FEDERAL COURT OF AUSTRALIA

Weribone on behalf of the Mandandanji People v State of Queensland (No 2) [2013] FCA 485

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 26 April 2013 be dismissed.

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

REASONS FOR JUDGMENT

1    On 15 March 2013 (the 15 March orders), I made interlocutory orders that controlled the way in which several million dollars, and currently payable entitlements to receive over $1.2 million more, should be dealt with in light of the current dysfunction in the applicant and a significant anthropological issue as to which of two possible groups will be found to comprise the native title claim group at the final hearing. On 25 March 2013, I gave reasons for those orders, and an earlier version of them that I made on 1 March 2013: Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 (my principal reasons).

2    Pursuant to orders 13 and 16 of the 15 March orders, the Deputy Registrar convened a mediation on 12 April 2013 to deal with any suggested changes to the 15 March orders so as to avoid any unnecessary or unintended adverse or inconvenient consequences flowing from them. Mandandanji Limited, Mandandanji Enterprises Pty Ltd and Mandandanji Cultural Heritage Services Pty Ltd (the Mandandanji Companies) filed a submission for the mediation with the Deputy Registrar that asserted that orders 2, 5 and 10 (described below) were made without a proper basis. They contended that the orders should be varied by adding a further order that those orders did not apply to funds held or received by the Mandandanji Companies or their directors. The mediation could not proceed in those circumstances. The parties agreed that that submission could be made available for the purposes of the further conduct of these proceedings in open court.

3    On 17 April 2013, the matter was relisted for hearing on 24 April 2013 and the Mandandanji Companies were ordered to file and serve an interlocutory application by 17 April 2013 identifying which of the 15 March orders they sought to have varied or discharged. In the event, no such interlocutory application was filed, until I made orders on 24 April 2013 extending the time for that to occur to 26 April 2013. The Mandandanji Companies then filed such an application seeking the orders they had foreshadowed to the Registrar.

4    Santos Limited and its subsidiaries sought a variation of order 3 of the 15 March orders so as to exclude any payment made to or for the benefit of an individual as a bona fide payment for personal services rendered, such as cultural heritage surveys, monitoring, other work relating to cultural heritage and all expenses related to those services, as agreed to under Cultural Heritage Management Plans or other cultural heritage agreements. However, at the hearing on 30 April 2013, the Santos respondents did not persist with seeking such an amendment. That was because they were not prepared to tender any agreement with any person under which payments of the kind they sought to have excepted might have been payable, so as to enable an order to be framed, if appropriate, that had regard to how the actual terms of such an agreement might be affected and accommodated, rather than the open ended ambulatory and unspecific variation of order 3 that the Santos respondents had sought.

The 15 March orders

5    The 15 March orders relevantly provided as follows:

    Order 2 provided that subject to order 4, until a determination of native title or further order, if any monetary benefit were payable to the applicant, the native title claim group named in the application or any member or members thereof or any person or entity for or on behalf of any one or more of them (collectively the payee) as a consequence of the operation of:

    the Native Title Act 1993 (Cth) (the Act);

    other legislation pursuant to which benefits may be derived because the claim group or any of its members had a particular status by reason of the operation of the Act;

the payee had to do all things necessary to require that the benefit be paid to the Registrar to be held for the benefit of the claim group.

    Order 3 defined “monetary benefit” and “all things necessary” so that the former expression excluded a payment made to or for the benefit of an individual as a bona fide reimbursement for travel, accommodation or expenses related to attending a meeting or negotiation, and the latter expression included giving instructions to third parties assisting the claim group and an authority to the payer of the monetary benefit to pay it in accordance with the 15 March orders.

    Order 4 required any person receiving any reimbursement excluded from the definition of “monetary benefit” in order 3 to prepare and submit to the Registrar and the applicant a written statement each quarter particularising what he or she had received and the activities for which it was provided.

    Order 5 required a payee of any money or benefit the subject of order 2 to direct the payer to provide information, verifying the payment or benefit, to the Registrar or solicitor for the claim group.

    Orders 6 and 7 required that, if a determination of native title were to be made in favour of the claim group unless the Court otherwise ordered, any moneys received by the Registrar under the 15 March orders be paid to, or at the direction of, the relevant prescribed body corporate, within 7 days, but if no such determination were made the moneys only be paid out in accordance with an order.

    Orders 8 and 9 required each ember of the applicant who has received any moneys or benefit of the kind referred to in order 2 to prepare and provide to the Registrar and the applicant a statement particularising those payments and benefits within 90 days and to direct the payer to verify those matters.

    Order 10 required each member of the claim group who was a director of any corporation that had received any payment or benefit since March 2009:

    for or on behalf of the claim group; or

    as a consequence of the operation of the Act or other legislation pursuant to which benefits may be derived because the claim group or any of its members had a particular status by reason of the operation of the Act;

to do all things necessary to require the corporation to account for those payments and benefits to the Registrar, the applicant and the solicitor for the claim group within 90 days.

    Order 11 gave leave to any person affected by orders 2 to 10 to apply to the Court to vary or discharge them by an interlocutory application on such notice as seems just.

    Orders 13 and 16 referred to mediation by the Registrar the issues of convening a meeting of the claim group to replace the current applicant under s 66B of the Act and what, if any amendments should be made to orders 2 to 10 to protect any legitimate commercial or other interests of persons affected by them. Further, or 16 required the Binge applicant, the Mailman applicant and the Mandandanji Companies to attend at the mediation.

The jurisdiction of the Court

6    The Act provides in s 213:

“213 Provisions relating to Federal Court jurisdiction

Native title to be determined in accordance with this Act

(1)    If, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in this Act.

Matters arising under this Act

(2)    Subject to this Act, the Federal Court has jurisdiction in relation to matters arising under this Act.”

7    Sections 22 and 23 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) provide:

“22 Determination of matter completely and finally

The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

23 Making of orders and issue of writs

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.”

The further elements of the statutory scheme

8    The Act “recognises and protects native title”, as s 4(1) provides. Next, s 10 states that “Native title is recognised, and protected, in accordance with this Act”. Importantly, ss 223(1) and 225 provide:

“223 Native title

Common law rights and interests

(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.

