree on, and adopt, another process of decision-making. Finally, QGC submitted that the reasoning in Kemp would mean that, where there is no registered claim in relation to an area and there are different individuals or sub-groups asserting conflicting claims to hold native title in the area, there would have to be separate meetings for each such sub-group, assuming their claims were “not merely colourable”. This outcome, so QGC submitted, would be absurd and is plainly inconsistent with the language of ss 24CG(3)(b)(ii) and 251A(b) of the Act.

70    The Bigambul People submitted that the delegate had misconstrued ss 24CG(3)(b) and 251A in concluding that, if there is more than one group or community asserting native title, each group must separately authorise the agreement. It submitted that, insofar as the delegate relied on Kemp to reach this conclusion, that case was wrongly decided. It submitted that, in a case where two groups with conflicting claims do not have a mandatory traditional decision-making process, there is nothing in the text of s 251A that suggests that there cannot be a single meeting of the two groups at which they agree on a single authorising decision to authorise the agreement. The second respondent made the same criticisms of the reasoning of Branson J in Kemp, about the construction of s 251A, as did QGC. The second respondent also supported the submission of QGC that, consistent with Fesl, the Act only required that all those persons who hold or may hold native title in the claim area have to be offered a reasonable opportunity to participate in the adoption of a particular decision-making process and in the making of the authorising decision in accordance with that process.

71    The Bigambul People submitted that the expression “may hold … native title” in ss 24CG(3)(b)(i) and 251A only referred to those people who are registered native title claimants, whether at the time of the authorisation of the ILUA, or at the end of the notice period specified in ss 24CH and 24CL. They submitted that s 24CL(2) of the Act provides an opportunity for any conflicting groups to demonstrate that they “may hold … native title” in the most concrete and objective way, ie by making a native title determination application and gaining its registration in accordance with s 190A of the Act. If they had done this, they submitted the Kamilaroi/Gomeroi registered native title claimant would then have to be a party to the Bigambul agreement in accordance with s 24CL(2). They could therefore veto the agreement by not consenting to become a party to it. However, as a consequence of their failure to file a native title determination application and gain its registration, the Bigambul People submitted that the Kamilaroi/Gomeroi People cannot be regarded as persons who “may hold … native title” for the purpose of ss 24CG(3)(b) and 251A of the Act and therefore their authorisation of the QGC–Bigambul agreement was not required.

72    It is convenient to dispose of one of these submissions immediately. For the reasons I gave in Bygrave (at [104]–[109]), I do not consider there is any requirement for a party to consent to being a party to an ILUA agreement under s 24CD. Thus, a necessary party under s 24CD cannot veto an ILUA agreement by refusing to give their consent to being a party to the agreement. Since the requirements of s 24CL about the necessary parties to an ILUA involve identical considerations, I consider that reasoning applies with equal force to it. That being so, I reject the submission that a party can veto an ILUA agreement by refusing to give their consent to being a party under s 24CL(2) of the Act.

73    The Kamilaroi/Gomeroi People submitted that the delegate had not made any errors in her decision and, in particular, in applying the decision in Kemp. They submitted that Kemp was correctly decided and the delegate quite properly applied it.

Consideration

The issues that fall to be determined

74    It can be seen from these contentions that QGC accepts that the Kamilaroi/Gomeroi People may hold native title in a part of the Bigambul area and that the Kamilaroi/Gomeroi People were properly identified as such under the first step in the two step process in s 24CG(3)(b). QGC also accepts that the Kamilaroi/Gomeroi People fell within the words “all the persons so identified” in the opening words of s 24CG(3)(b)(ii). Thus, so far as QGC is concerned, it appears that the construction issues outlined at [51] above can be narrowed to the meaning of the word “authorised”, and whether the Kamilaroi/Gomeroi People were able to insist that their authorisation of the QGC–Bigambul agreement as a conflicting group was a necessary requirement of s 251A. More specifically, it appears that QGC’s position is that the main issue in dispute can be narrowed to whether the delegate properly construed the words of s 251A when she concluded (at reasons [103]) that:

based on what is said in Kemp, in circumstances where more than one group makes that claim [to hold the common or group rights comprising native title in the land or waters concerned], and the claim is more than ‘merely colourable’, then each of the groups may take the opportunity to determine whether ss. 251A(a) or (b) applies and then make its decision as to whether or not to authorise the making of the area agreement ILUA in accordance with that process.

75    The Bigambul People take a somewhat different approach. Essentially, they say that the barrier to the Kamilaroi/Gomeroi People being involved in the authorisation process for the QGC–Bigambul agreement is contained in s 24CG(3)(b)(i). They say that since the Kamilaroi/Gomeroi People did not file and gain registration of a native title determination application within the notice period under s 24CH, they were not persons who “may hold native title” in the terms of s 24CG(3)(b)(i) and therefore they were not entitled to be involved in the authorisation process under s 251A. This approach requires a consideration of the meaning of the two expressions in s 24CG(3)(b) identified in [51] above.