...

225 Determination of native title

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)    to the extent that the land or waters in the determination area are not covered by a non exclusive agricultural lease or a non exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note:    The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non native title interests. (bold non italic emphasis added)

9    A native title holder means, where, as is the case here, no prescribed body corporate is registered as holding the native title rights and interests on trust, “the person or persons who hold the native title” (s 224(6)). For the purposes of the Act, when used in references either to an act affecting native title or in relation to native title, the word “act”, includes the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters, or of any legal or equitable right, whether under legislation, a contract, a trust or otherwise or any act having any effect at common law or in equity (s 226(2)(c), (d), (f)). By force of s 227, an act “affects” native title “if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise”.

10    Division 3 of Pt 2 of the Act creates a number of mechanisms under which persons who assert or claim native title rights or interests can deal with third parties, in respect of them even though no determination of native title has been made. Such a dealing is called a “future act” and includes an act in relation to land or waters that, apart from the Act, validly affects the native title in relation to the land or waters to any extent (s 233(1)(c)(i)). Under Div 3 of Pt 2, future acts will be valid if parties to an indigenous land use agreement (ILUA), relevantly here an agreement made under Subdiv C of Div 3 of Pt 2, consent to it being done at a time when the particular ILUA relied on is on the Register of Indigenous Land Use Agreements (the ILUA Register) (s 24AA(3)). However, in general, valid future acts are subject to the non-extinguishment principle defined in s 238 (s 24AA(6)). This principle preserves the operation of native title rights and interests, even though some act, such as the grant of a mining lease, suspends their enjoyment while the lease remains in force (s 238(2), (3), (8)).

11    Relevantly, ss 24CA-24CL, in Subdiv C of Div 3 of Pt 2, deal with ILUAs made when there is, as here, no registered native title body corporate in relation to all of the area the subject of an application for a determination of native title under ss 13(1) and 61(1) of the Act (ss 24CA, 24CC). Such ILUAs must meet the requirements of ss 24CB-24CE (s 24CA). Those requirements include:

“24CB Coverage of area agreements

The agreement must be about one or more of the following matters in relation to an area:

...

(c)    the relationship between native title rights and interests and other rights and interests in relation to the area;

(d)    the manner of exercise of any native title rights and interests or other rights and interests in relation to the area;

(e)    extinguishing native title rights and interests in relation to land or waters in the area by the surrender of those rights and interests to the Commonwealth, a State or a Territory;

...

(f)    any other matter concerning native title rights and interests in relation to the area;

24CD Parties to area agreements

Native title group to be parties

(1)    All persons in the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement.

Native title group where registered claimant or body corporate

(2)    If there is a registered native title claimant, or a registered native title body corporate, in relation to any of the land or waters in the area, the native title group consists of:

(a)    all registered native title claimants in relation to land or waters in the area; and …

Note 1:    Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.

Note 2:    The agreement will bind all members of the native title claim group concerned: see paragraph 24EA(1)(b).

....

Other native title parties

(4)    If the native title group is covered by subsection (2), one or more of the following may also be parties to the agreement:

(a)    any other person who claims to hold native title in relation to land or waters in the area;

(b)    any representative Aboriginal/Torres Strait Islander body for the area.” (emphasis added)

12    As note 1 to s 24CD(2) explained, s 253 defined “registered native title claimant” in relation to lands or waters as meaning “… a person or persons whose name or names appear on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters”.

13    An ILUA may be given “for any consideration” by force of s 24CE(1). Any party to an ILUA under Subdiv C may, if all the other parties agree, apply in writing to the Registrar for it to be registered on the ILUA Register (s 24CG(1)). Such an application must be accompanied by the ILUA and any other prescribed documents or information (s 24CG(2)) and as s 24CG(3) provides:

“24CG Application for registration of area agreements

(3)    Also, the application must either:

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

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

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

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

Note:    The word authorise is defined in section 251A.

together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.” (bold non-italic emphasis added)

14    A representative body must not certify for the registration of an ILUA under s 203BE(5)(b) unless it is of the opinion that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters covered by the ILUA, first, both have been identified and, secondly, have authorised its making in accordance with s 251A. Under s 251A “persons holding native title in relation to lands and waters covered by an indigenous land use agreement authorise the making of the agreement” in a process similar to that in s 251B. Notably, however, s 251A creates the power to authorise for the holders of native title alone. That is in contrast to s 251B which gives such a power to “all the persons in a native title claim group”.

15    The Registrar must give notice of an ILUA that is lodged for registration to, among others, the relevant Commonwealth, State or Territory Ministers, representative body, local government bodies and the public (s 24CH)(1)). The public notice has to inform persons who claim to hold native title in relation to any of the lands and waters that they have three months to take particular action depending on whether the application for registration of the ILUA had been certified by a representative body or authorised by the claim group under s 251A. Provided that certain conditions are met, the Registrar must register the ILUA if no objections are made or if they are, those objections are subsequently withdrawn or do not meet particular criteria (s 24CH(2)-24CL).

16    Next, Subdiv E of Div 3 of Pt 2 deals with the effect of registration of an ILUA. Importantly, s 24EA(1) and (2) provide:

“24EA Contractual effect of registered agreement

(1)    While details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect, in addition to any effect that it may have apart from this subsection, as if:

(a)    it were a contract among the parties to the agreement; and

(b)    all persons holding native title in relation to any of the land or waters in the area covered by the agreement, who are not already parties to the agreement, were bound by the agreement in the same way as the registered native title bodies corporate, or the native title group, as the case may be.

Note:    Section 199B specifies the details of the agreement that are required to be entered on the Register.

Only certain persons bound by agreement

(2)    To avoid doubt, a person is not bound by the agreement unless the person is a party to the agreement or a person to whom paragraph (1)(b) applies.” (emphasis added)

17    Next, s 24EB(1) deals with the consequences of the doing of a future act that a registered ILUA authorises, including an act that the ILUA states is intended to surrender, and so extinguish, native title rights and interests. Section 24EB(2) provides:

“Validation of act

(2)    The act is valid to the extent that it affects native title in relation to land or waters in the area covered by the agreement.” (emphasis added)

18    However, unless the ILUA expressly provided for such a future act to extinguish native title rights or interests, s 24EB(3) provides that the non-extinguishment principle in s 238 applies to the future act when done. Relevantly, s 24EB(5) provides:

“Restriction on compensation where Subdivision C agreement

(5)    In the case of an agreement under Subdivision C, the following are not entitled to any compensation for the act under this Act, other than compensation provided for in the agreement:

(a)    any native title holder who is entitled to any of the benefits provided under the agreement;

(b)    any native title holder who authorised the making of the agreement as mentioned in:

(i)    if the application was certified by representative Aboriginal/Torres Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph 203BE(5)(b); or

(ii)    if the application included statements as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying all native title holders and ensuring that they have authorised the making of the agreement)—that paragraph.” (emphasis added)

19    Nonetheless, any native title holder in relation to the land or waters covered by an ILUA, who is not precluded from seeking compensation by, relevantly s 24EB(5), is given a right to compensation on just terms payable by the Commonwealth for those acts done under the ILUA that infringe the person’s native title rights and interests (ss 24EB(7), 17(2), (4)).

20    Part 8A of the Act deals with the ILUA Register. Critically s 199C(1) and (1A) relevantly provide:

“199C Removal of details of agreement from Register

Cases requiring removal

(1)    Subject to subsection (1A), the Registrar must remove the details of an agreement from the Register if:

…

(b)    in the case of an agreement under Subdivision C of Division 3 of Part 2—an approved determination of native title is made in relation to any of the area covered by the agreement, and any of the persons who, under the determination, hold native title in relation to the area is not a person who authorised the making of the agreement as mentioned in:

(i)    if the application relating to the agreement was certified by representative Aboriginal/Torres Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph 203BE(5)(b); or

(ii)    if the application relating to the agreement included a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met—that paragraph; or

....

Note:    If the details of an agreement are removed from the Register, the agreement will cease to have effect under this Act from the time the details are removed: see subsection 24EA(1) and paragraph 24EB(1)(b).

Federal Court order not to remove details

(1A)    If:

(a)    the Registrar is or will be required to remove the details of an agreement from the Register in a case covered by paragraph (1)(a) or (b); and

(b)    the persons who, under the approved determination of native title mentioned in that paragraph, hold native title apply to the Federal Court for an order under this subsection; and

(c)    the Federal Court is satisfied that those persons accept the terms of the agreement, in accordance with the process by which they would authorise the making of such an agreement;

the Federal Court may order the Registrar not to remove the details of the agreement from the Register.”

21    Additionally, under Pt 7 of the Act, if the Registrar is notified under s 189A that a decision or determination has been made by this Court, the Registrar must as soon as practicable amend any entry on the Register of Native Title Claims to reflect the decision or determination (s 190(4)).

The submissions that the Court did not have power

22    At the hearing on 30 April 2013, the representative body for the area appeared by its solicitor but informed the Court that it was unable to get instructions. This was because of the dysfunction in the applicant identified in my principal reasons.

23    The Mandandanji Companies argued that, while the Court had power to make the 15 March orders so far as they affected them, the circumstances did not justify the exercise of any such power to make those orders. They submitted that the conditions that would justify orders 2, 5 and 10 in the 15 March orders were not established, at least as those orders applied to them. Accordingly, the Mandandanji Companies contended that those three orders should be varied or set aside so as not to affect them, adding as a further reason that the Court lacked power to make such orders in the circumstances. That was because, so the argument ran, the three orders were not sufficiently related to the final relief sought in these proceedings being a determination of native title under s 225 of the Act. Such a result flowed, according to the Mandandanji Companies, Queensland and the Commonwealth, because of the reasoning of Brennan J in Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 620-621. His Honour said there of s 23 of the Federal Court Act:

“The relief which the Court is authorized to give does not extend beyond the grant of remedies appropriate to the protection and enforcement of the right or subject-matter in issue.”

24    The Mandandanji Companies asserted that the Court had no jurisdiction, in making orders under s 225, to declare the native title holders to be the owners or beneficiaries of funds, or to deal with moneys previously received by the applicant in such proceedings, the claim group, its members or others on their behalves. They argued that orders 2, 5 and 10 incorrectly failed to recognise that the moneys which those orders affected were the beneficial property of, relevantly, the Mandandanji Companies or the persons to whom those moneys were payable.

25    The Mandandanji Companies contended that it was necessary for other proceedings to be commenced, outside the present proceedings, if the Court were to exercise its powers to make the impugned orders. They contended that the scheme of the Act was such that, prior to a determination under s 225, an applicant could deal with benefits receivable by reason of its status as an applicant, including providing those to any members of the native title claim group as constituted from time to time and that nothing in the Act precluded that group from enjoying, without limitation, the benefits under ILUAs or s 31 agreements. They contended that the Act did not support the construction, at which I had arrived in my principal reasons, that the authorisation of an applicant to make a native title application and to deal with matters arising in relation to it under s 251B had hallmarks of a fiduciary relationship. The Mandandanji Companies submitted that the Act created a clear distinction between the rights conferred on an applicant or native title claim group prior to a determination of native title and those of a registered native title body corporate that would hold such rights for a person who had been found by a determination under s 225 to be actual native title holders. They contended that it was not a purpose of the Act to impose any duty on an applicant to act for the benefit of the persons who might be found ultimately to be entitled to a determination in their favour.