The Kemp decision is distinguishable – the ‘not merely colourable’ test does not apply

76    Since the decision of Branson J in Kemp was so critical to the delegate’s conclusions on these issues, it is appropriate to begin my consideration by going to that decision. In doing so I should indicate at the outset that I agree with the submissions of QGC and the Bigambul People that the decision in Kemp is distinguishable on its facts and the delegate fell into error in concluding, based on Kemp, that the “not merely colourable” test could be applied in the factual circumstances of this case to assess the claims of the Kamilaroi/Gomeroi People and thereby decide that they were entitled to participate in the authorisation process under s 251A as a separate group. To demonstrate why this is so, it is necessary to describe in more detail the quite unusual and unique factual circumstances that applied in Kemp.

77    In 1998, Dr Davis-Hurst, on behalf of the Katanga People, filed two native title determination applications in respect of an area of land known as Saltwater. In 2003, after a contested hearing (Davis-Hurst on behalf of the Traditional Owners of Saltwater v New South Wales Minister for Land and Water Conservation (2003) 198 ALR 315; [2003] FCA 541 (“Davis-Hurst”)), Branson J ordered that Mr Kemp be joined as a party to those proceedings “in reliance on unchallenged evidence which tended to establish that Mr Kemp is a descendant of the Pirripaayi People who are traditionally associated by Aboriginal law and custom with an area which includes the Saltwater land”: Kemp at [2]. During that joinder application, Mr Kemp outlined his interests in the Davis-Hurst proceedings in some detail. Branson J recorded those concerns in Davis-Hurst at [14]–[15] as follows:

14.    It is apparently because of resource implications that Mr Kemp does not wish to advance a claim for a determination of native title in respect of Saltwater, either on his own behalf, or on behalf of himself and other living descendents of the Pirripaayi people. However, he is concerned that a determination in favour of the applicant would give formal recognition to a version of history that does not recognise the Pirripaayi people as the traditional owners of Saltwater. Mr Kemp’s concern is not alleviated by the possibility that there may be extensive, or even complete, overlaps between the present claimant group and the living descendants of the Pirripaayi people.

15.    Mr Kemp is further concerned, as I understand him, that it is possible, or even likely, that the applicant is the wrong person to represent the claimant group, however described, in these proceedings. Mr Kemp believes, on the basis of information which he has obtained from Mr Marr, that under traditional aboriginal law and custom a woman cannot claim the areas of land the subject of the applications. He also believes, apparently on the same basis, that the applicant may not accept, or perhaps be aware of, the correct dreaming story and the customary laws of the area in question. As is mentioned above, his belief is that the applicant accepts a version of the history of the claim areas that fails to give proper recognition to the connection of Pirripaayi people to Saltwater.

78    Mr Kemp’s explanation that he did not file a native title determination application himself “because of resource implications” (see Davis-Hurst at [14] above) appears to have been accepted by Branson J: see Kemp at [60].

79    Approximately two years later, in 2005, an agreement was entered into between, among others, the State of New South Wales and Dr Davis-Hurst on behalf of the Katanga, or Saltwater People. Following that, the Minister for Lands (NSW) applied to have the agreement registered as an ILUA. Mr Kemp was not a party to the agreement and, it was not in dispute, was not a member of the native title claim group represented by Dr Davis-Hurst. The effect of the agreement was to recognise the Saltwater People as holding the native title rights and interests in the Saltwater land and, it was intended by the agreement that, once it became registered as an ILUA, Dr Davis-Hurst would discontinue her native title determination applications: Kemp at [7]–[8]. Thus, the end result of the registration of the agreement as an ILUA would have been that those whom Dr Davis-Hurst represented would be recognised as the holders of the native title rights and interests in the Saltwater land, Mr Kemp’s claims would have been completely ignored and the native title determination proceedings would have been discontinued so that the dispute about who the true native title holders were, would never come to be determined by the Court.

80    The Registrar decided to register the agreement as an ILUA. Mr Kemp commenced proceedings to challenge that decision. Before Branson J, it was accepted that the Registrar had erred as a matter of fact in concluding that Mr Kemp was bound by the majority decision to authorise the agreement adopted by the claimant group represented by Dr Davis-Hurst: see [36]–[37] and [43] of Kemp. However, Dr Davis-Hurst argued that, despite that accepted factual error, the Registrar’s decision should not be set aside because Mr Kemp’s authorisation for the agreement was not required under the Act in any event. As has already been recorded above, Branson J decided to set aside the Registrar’s decision.

81    There is a number of significant distinctions between the factual circumstances outlined above and those of the present case, some of which were identified by Mr Hiley QC for QGC in his submissions. First, despite stating on 7 December 2009 that they intended to apply to become a respondent party to the Bigambul People’s claim, no such application has yet been made by the Kamilaroi/Gomeroi People. As a consequence, unlike in Kemp (see at [77] above), the Kamilaroi/Gomeroi People have not been required to define exactly what their native title interests are such that they may be joined as a party to the Bigambul People’s claim. It necessarily follows that there has been no opportunity for a contested hearing before this Court on that issue.