26    The Mandandanji Companies also argued that, prior to a final determination, third parties who dealt with the registered native title claimant or applicant always did so on a contingent basis. This required the third parties to evaluate the risk that the persons with whom they dealt may or may not be successful ultimately in achieving recognition as the native title holders in a final determination under s 225. They contended that the scheme of the Act, in permitting parties to enter into ILUAs and s 31 agreements, was intended to give third parties the certainty that, once an ILUA was registered, future acts done under it would be valid notwithstanding there was as yet no final determination of native title. The Mandandanji Companies pointed to the fact that, even where it was found that native title had been extinguished, the Act made no requirement for claimants who failed to obtain a determination that they were native title holders had to repay or disgorge any benefits they had obtained under ILUAs or s 31 agreements. They also argued that, under a final determination, the native title holders had no necessary entitlement to receive monies paid under an ILUA, since the effect of s 24EA(1)(b) is to bind all native title holders in the area covered by the agreement, whether or not they are parties to the ILUA. The Mandandanji Companies submitted that the provisions of the Act that conferred procedural rights on registered native title claimants enabled them to enter into ILUAs and s 31 agreements. They said that those rights were inconsistent with the existence of any fiduciary duty owed by those claimants ultimately identified as native title holders in a determination under s 225. The Mailman applicants adopted the Mandandanji Companies’ submissions.

27    Queensland argued that the Court had no power to make any injunctive order requiring that payments made under ILUAs or s 31 agreements be paid into Court pending a determination under s 225. It contended that there was no provision under the Act that payments made under an ILUA be paid to the persons ultimately found to hold native title or to a prescribed body corporate that holds native title rights and interests on trust (ss 55-57). It also argued that there was no provision in the Act under which an ILUA could be set aside by the Court if no native title determination were made or an application for native title were discontinued or was otherwise vitiated. Queensland argued that an ILUA continued in existence notwithstanding a determination of native title. It contended that, accordingly an ILUA, that permitted a future act to be done stood independently as a contract between the parties to it. The State submitted that in the context that the final relief sought in these proceedings was only for a determination of native title under s 225, the Court had no power to make the 15 March orders or orders of that kind so as to affect payments under ILUAs or s 31 agreements. Accordingly, Queensland contended that the Court did not have power to make all of orders 2 to 10 in the 15 March orders.

28    The Commonwealth supported Queensland’s arguments. It also contended that the Court did not have power to make orders, otherwise than by consent under s 87, about the use of monies paid under an agreement that was to form part of what was otherwise a consent determination, relying on Brown v South Australia (2010) 189 FCR 540. The Commonwealth argued that it followed that s 23 of the Federal Court Act was not a source of power to make an interlocutory injunction as to how native title holders or others should apply any compensation payable under an agreement where the Court had no power to make final orders of that kind. It contended that the Parliament had specifically incorporated safety mechanisms into the Act providing some rights to persons who were found to be native title holders in a determination under s 225 but who were not parties to ILUAs, where others benefited from those ILUAs. The Commonwealth referred to the consequences, where a determination found that a holder of native title was not a party to the ILUA, of deregistration of an ILUA under s 199C(1)(b) and the conferring on certain native title holders of a right to compensation under ss 24EA and 24EB. The Commonwealth expressed concerns that the 15 March orders could have unintended consequences such as the creation of uncertainty, and the undermining of the legislative intention underlying the voluntary and statutory future act mechanisms in the Act. It contended that the provision of benefits to a registered native title applicant:

“entices claimants to bring claims under the Act as opposed to claims at common law. Orders which [place a] fetter upon those benefits in an immediate way may unintentionally undermine the intentions of the future act mechanisms and the benefits of claims being made under the Act.”

Principles

29    This Court has power to protect the integrity of its processes once proceedings have been commenced: CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 391 per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. In Cardile v LED Builders Pty Limited (1999) 198 CLR 380 at 393 [25] Gaudron, McHugh, Gummow and Callinan JJ held that the integrity of those processes extends to preserving the efficacy of the execution that would lie against the actual or contingent judgment debtor. They added that “[t]he protection of the administration of justice which this involves may, in a proper case, extend to asset preservation orders against third parties to the principal litigation”. Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ explained the extent of the power under s 23 of the Federal Court Act in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 32-33 [35] as follows:

“The powers of the Federal Court under s 23 of its Act are powers “to make orders of such kinds, including interlocutory orders, as it ‘thinks appropriate’”, as Deane J noted in Jackson v Sterling Industries Ltd [(1987) 162 CLR 612 at 623. See also Jago v District Court (NSW) (1989) 168 CLR 23 at 74, per Gaudron J.]. He added:

“Wide though that power is, it is subject to both jurisdictional and other limits. It exists only ‘in relation to matters’ in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the ‘kinds’ of order, whether final or interlocutory, which are capable of properly being seen as ‘appropriate’ to be made by the Federal Court in the exercise of its jurisdiction.”

One limitation on the powers of the Federal Court to grant interlocutory injunctions is that those powers must be exercised for the purpose for which they are conferred. In a later passage of the judgment of Deane J in Jackson v Sterling Industries Ltd [(1987) 162 CLR 612 at 622], his Honour said a power to prevent the abuse or frustration of a court's process should be accepted “as an established part of the armoury of a court of law and equity” and that “the power to grant such relief in relation to a matter in which the Federal Court has jurisdiction is comprehended by the express grant to that Court by s 23 of the Federal Court of Australia Act”. But, his Honour observed [Jackson (1987) 162 CLR 612 at 625], orders must be framed “so as to come within the limits set by the purpose which [the order] can properly be intended to serve”. The Mareva injunction is the paradigm example of an order to prevent the frustration of a court's process [Rahman (Prince Abdul) v Abu-Taha [1980] 1 WLR 1268 at 1272; [1980] 3 All ER 409 at 411; Mercedes Benz AG v Leiduck [1996] AC 284 at 299, 306-307] but other examples may be found [Gibbs v David (1875) LR 20 Eq 373 at 377-378; Hatton v Car Maintenance Co Ltd [1915] 1 Ch 621 at 624-625; Heavener v Loomes (1924) 34 CLR 306 at 326; Hannam v Lamney (1926) 43 WN (NSW) 68; Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 at 276]. The moulding of an interlocutory injunction must depend upon the circumstances of each case. As Brennan J observed in Jackson v Sterling Industries Ltd [(1987) 162 CLR 612 at 621]:

“A judicial power to make an interlocutory order in the nature of a Mareva injunction may be exercised according to the exigencies of the case and, the schemes which a debtor may devise for divesting himself of assets being legion, novelty of form is no objection to the validity of such an order.”

The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked [See Tait v The Queen (1962) 108 CLR 620]. The Federal Court had jurisdiction to make interlocutory orders to prevent frustration of its process in the present proceeding.” (emphasis added)

30    In addition, when the Court is concerned with whether relief is available against third parties, its focus must be directed to the administration of justice: Cardile 198 CLR at 401 [42]. The power of the Court, as a superior court of record, to make orders under s 23 is broad but must only be exercised in a way appropriate to the case in hand (198 CLR at 405 [56]. However, where another statute provides an exhaustive code of available remedies that does not authorise the grant of an injunction, s 23 of the Federal Court Act will not authorise the Court to grant that additional relief. Nor does s 23 permit the Court to grant an injunction where no case for such relief exists under a statute or the general law (198 CLR at 396 [33]).

31    The process of the Court may be frustrated or abused if native title rights or interests are dissipated under the authority of an ILUA or s 31 agreement negotiated by claimants who are not some or all of the true owners, to the detriment of the persons who are later found to be the holders of native title by a determination made by the Court under s 225. That can occur, for example, when those claimants who are, or those who derive their title as, applicants with the benefit of an ILUA or s 31 agreement, are unable to, or for other reasons do not, pursue the native title proceedings with due diligence or in accordance with the overarching purpose of this Court’s civil practice and procedure provisions in s 37M(1) of the Federal Court Act. That purpose is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

32    It is notorious that native title litigation often takes many years to resolve. The ability of persons who make native title claims over lands and waters to negotiate ILUAs or s 31 agreements with third parties provides a very important mechanism to enable the community at large as well as commercial interests to undertake activities on those lands and waters while the Court proceeds to determine the question of whether those claimants, in fact, have the native title rights and interests that they assert. The scheme of Div 3 of Pt 2 of the Act seeks to facilitate the ability of those who claim native title rights and interests to deal with third parties who seek to engage in activities that cannot otherwise be done without the authority of all persons who actually have those rights and interests. Hence, s 24EA(1)(b) deems that a registered ILUA will operate to bind any actual holder of native title whose rights and interests in land are covered by the ILUA, despite such persons not being a party to it. And, s 24EB(2) expressly declares that an act done under the authority of a registered ILUA is valid to the extent that it affects native title. The rights of non-party native title holders to compensation is excluded by s 24EB(5)(a) if he or she is “entitled to any of the benefits provided under” a registered ILUA. Since s 24CE(1) enables the ILUA to be given for “any consideration”, the “benefit” conferred on a non-party native title holder can range from money’s worth to a purely nominal “benefit”. Thus, a native title holder who is deemed to be bound by s 24EA(1)(b) to a registered ILUA may find that he or she has a “benefit” such as a peppercorn or a promise to remediate land distributed by mining or other activity at some future time, while the claimants who negotiate the agreement used the rights to receive significant, and perhaps continuing, monetary payments.

33    If the non-party native title holder receives no benefit at all from a registered ILUA, he or she can look to the Commonwealth under ss 24EB(7), 97(2) and (4) when, perhaps many years later, his or her right or interest ultimately is determined under s 225. Such a payment of compensation may be a poor substitute for the impact of the intervening acts on the non-party (i.e. the true) native title holder’s lands or waters that he or she would not have authorised. Monetary compensation will not always be commensurate with the value to a person of the loss caused by disturbance of his or her emotional, familial or spiritual connection to land or waters in their natural or undisturbed state. Somewhat similarly in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 214 [100]-[101] Gummow, Hayne, Crennan, Kiefel and Bell JJ discussed the incommensurability of the value of orders for costs occasioned by a delay in litigation with the resulting strain and disappointment suffered by the party affected by the delay. However, that may provide an inadequate analogy for the impact of irreversible acts authorised by an ILUA or s 31 agreement negotiated bona fide by a claimant who may obtain substantial benefits but is later found not have been a holder of native title.

Consideration

34    An application for a determination under s 225, when filed, seeks an order from the Court that declares that persons hold a currently existing congeries of native title rights and interests. That congeries of rights and interests is the subject matter of proceedings for relief under s 225. The fact, pursuant to an ILUA under s 24EB(1) and (2), that such a congeries, or components within it, can be dealt with, or indeed that some or all native title rights and interests can be extinguished indicates that speedy rather than protracted resolution of s 225 matters by the Court is a vital part of its jurisdiction and the use of its processes in the exercise of the jurisdiction conferred by s 213(2).

35    The importance of the Court resolving matters under s 225 timeously is reinforced by the effect of s 199C(1)(b). That provision requires the Registrar to remove the details of an ILUA from the ILUA Register if any holder of native title that the Court determines under s 225 was not a person who authorised the ILUA. That is, the Parliament intended that the true owners’ rights, when determined under s 225, would immediately supervene over those of mere claimants of those rights who were permitted to exercise them by procedures in Subdiv C of Div 3 of Pt 2 while the title remained in doubt. Therefore, the Act recognises in s 199C(1) an immediate relationship between a determination under s 225(a) of who the persons holding native title are and the rights of parties to an ILUA over the lands and waters the subject of that determination to continue to be entitled to the benefits of the ILUA.

36    The scheme of the Act does not create an exhaustive code of exclusive remedies such as would preclude the ordinary exercise of the Court’s jurisdiction under s 23 of the Federal Court Act: Cardile 198 CLR at 396 [33]. Nor does the fact that a determination under s 225 of the Act is the final relief sought in these proceedings preclude the making of the 15 March orders or orders of that kind so as to protect the status quo while, at least, the applicant on the Court’s record is unable to give its solicitors instructions or progress the proceedings. The submissions of the Mandandanji Companies, Queensland and the Commonwealth ignored the significance of the fact that the rights and interests in s 225(b) claimed when an application is filed in the Court are the subject matter of the proceedings. While the Act allows those rights and interests to be eroded in certain circumstances (such as are provided in Subdiv C of Div 3 of Pt 2) the Court must have jurisdiction to preserve those rights and interests, or the benefits that others have gained from their use, for those who were truly the persons who it determines owned them.