82    Secondly, in her reasons (at [107]), the delegate recorded that the Kamilaroi/Gomeroi People “may well decide to make a claimant application in the future”. No such claim has yet been made and the delegate’s reasons do not record the Kamilaroi/Gomeroi People offering any explanation as to why one has not been made. This is quite different to the circumstances in Kemp where Mr Kemp was not willing to file a claimant application and Branson J appeared to accept the explanation he had offered that “resource implications” prevented him from pursuing his own native title determination application.

83    While I am dealing with this aspect, I reject the explanations offered by Ms Phillips during submissions before me that the Kamilaroi/Gomeroi People were unable to file their own native title determination application because NTSCORP was unable to obtain the consent of Queensland South under s 203BD of the Act. That consent was required under s 203BB(3) because the Bigambul area was outside of NTSCORP’s area of responsibility as a representative Aboriginal and Torres Strait Islander body under the Act. Despite Ms Phillips’ attempts to show me otherwise, I consider that it is clear there is no evidence before me that NTSCORP had actually sought that consent from Queensland South, or that Queensland South refused to give it. More importantly, I consider it is clear from the delegate’s reasons that there was no such evidence before her. In any event, even if that consent was sought and/or was refused, neither situation would have prevented the Kamilaroi/Gomeroi People filing a native title determination application themselves without relying upon NTSCORP performing its facilitation and assistance functions under s 203BB.

84    Before moving to the final distinguishing factor, it is worth identifying some of the consequences of the failure of the Kamilaroi/Gomeroi People to apply to become a respondent to the Bigambul People’s claim, or to file a native title determination application of their own. The first and most fundamental is that, instead of having a determination of the Court following a contested hearing on those issues, the delegate, not the Court, had to make that determination. Secondly, at no stage have the Kamilaroi/Gomeroi People been required to define their claimed native title interests as a group, whether in an application to be joined as a respondent, or a native title determination application complying with the requirements of Div 1 of Pt 3 of the Act (s 60A and following). Of course, if it had been the latter, that application would have been submitted to the discipline of the registration process set out in Pt 7 of the Act, particularly s 190B (relating to the merits of the claim) and s 190C (relating to the procedural and other matters required for a registered claim). Instead, the delegate had to rely upon an affidavit of an anthropologist, Mr James Rose, which was submitted by NTSCORP on behalf of the Kamilaroi/Gomeroi People. Mr Rose was not cross-examined on that affidavit. This is to be contrasted with the situation in Kemp where Mr Kemp had, at least, outlined his particular interests in the land in question to the Court in his contested application to be joined as a respondent party to the Davis-Hurst proceedings: see at [77] above. So, unlike the Court in Kemp, the delegate had to rely upon an untested affidavit to assess the claims of the Kamilaroi/Gomeroi People. Thirdly, so far as I can see, the Kamilaroi/Gomeroi People were not required to identify the precise area of land and waters in which they claim to have native title rights and interests. While that area was described to me in oral submissions by Ms Phillips, I cannot find any similar clear description of it in the delegate’s reasons. Of course, if the Kamilaroi/Gomeroi People had filed a native title determination application, under s 62(2)(a) and (b) of the Act, they would have been required to identify the boundaries of the area covered by the application and attach a map showing those boundaries.

85    Turning then to the final point of distinction to the factual circumstances in Kemp. That is that the QGC–Bigambul agreement does not have the overwhelmingly destructive effect on the rights of the Kamilaroi/Gomeroi People that the agreement between Dr Davis-Hurst and the State of New South Wales would have had in Kemp if it had been registered. This loss of native title rights was the factor that appeared to weigh heavily on Branson J and, indeed, tip the balance, in Kemp: see Kemp at [57] and [58]. The QGC–Bigambul agreement does not, on its face, recognise the rights of the Bigambul People and deny those of the Kamilaroi/Gomeroi People, or anyone else for that matter. Furthermore, there does not appear to be any requirement in the QGC–Bigambul agreement that the Bigambul People are required to discontinue their native title determination application. At the present moment, those proceedings remain active in my docket and are being progressed towards either a contested hearing, or a consent determination. Hopefully, one of these will take place within the next 18 months to two years.

86    For all these reasons, I consider the factual circumstances of Kemp are so significantly different to the factual circumstances of this case that the decision in Kemp is clearly distinguishable. This conclusion obviously rejects the application of the “not merely colourable” test in the circumstances of this case, but it does not determine whether, if the proper test had been applied in this case, the Kamilaroi/Gomeroi People would have satisfied that test such that they could validly claim the right to participate in the authorisation process for the QGC–Bigambul agreement as a conflicting group. The answer to this question requires further attention to the expressions in ss 24CG(3)(b) and 251A of the Act set out in [51] above.