37    The 15 March orders do not, and are not intended to, interfere with the ordinary, operations of the Mandandanji Companies which have commercially and charitably appropriate purposes. Any practical or unintended difficulties which the current form of the orders has on those companies was not the subject of argument which was confined to the Court’s powers. Indeed, any such matters should be capable of being resolved at the mediation when it resumes, and by the Court if that does not occur.

38    As I found in my principal reasons, at present there is no longer an applicant authorised by the claim group able to take steps in or prosecute the existing application or deal with matters in relation to it: Weribone [2013] FCA 225 [55]. There is no certainty how long that situation will continue, or, given the presently indeterminate anthropological evidence, whether any replacement applicant will succeed in obtaining a determination of native title under s 225. The impasse has already delayed any progress in these proceedings since late 2011 when the competing s 66B applications were filed and awaited resolution.

39    There is a real potential for prejudice to be done to the true holders of native title by delay or uncertainty in the period before the Court can make a determination under s 225. Native title rights and interests can be exploited, dissipated and extinguished by acts that are deemed valid by s 24EB(2). Persons who, by their status of applicant or claimants of native title, may make an ILUA but later be found to have had no, or no sufficient, rights or interests in the affected lands and waters. The process of the Court must be used in a way that, so far as is reasonable and appropriate, will guard against intervening erosion of a true native title holder’s rights and interests that can occur because third parties have intermediate rights to deal with those rights and interests in the period before a determination under s 225 can be made. A native title holder has limited rights to claim pecuniary compensation in respect of the earlier use by others, under ILUAs or s 31 agreements, of his or her rights and interests lands and waters by persons who are later found by the Court not to have been, in fact, holders of that title.

40    Lawful activities including extinguishment of native title, destruction of sites of cultural heritage or significant native title holders or exploitation of mineral rights can affect permanently lands and waters that become the subject of a determination under s 225 can occur as a result of any delay in making that determination. That delay has the capacity to prejudice the proper administration of justice, as well as keeping whoever, if anyone, is entitled to a determination under s 225 from enjoying the benefits of that outcome. The 15 March orders protect the integrity of this Court’s processes and the entitlements of the persons whose actual rights and interests in the determination area that will be determined under s 225(b) to enjoy them as they would but for the delay and possible interposition of persons who do not have those: CSR 189 CLR at 391; cf Aon 239 CLR at 217-218 [112]-[115].

41    The nature of a determination of native title under s 225 involves the ascertainment and precise identification, as required by s 94A, of, among other matters, who the actual native title holders are, the nature and extent of their native title rights and interests, as well as any other interests, in relation to the determination area (s 225(a), (b) and (c)). If the Court finds under s 225(a) that any of the members of the applicant in the proceeding or the claim group are not the only persons holding native title, then, if an ILUA affecting any part of the determination area was authorised by a person who is not included in the native title holders identified under that determination, s 199C(1) requires the Registrar to remove the details of that ILUA from the ILUA Register. That removal will have the effect that any acts subsequently done pursuant to that ILUA will not have the protection or validity conferred on future acts in s 24EB. Similarly, s 190C(4) requires the Registrar to amend the Register of Native Title Claims to reflect the outcome of any determination under s 225.

42    One critical incident of a native title right or interest in particular land or waters determined under s 225(b) is that its holders are entitled to the immediate enjoyment of that right or interest to its full extent identified in that determination often to the exclusion of any other person. The right or interest may be to the exclusive possession of land or waters or it may be more limited, so that it is enjoyed subject to non-native title interests determined under s 225(c). Those same rights and interests can also be the subject matter of ILUAs and s 31 agreements.

43    The authority conferred by the Act on an applicant or native title claimants to negotiate ILUAs and s 31 agreements under which such persons can obtain substantial benefits is conditioned to some degree by ss 24CG(3), s 203BE(5) and 251A. Those provisions are intended to encourage the inclusion of all potential, native title holders in the making of ILUAs and s 31 agreements. The Parliament selected the representative body in the area concerned and the process of authorisation under s 251A as a means of seeking to bring about such inclusiveness. Thus, the representative body either must certify an ILUA (s 24CG(3)(a)) or state that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to the land or waters covered by it have been identified (s 24CG(3)(b)(i)).

44    ILUAs and s 31 agreements are matters that have their foundations in the Act. Each of ss 24CG(3), 29(3) (which requires, unless there is a registered native title body corporate, a Government party to give notice to the public concerning future acts proposed as the subject of negotiations for agreements to be made under ss 31 or 32) and 203BE(5) contemplate that persons may hold native title (or other interests) who have not been included directly in the negotiation process for ILUAs and s 31 agreements. Significantly, s 24CG(3) and 203BE(5) contemplate that all reasonable efforts should be made to ensure that all persons who may and actually hold native title in relation to land or waters proposed to be affected have, first, been identified and, secondly, authorised the making of the ILUA under s 251A. Those sections recognise the substantial power given by the Act to persons negotiating ILUAs on behalf of all persons who may or actually hold native title. In my opinion, for the reasons I gave in Weribone [2012] FCA 225 at [60]-[62] that power is a fiduciary power that must be exercised in the interests of and for the benefit of that wide class. The power has the potential to benefit persons who make claims for native title that ultimately fail. Indeed, the terms of s 251A suggest that the only persons who can validly authorise an ILUA are the actual native title holders. It may be that when s 251A is read with ss 24CG(3)(b) and 203BE(5), the scheme in Subdiv C of Div 3 of Pt 2 and the Act as a whole, authorisation by all the persons who, the representative body is satisfied, hold or may hold native title would appear to be sufficient. However, this issue was not argued and need not be decided on the present application.

45    It can hardly have been the intention of the Parliament that persons who were simply claimants be able to use their mere and contestable status to enrich themselves to a substantive and permanent extent at the expense of the true native title holders. Such a construction would be in the teeth of the object and purpose of the Act in ss 3 and 4(1). It would defeat the important consideration which the Parliament recognised in the following paragraph in the Preamble to the Act:

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

46    A trustee is entitled to be indemnified and exonerated out of the trust assets, and to that extent has a beneficial interest in it: Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 at 246-247 [48]-[51] per Gleeson CJ, Toohey, Gaudron, McHugh and Gummow JJ. Although the role of an applicant or claimant who negotiates an ILUA or s 31 agreement is not that of a trustee for a reward, it involves the duty to act on behalf of not only the claim group which that party represents but also all the persons who hold native title. It may be that, in the final result, that party will be found not to hold any native title. The Act contemplates that the party’s work involved in the negotiation, and the potential compromise of rights or interests that the party claimed in good faith cannot be left uncompensated. Thus, subject to observing the fiduciary duties the party owes to the true native title holders, it is entitled to bargain for and obtain an appropriate and reasonable benefit in all the circumstances which can be enjoyed pending the result of the final hearing.

47    Claimants for native title have rights and powers under Div 3 of Pt 2 of the Act to negotiate some reasonable and proportionate benefit for themselves as a stopgap until the identity of the actual holders of native title is determined by the Court. Those rights and powers must not be used by those claimants in a way that ignores or defeats the rights and interests of the true native title holders. The right to enjoy monies payable to or at the direction of the applicant or native title claimant who negotiated an ILUA or s 31 agreement derives from that person’s use of his, her or its status and duty to act on behalf of the true native title holder authorised by the Act. An incident of that status also confers rights to negotiate for cultural heritage agreements under the Aboriginal Cultural Heritage Act 2003 (Qld) (the ACH Act): see Weribone [2013] FCA 225 at [59].

48    It is essential, as the Parliament envisaged in creating the scheme enacted in Div 3 of Pt 2, that third parties be able to deal with someone who has power to enter into binding agreements in respect of lands and waters over which an undetermined claim for native title exists. However, the requirements of ss 24CG(3) and 203BE(5) that all reasonable efforts be made to include the true native title holders in the authorisation process and the deeming effected by s 24EB(2) that all persons who are or may be holders are bound by an ILUA whilever it remains on the ILUA Register, indicate that the legislative intention that an ILUA is primarily for the benefit of the true holders. Likewise, the requirement in s 251A that only all native title holders (rather than claimants) can authorise an ILUA on a final basis provides a further indication of that legislative intention.

49    Queensland and the Commonwealth argued that such a construction would stultify the utility of ILUAs and s 31 agreements because persons with claims to native title would be discouraged from negotiating if they had to advert to the interests of all persons who, in fact, held native title. In my opinion, that is not likely to occur, but if it did occur in particular cases there will be a keen incentive on all persons interested in establishing that they have native title for a prompt determination by the Court of the issue of who in fact holds the native title over the relevant lands and waters. There is no good reason why any bona fide claimants for native title would not ensure that an ILUA made provision for the actual holders of that title to receive the substantial benefits to be derived from the agreement, while making appropriate, but reasonable, provision for what is to be paid or payable in the interim.

50    The status of being an applicant or claimant, and the rights to negotiate such agreements as ILUAs, s 31 and cultural heritage agreements, are not, and should not be used, by the holder of that status as if he, she or they were absolutely entitled to the rights and interests claimed. Such persons were not intended to receive benefits of the kind that ought properly be enjoyed by the true owners. On the other hand, a person making a bona fide claim is entitled under the scheme of Div 3 of Pt 2 of the Act to include provisions in an ILUA entitling him, her or them to receive some benefit for negotiating and agreeing, on behalf of all persons who both claim (bona fide), and actually hold, native title rights and interests in the land and waters concerned. Without being exhaustive, such provisions could include reasonable and appropriate recompense for identification of lands or waters that had significance for the claim group or others who might hold native title rights and interests in them. They could also include provisions to pay money to charitable trusts to be held and used for the benefit of the holders of the native title rights and interests affected.

51    Powers of this kind must not be used for purposes beyond their scope, as Williams ACJ, Fullagar and Kitto JJ explained in Ngurli Ltd v McCann (1953) 90 CLR 425 at 438. Although their Honours were considering the powers of shareholders and directors, the following passage is of general application to powers of the kind conferred in the Act on persons such as applicants or claimants for native title:

“But the powers conferred on shareholders in general meeting and on directors by the articles of association of companies can be exceeded although there is a literal compliance with their terms. These powers must not be used for an ulterior purpose. “The term fraud in connection with frauds on a power does not necessarily denote any conduct on the part of the appointor amounting to fraud in the common law meaning of the term or any conduct which could be properly termed dishonest or immoral. It merely means that the power has been exercised for a purpose, or with an intention, beyond the scope of or not justified by the instrument creating the power”, per Lord Parker in Vatcher v Paull [[1915] AC 372, at 378]. “The Court will not allow him” (that is the appointor) “to interpret the donor's intention in any other sense than the Court itself holds to be the true construction of the instrument creating the power; and a literal execution of the power, with a purpose which it does not sanction, is regarded as a fraud on the power”, per Hatherley L.C. in Topham v Duke of Portland [(1869) 5 Ch App 40, at 59]. Voting powers conferred on shareholders and powers conferred on directors by the articles of association of companies must be used bona fide for the benefit of the company as a whole.” (emphasis added)

Relief claimed by the Mandandanji Companies

52    The Mandandanji Companies seek an order that orders 2, 5 and 10 of the 15 March orders do not apply to funds held or payable to any of them or their directors. Orders 2 and 5 apply to members of the applicant and the claim group or persons or entities on their behalves to whom or which any monetary benefit is payable as a consequence of the Act or the person’s or entity’s status deriving from the Act, to cause the benefit to be paid to the Registrar to be held on trust for the benefit of the claim group (or as the Court orders if order 7 applies at that time). Moreover, the payee has to direct the payer to provide verification of the payment to the Registrar, applicant and solicitor for the claim group. Order 10 specifically applies to each member of the claim group who is a director of any corporation which has received any payment or benefit since March 2009 for or on behalf of the claim group or by reason of the claim group’s status. In such a case, the director must cause the corporation to account to the Registrar, the applicant and the solicitor for the claim group for any such payment or benefit.