Two different groups of persons described in s 24CG(3)(b) and s 251A(a) and (b)

87    Before turning to consider the meaning of those expressions, I should make two further observations about the decision in Kemp. First, I do not consider I have to decide whether a person in the unique and unusual factual circumstances of Mr Kemp, is entitled to avail himself or herself of the “not merely colourable” test to claim a right to participate in the authorisation process for an area agreement ILUA. Thus, I do not consider I need to decide whether or not I agree with Branson J in adopting and applying that test at [59] in Kemp. Secondly, despite this, I consider some of the conclusions of Branson J in earlier parts of Kemp, that are peripheral to that ultimate conclusion, do provide some assistance in construing these expressions.

88    The authorities establish that the “surest guide” to the meaning of the expressions set out in [51] above is to be gained by considering: “[t]he language which has actually been employed in the text of legislation ….”: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] per Hayne, Heydon, Crennan and Kiefel JJ. That may require consideration of: “the context, the general purpose and policy of [the] provision and its consistency and fairness” and that consideration would normally begin by: “examining the context of the provision that is being construed”: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] per McHugh, Gummow, Kirby and Hayne JJ.

89    Since the Bigambul People submit that the correct test arises from the proper construction of the expression in 24CG(3)(b)(i) and that expression comes first in the sequence of the relevant expressions as they appear in the Act, it is convenient to commence with a consideration of the Bigambul People’s approach. That leads me back to the decision in Kemp and the relevant contextual matters Branson J identified there.

90    To begin with, I agree with the delegate (at reasons [58] see [93] above), that where Branson J referred to the “other” group in Kemp at [40], her Honour was not referring to the group of persons “who hold or may hold native title in relation to” the agreement area. Instead, her Honour was referring to the group of persons “who hold or may hold the common or group rights comprising the native title”. So much is clear from the words her Honour used to describe these two groups – they correspond almost exactly with the terminology in ss 24CG(3)(b)(i) and 251A(a) and (b). Thus, in my respectful view, both Branson J and the delegate drew a valid distinction between the way these two groups of persons are described in ss 24CG(3)(b) and 251A(a) and (b) of the Act.

91    The former expression is used in s 24CG(3)(b)(i) to define the group of persons who must be identified for the purposes of authorising an ILUA under the Act. It necessarily follows that this group of persons so identified under s 24CG(3)(b)(i) is the same group of persons as that referred to in the opening words of s 24CG(3)(b)(ii): “All of the persons so identified”. Furthermore, on the assumption the words “or who may hold” are inserted after the words “persons holding” in the opening words of s 251A (see Bygrave at [42], where I respectfully agree with Logan J in Fesl at [60] on this point), the expression in those opening words: “persons holding [or who may hold] native title in relation to” is also referring to the same group of persons, viz the persons identified under s 24CG(3)(b)(i). Finally, this group of persons (the persons identified under s 24CG(3)(b)(i)) are the same persons who are referred to in the words “the persons”, where they are used at the end of s 251A and at the beginning of s 251A(b): “ the persons authorise the making of the agreement”.

92    On the other hand, the latter expression is used once in each of s 251A(a) and 251A(b) to define the community or group of persons that must authorise the making of the ILUA, ie the group of persons who “hold or may hold the common or group rights comprising the native title”. Thus, there are clearly two different groups of persons whose membership is defined by different criteria: the group identified under s 24CG(3)(b)(i) who “hold or may hold native title” in the area concerned and the authorising group under s 251A(a) and (b) who “hold or may hold the common or group rights comprising the native title”. And, critically, the latter group does the authorising of the agreement for the former group.

The expression “hold or may hold native title” has an expansive and inclusive meaning

93    Having identified the two groups involved in the authorising process, it is next necessary to determine the membership of each group. That requires a determination of the proper construction of the two expressions: “hold or may hold native title” in the area concerned; and “hold or may hold the common or group rights comprising the native title”. It will be recalled that the Bigambul People submitted that, since the Kamilaroi/Gomeroi People did not file, and gain registration of, a native title determination application within the notice period under s 24CH, they were not persons who “may hold native title” in the terms of s 24CG(3)(b)(i). It follows, so they submitted, that they could not be identified as such under s 24CG(3)(b)(i) and since they do not fall within this first group of persons, they were not entitled to be involved in the authorisation process under s 251A. In essence this approach requires s 24CG(3)(b)(i) to be read down so that the words “may hold” are confined to those groups who have filed a native title determination application under the Act.

94    In Kemp, Branson J concluded, with some reservation, that this expression in s 24CG(3)(b)(i) should be given its literal meaning. Her Honour said (Kemp at [58]):

I confess to having found this issue difficult to resolve. I accept that the construction for which the respondents contend would result in a logically coherent scheme for the registration of area agreements. However, a literal construction of s 24CG(3)(b)(i) does not, in my view, result in an absurd or otherwise plainly unlikely outcome. In the absence of a compelling case to do so, I am reluctant to depart from the literal meaning of the words which the legislative [sic] has chosen because a departure from that meaning could, in this and other cases, result in the loss of rights which an individual might otherwise enjoy.

95    The difficulty I have with this conclusion is that I am unable to find a clear statement in Kemp as to what her Honour considered that literal meaning to be. The closest her Honour came was in [49(a)] (see at [60] above) where she quoted, as an example, a situation which the words of s 24CG(3)(b)(i) were capable of including. The example was: “where two conflicting groups, each claims to hold the common or group rights which constitute the native title in the area”. Since her Honour referred to this as one of two competing views, I assume that she was there recording the submissions of counsel. The alternative view is also set out above (at [60]). In essence that view was that the words referred to the persons who comprised the existing native title claim group. It is implicit in her Honour’s adoption of the literal meaning that she rejected this alternative view. Of course, as Mr Rangiah pointed out in his oral submissions, a further alternative is that the words referred to the persons who comprised the existing native title claim group and any other native title claim group who came forward in response to the notice under s 24CH(2)(d)(ii).

96    But even if one compares the competing views described by Branson J, it is not possible, in my view, to discern what the literal meaning of the expression is said to be. Nonetheless, it is clear from comments made elsewhere in Kemp that her Honour considered the expression did not require actual proof of native title (see at [51] of Kemp) and that it had an expansive or inclusive meaning (see at [55] of Kemp). Furthermore, her Honour appears to have accepted that the expression could include any person claiming to hold native title in opposition to the claim of any registered native title claimant: see Kemp at [56]. I respectfully agree with all these observations.

97    To these contextual considerations, I would add these observations about the language used in s 24CG(3)(b)(i). First, it will be noted that the definite article “the” does not precede the words “native title”. This must be intended to accommodate the fact that, with an area agreement ILUA, there may be a range of persons holding or claiming to hold native title in different parts of the area of land and waters covered by the agreement. These may include registered native title bodies corporate, registered native title claimants and persons who claim to hold native title without having a registered claim. Thus there may be more than one set of native title rights and interests involved. The only limiting factor is that the native title concerned must relate to a part of the “land or waters in the area covered by the agreement”. Secondly, the subject of the words “hold or may hold” at the beginning of the expression is plainly contained in the concluding words “native title in relation to the land or waters in the area covered by the agreement”. This, in turn, links with the relatively broad definition of native title contained in s 223(1) of the Act:

(1)    The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

98    It will be noted that this definition encompasses communal, group, or individual rights and interests. So, not only is the expression directed to all of the different sets of native title rights and interests that may be held in the area covered by the agreement, but it is also directed to all of the ways in which those rights and interests may be held, whether communally, or as a group, or by an individual.

99    Thirdly, and perhaps most obviously, the words “all persons” must be referring to persons of Aboriginal or Torres Strait Islander descent because it is only those persons who can hold native title rights and interests under the Act. Fourthly, consistent with the conclusion I reached in Bygrave (at [79]), I consider the word “all”, in this context, is to be given its ordinary meaning which is: “the whole of … any; any whatever … the whole quantity or amount”.

100    Finally, the words “hold or may hold” plainly cover a wide range of situations where a person could be said to hold native title in the area of land and waters concerned. They clearly extend to a formal native title determination under the Act and to a native title claim group with a registered application for the determination of native title under the Act. In my view they also extend to any other basis upon which it is reasonable to conclude that a person or group of persons may hold native title in the area concerned. So, apart from a registered claim, they would extend to an unregistered claim, or even an informal claim made, for example, by a person attending an authorisation meeting in response to a notice of that meeting and making a claim at that meeting to hold native title in the area. Moreover, apart from a formal or informal claim, they would also extend to any person or group of persons with a characteristic from which it is reasonable to conclude that a person or a group holds native title in any part of the area covered by the agreement. Such a characteristic may include membership of a particular Aboriginal family that was widely accepted by the local community to hold native title in the area, or being a long term resident of a particular area.

101    Taking all these observations into account, I consider the expression “all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement” in s 24CG(3)(b)(i) is to be construed expansively and inclusively to mean every individual, group of persons, or community, of Aboriginal or Torres Strait Islander descent, who holds native title, or by any means makes a claim to hold native title, or otherwise has a characteristic from which it is reasonable to conclude that person, group, or community holds native title, in any part of the area covered by the agreement.

102    This construction of the expression is consistent with the inclusive approach QGC submitted is required when identifying the persons referred to in s 24CG(3)(b)(i) (see at [67] above). I therefore agree with that submission. I also consider QGC is correct in accepting that those persons also constitute “all the persons so identified” in the opening words of s 24CG(3)(b)(ii). All of this means that I consider QGC is correct when it submits that, in this case, the membership of the first group referred to above was inclusive in the sense that it extended to all the members of the Bigambul native title claim group, and all the members of the Kambuwal People and the Kamilaroi/Gomeroi People, including those who attended the authorisation meeting on 12 December 2009. All these people were therefore correctly identified under s 24CG(3)(b)(i), as persons who hold or may hold native title in relation to the lands or waters in the Bigambul area.

103    Conversely, I reject the Bigambul People’s submission that this expression in s 24CG(3)(b)(i) should be construed to limit those who “hold or may hold native title” in the area covered by the QGC–Bigambul agreement to those groups of persons who have become registered native title claimants by the end of the notification period under s 24CH, or the extended period under s 24CJ. Instead, as I have alluded to above, and as I will explain later in these reasons, I consider the barrier to the Kamilaroi/Gomeroi People being involved in the authorisation process for the QGC–Bigambul agreement is contained in the expression used in each of s 251A(a) and (b): “hold or may hold the common or group rights comprising the native title”.

The expression “hold or may hold the common or group rights comprising the native title” has a confined and exclusive meaning

104    That brings me to the construction of that expression. As I have already concluded above, this is the group of persons who authorises an area agreement ILUA for the group of persons identified under s 24CG(3)(b)(i). As with the expression “who hold or may hold native title”, I will begin with some contextual considerations.

105    When one considers the language of that expression in the context of the Act as a whole, one of the most significant contextual considerations, in my view, arises from the use of the phrase: “the common or group rights comprising the native title”. This is so because that phrase occurs in only three places in the Act and each occurrence is connected to the others in a very specific way. They are s 251A itself, and ss 61 and 225(a). Of the latter, the first prescribes who may apply for a determination of native title under the Act and how that application is to be made. The second provides that such a determination includes a determination of: “who the persons, or each group of persons, holding the common or group rights comprising the native title are”. It is therefore appropriate to examine more closely the role of those two provisions in the context of the Act as a whole.

106    Fortuitously, the Full Court of this Court has already done that in Commonwealth of Australia v Clifton (2007) 164 FCR 355; [2007] FCAFC 190 (“Clifton”). In that case, a Mr McKenzie was a respondent party to a claim by a native title claim group with which he, and his group, the Kuyani People, were in conflict. The central question the Full Court had to determine was whether Mr McKenzie could, in that capacity, obtain a determination of native title in favour of the Kuyani People. The Full Court ruled he could not. To determine that question the Full Court was required to examine all the relevant provisions of the Act, beginning with s 13(1), which gives the Federal Court of Australia its jurisdiction to make a determination of native title: see Clifton at [15]. Relevantly for present purposes, the Full Court made a number of pertinent observations about the operation of s 61.

107    First, it described the purposes of that section as follows (at [42]):

Section 61(1) has two purposes. The first is to identify the applications that may be made under Division 1 of Part 3 of the Act. The second is to identify the person or persons who may invoke the jurisdiction of the Court by making one of the three kinds of application with which the section is concerned; that is, to identify those who have standing to make those applications.

108    Next, it described the roles of the other provisions of Div 1 of Pt 3 of the Act, as follows (at [44]):

As mentioned above, the rules that govern the making of a native title determination are found in Division 1 of Part 3 of the Act. That Division prescribes who may make such an application (s 61), proscribes the making of an application in relation to an area for which there is an approved determination of native title (s 61A) and specifies the form of the application and the information that must be included in the application (s 61(3), (4) and (5)) or in an accompanying affidavit (s 62). It requires any application under s 61, and any accompanying affidavit, to be given to the Native Title Registrar (s 63) who must give notice of the application to persons likely to be interested in the application (s 66). The Division proscribes the amendment of an application where the amendment would increase the area claimed beyond that of which the Native Title Registrar will have given notice (s 64).

109    Then, after describing how the Federal Court has to exercise its jurisdiction under the Act and the provisions of s 67 which require conflicting or overlapping claims to be dealt with in the one proceeding, the Full Court made the following crucial observations about how s 61 and s 225(a) interacted (at [47]):

The Act provides no procedures other than those described above whereby a person or group of persons may obtain a determination of whether or not native title exists in relation to a particular area and, if it does exist, a determination of who the persons, or each group of persons, holding the common or group rights comprising the native title are (s 225(a)).

110    Thereafter, the Full Court went on to point out that most of these provisions were amended by the 1998 amendments to the Act. In describing the effect of those amendments, and the correlated amendments to Pt 7 of the Act which prescribes the registration process for native title claims, the Full Court quoted from various parts of the Attorney-General’s second reading speech and the Explanatory Memorandum for the Native Title Amendment Bill 1997 (No 2) (Cth) which achieved the 1998 amendments.

111    First, the Full Court observed that one of the rationales for those amendments was: “not to limit the people in favour of whom a native title determination could be made but rather to limit the number of people and groups with whom non-indigenous parties were required to negotiate”: at [49].

112    Secondly, the Full Court noted what the Attorney-General considered was the object of those amendments, as follows (at [50]):

The Attorney-General stated in the second reading speech that one of the outcomes the Bill was designed to achieve was “to put in place a registration test for claims which ensures that those negotiating with developers have a credible claim”. The Attorney-General also stressed that “an effective registration test as the gateway to the statutory benefits which the act [sic] provides is essential” and that it was “essential to the continuing acceptance of the right to negotiate process that only those with a credible native title claim should participate”.

113    In its conclusion, the Full Court said (at [57]):

In our view, since the coming into force of the Native Title Amendment Act, those procedures require, as a minimum, that before any determination may be made that native title is held by a particular group, an application as mentioned in s 13(1) must be made under Part 3 of the Act by a person or persons authorised by that group in the manner required by s 61(1).

114    And most importantly for these proceedings, it said (at [58]):

We therefore conclude that where more than one native title claim group seeks a determination that it holds common or group rights and interests constituting the whole or part of the native title to an area, each group must authorise a person or persons to make an application as mentioned in s 13(1) under Part 3 of the Act. Where more than one application is made, to the extent that the applications cover the same area, they will be dealt with in the one proceeding (s 67). Consequently a determination of native title in respect of any one or more of the claim groups will be able to be made in accordance with the procedures of the Act (s 213(1)).

(Emphasis added)

115    In my view, these observations of the Full Court in Clifton make it clear that a group of Aboriginal people can only obtain a determination of native title under the Act by properly authorising a person or persons to make an application for such a determination and then by having that authorised applicant file the application on its behalf. If that is the only way a group of Aboriginal people can obtain a determination that they hold the common or group rights comprising the native title, it would seem extremely unlikely, in my view, that the Legislature intended that a group of Aboriginal people, like the Kamilaroi/Gomeroi People, could claim they may hold those common or group rights, such that they are able to insist on being involved in the authorisation process under s 251A, without following the process prescribed by Div 1 of Pt 3 of the Act. This conclusion is supported by the views expressed by the Attorney-General in his second reading speech on the 1998 amendments to the Act, that a native title determination application, when duly registered, provides an essential “gateway to the statutory benefits which the act [sic] provides”. Of course, the ILUA process, of which s 251A is a critical component, is one of the main mechanisms in the Act by which those statutory benefits are provided.

116    There is also at least one other contextual consideration that supports this conclusion, ie the provisions of ss 24CH(2)(d)(ii) and 24CL(2), which I have set out above (see at [37] and [40] respectively). It will be recalled that, as a part of the registration process for an area agreement ILUA under Div 3 Subdiv C of Pt 2 of the Act, where the application is not certified by the relevant representative Aboriginal/Torres Strait Islander body, the notice of the agreement has to, among other things, contain a statement calling on “any person claiming to hold native title in relation to land or waters in the area covered by the agreement” to make a native title determination application if they wished. Then, s 24CL(2) provides, as the first condition for registration of the agreement as an ILUA, that any registered native title claimant that results from the filing of such a native title determination application has to be made a party to the ILUA. In my view, these provisions would have little purpose if a group like the Kamilaroi/Gomeroi People could essentially ignore them and then assert to the delegate in submissions made under s 24CL(4), as they did (see at [47] above), that they comprise a group that may hold the common or group rights in relation to a part of the area concerned and therefore insist on being involved in the authorisation process under s 251A. This is further supported by the fact that there is no right of objection under s 24C(2)(d)(ii) on this, or any other ground.

117    In this respect, it is also worth repeating the observations of the Full Court in Murray (at [23]) about the purpose of ss 24CG and 24CL. The Full Court said the purpose of these provisions was: “to ensure that all persons who hold, or may hold, native title in the area have been identified and notified of the agreement and have either authorised the making of the agreement or successfully taken steps to formalise their claim to hold native title in relation to the land or waters in the area covered by the agreement”. In the concluding words of these observations, I consider the Full Court was equating those who may hold native title in the area concerned with a group of persons that has duly made a registered claim to hold those native title rights.

118    Furthermore, there are two other matters that support this approach to the construction of the expression. First, it is fair and just to an existing registered native title claimant by requiring that any other community or group seeking to advance conflicting claims to its claims, has to submit those claims to the discipline of the processes prescribed in Div 1 of Pt 3 and Pt 7 of the Act. Secondly, it creates certainty for the proponents of development projects on land and waters that are the subject of native title claims. It is to be recalled that certainty for the broader community is a part of the objects or purposes of the ILUA provisions of the Act: see at [22] above. On this approach that certainty is created at a number of levels. First, the process of filing a native title determination application requires the claimant group to appoint an authorised applicant with whom those proponents can interact and negotiate. Without such an authorised applicant, those proponents would have no certainty that the persons who claimed to speak for a group claiming to hold native title in an area of land, were properly authorised, by that group, to speak for them. Furthermore, as noted in the Explanatory Memorandum for the 1998 amendments, the processes set out in Div 1 of Pt 3 and Pt 7 of the Act, ensure that those proponents are dealing with people who have made credible claims to hold native title in the area of land concerned. And finally, the same processes require the claimant group to identify the nature of the native title rights and interests they claim, the factual basis for those claims and to identify the precise area of land in which those native title rights and interests are held. Certainty in all of this information will obviously be important for the proponent of any development project on any land or waters concerned.

119    Finally, there are a number of aspects of the language of the expression that also support this approach to its construction. First, it is plain from the phrase “common or group rights” that the expression is directed to those who hold or may hold group rights. This is to be contrasted with the correlated provisions of s 24CG(3)(b) (see [98] above), which extend to individual rights. Secondly, the words: “the common or group rights comprising the native title” are far more specific than the expansive and inclusive meaning of the correlated words in s 24CG(3)(b)(i): “native title in … the area” (see at [97]–[101] above). In the former, the use of the definite article “the” twice, is clearly significant. First, to refer to the specific group rights involved and, secondly, to refer to the specific set of native title rights to which those group rights relate.

120    Before leaving the language of these two expressions, I am conscious that the approach I have taken above puts a different construction on the words “may hold” in s 24CG(3)(b)(i), as compared to the same words where they appear in s 251A(a) and (b). On its face, this runs contrary to the principle that the same words should generally be given the same meaning consistently throughout a piece of legislation. However, in this instance, I consider the contextual considerations I have described above dictate this outcome. In other words, I consider this is a situation where “the presumption readily yields to the context”: see McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 and Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 15.

121    So when one takes into account the language of the expression in s 251A(a) and (b) and the other considerations mentioned above, including the statutory context of the expression, its general purpose and policy and the matters of consistency and fairness I have highlighted, I consider the expression in s 251A(a) and (b): “who may hold the common or group rights comprising the native title”, is to be construed in a confined and exclusive way, as referring to that group, or those groups of Aboriginal persons, that have demonstrated they may hold the group rights comprising the specific set of native title rights concerned, by filing a native title determination application under Pt 3 of the Act and having that application duly registered under Pt 7 of the Act.

122    The obvious effect of this conclusion in this case is that I consider the Kamilaroi/Gomeroi People were not entitled to insist upon being involved in the authorisation process for the QGC–Bigambul agreement as a conflicting group. Instead, the only group that was in a position where it could be said that they may hold the common or group rights comprising the native title in the Bigambul area were the Bigambul People. This is so because they were the only group that had filed a native title determination application and had it duly registered. Thus, it was the Bigambul People who had to authorise the QGC–Bigambul agreement for the group identified under s 24CG(3)(b). It had to do that by following one of the processes in s 251A(a) or 251A(b). Since there is no dispute that the Bigambul People are a single group, I agree with the submissions of QGC (see at [67] above) that what s 251A required was that all the persons in that group had to be offered a reasonable opportunity to participate in the adoption of a decision-making process and to participate in that decision-making process itself, as described by Logan J in Fesl.

123    Because of this conclusion, I do not need to consider whether, or how, the authorisation process in s 251A would operate where two or more conflicting groups have duly registered claims over the same area of land.

Conclusion

124    For these reasons, on a proper construction of the expressions in ss 24CG(3)(b) and 251A of the Act, I consider that the Kamilaroi/Gomeroi People were not entitled to participate in the authorisation process for the QGC–Bigambul agreement as if they were a conflicting group claiming to hold the common or group rights comprising the native title in some part of the Bigambul area, in circumstances where they had failed, as a group, to file a native title determination application under Div 1 of Pt 3 and have that application registered under Pt 7 of the Act.

125    It follows that, in the terms of the various provisions of s 5 of the ADJR Act relied upon by QGC (particularly s (5)(1)(f) and 5(1)(e) combined with s 5(2)(a)), the delegate erred in law by applying the “not merely colourable” test to assess the entitlement of the Kamilaroi/Gomeroi People to participate in the authorisation process for the QGC–Bigambul agreement, as a conflicting group, and further she erred in law by construing s 251A as she did, and finally she erred by taking account of irrelevant considerations, viz the conflicting claims of the Kamilaroi/Gomeroi People, as a group. I therefore consider that QGC is entitled to relief. The relief it has claimed in its amended application is as follows:

1.    An order setting aside that part of the Decision, in which the First Respondent found that the requirements of s 24CG(3)(b)(ii) of the NTA are not met, and consequently found that the condition in s 24CL(3) of the NTA is not met.

2.    A declaration that, in relation the Bigambul – QGC ILUA, the requirements of sections s 24CG(3)(b)(ii) of the NTA are met.

3.    An order directing the First Respondent to register the Bigambul – QGC ILUA on the Register of Indigenous Land Use Agreements.

4.    Such further or other order as the Court may deem appropriate.

126    At an early stage of these proceedings, the delegate agreed to abide the decision of the Court and took no further part in the proceedings (see at [8] above). While I consider QGC is entitled to an order along the lines of para 1 above, I have not heard from the delegate as to whether there are any matters yet to be considered by her that may still affect the decision to register the QGC–Bigambul agreement as an ILUA. This obviously bears on the relief sought in paras 2 and 3: see at [125] above. While I cannot readily identify any such matters, I think the preferable course in the circumstances is to ask the parties, including the delegate, to consider these reasons and to then bring in a set of orders to reflect them. If there are no such outstanding matters, then of course those orders may contain a declaration and an order along the lines of paras 2 and 3 (at [125]) above.

Associate:

Dated:    16 December 2011