53    The applicant brought these proceedings for a determination of native title in respect of, inter alia, its or the claim group’s native title rights and interests in relation to the claim area identified in the application (s 225(b)). Each of orders 2, 5 and 10 operates on a person who receives a monetary benefit that is directly derived from a connection with the applicant in these proceedings or its associates (i.e. the claim group or someone receiving the payment at its direction).

54    Each of orders 2, 5 and 10 is protective of native title rights and interests claimed in these proceedings under s 225(b). The status, under the Act, of the existing applicant in these proceedings is the ultimate source of ILUAs, s 31 agreements and payments under the ACH Act from which the payments and benefits the subject of the orders derives. That status was conferred so that a determination of native title under s 225 could be made in these proceedings in order that, if possible, the actual native title holders of the lands and waters in issue would benefit from a judicial declaration of their rights and interest.

55    Here, the rights and interests in respect of native title in the land and waters that have been dealt with by the applicant, or others on its behalf or with its authority, in an ILUA or s 31 agreement the subject of the 15 March orders will be the native title rights and interests of persons who are native title holders that ultimately will be determined under s 225(b) by the Court in these proceedings. The proceeds derived from the applicant’s present exploitation of those rights and interests cannot be paid to or dealt with by whoever is entitled to a determination of native title under s 225 until, first, a replacement applicant is appointed and, possibly, secondly, a consent determination is made or a final hearing occurs that leads to a determination. The true owners will be held out of the enjoyment of their rights and interests for however long any such processes of the Court take. The Court can preserve and protect that subject-matter in the meantime, as the 15 March orders do: cf Edwards v Santos Ltd (2011) 242 CLR 421 at 437-439 [40]-[46] per Heydon J, with whom French CJ, Gummow, Crennan, Kiefel and Bell JJ agreed at 425 [1].

56    For these reasons I reject the Mandandanji Companies’ and the Mailman applicant’s arguments that orders 2, 5 and 10 were beyond the power of the Court in the circumstances.

Were the other impugned 15 March orders beyond power?

57    I also reject the broader arguments of Queensland and the Commonwealth that orders 2 to 10 inclusive were beyond the power of the Court. Their reliance on Brown 189 FCR at 545 [20]-[22] was misconceived. In that case, Mansfield J held that s 225(d) of the Act did not authorise the Court to impose a term in a determination of native title that any compensation payable by mining companies in respect of impaired or extinguished native title rights or interests be applied in a specified way. There was no claim in that matter for compensation in the application filed in the Court. His Honour held that a consent determination in those circumstances could not comprehend the ascertainment of whether, and if so what, any compensation was payable for extinguishment under ss 50(2) and 61. Mansfield J held that it followed that it would be a further and more remote step for a party to insist on orders being made as to how the native title holders whose rights had been extinguished should apply any such compensation were it payable and quantified. He observed that neither ss 225(b) or (c) was concerned with compensation payments.

58    Mansfield J was considering a different question to that here. The 15 March orders are not directed to imposing a requirement for compensation of the persons who hold native title or in quantifying the amount of compensation. Rather, the 15 March orders operate on the fruits of agreements that currently exist and deal with the native title rights and interests claimed under s 225(b). The orders seek to keep those payments under the control of the Court so that they are payable to the holders of the rights and interests determined under s 225(b), subject to allowing appropriate and reasonable payments to third parties in the interim. The 15 March orders were made in circumstances where there was no functional applicant and a real question as to who the native title holders are. The 15 March orders are intended to hold the status quo so as to ensure that when a determination is made under s 225 the persons entitled get the benefit of the native title rights and interests, if any, that the Court will find they have. If no determination is made, order 7 will allow the Court to decide to whom such money should then be paid. The 15 March orders are not concerned with quantification; they fix on the exploitation of rights and interests claimed under s 225(b) that has already occurred in part and preserve the subject matter of that exploitation – the monetary benefits paid and payable – until the Court can determine how it should be distributed after a determination or other order. Of course, the 15 March orders are not final orders and can be varied so as to prevent any unintended consequences or injustice in their operation.

59    Moreover, s 22 of the Federal Court Act will enable appropriate orders to be made at the time these proceedings are resolved by a consent determination or orders after a final hearing. In Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161, Gibbs CJ, Stephen, Mason and Wilson JJ said that the power conferred by s 22 was:

“… designed to ensure that the Court can grant relief which is appropriate to both legal and equitable claims and to avoid multiplicity of proceedings. Its effect is to enable the Court to dispose of all rights, legal and equitable, in the one action, so far as that is possible ...”

60    For these reasons, and those in my principal reasons, I am satisfied that the Court had power to make orders 2 to 10.

Amendments to the 15 March orders

61    It is apparent now that there will be significant sums of money payable to, and considerable work for, the Registrar in implementing and acting under the 15 March orders. Those are tasks better performed by private persons qualified to act as trustees, liquidators or receivers. I asked the parties at the hearings on 26 and 30 April 2013 to identify a suitable person who could be appointed as a trustee in the 15 March orders in lieu of the Registrar. Once the mediation concludes I will resolve any outstanding issues and amend the 15 March orders as appropriate, including by appointing a suitable person as trustee.

Conclusion

62    The Mandandanji companies interlocutory application must be dismissed. They will still be able to propose appropriate and reasonable amendments to the 15 March orders consistent with my principal reasons and those above. At the time that the 15 March orders were made it was not clear, and still is not, what appropriate further exceptions ought be made to protect or reflect the legitimate entitlements of any person bound them to receive payments or benefits. I intended that the identification of those exceptions would occur, at least initially, in the mediation under order 16, where the various persons presently or potentially interested in those matters could freely and frankly negotiate suggested variations to the 15 March orders.

Associate:

Dated:    23 May 2013

SCHEDULE

QUD 366 OF 2008

BETWEEN:

ALEXANDRA COMBARNGO, DAVID COMBARNGO, VIOLET JEAN COSTA, LEIGH HIMSTEDT, PHYLLIS BERYL HOPKINS, MIRANDA MAILMAN, SYLVIA JOYCE McCARTHY, LORRAINE FLORENCE TOMLINSON, SARAH TRINDALL AND LESLIE JAMES WERIBONE ON BEHALF OF THE MANDANDANJI PEOPLE

Applicant

AND: