FEDERAL COURT OF AUSTRALIA

Gibson v Rivers-McCombs [2014] FCA 144

THE COURT ORDERS THAT:

1.    the application be dismissed.

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

REASONS FOR JUDGMENT

HISTORY

1    By deed of grant in trust dated 17 July 1986 (the “original DOGIT”) the Crown granted to the second applicant (the “Council”) fee simple title over certain land situated in and around Hopevale in Far North Queensland. The land was to be held upon trust for the benefit of Aboriginal residents and for no other purpose whatsoever. The grant was subject to various qualifications, restrictions and exclusions.

THE DETERMINATION

2    On 8 December 1997, pursuant to the Native Title Act 1993 (Cth) (the “Native Title Act”) Beaumont J made a native title determination (the “Determination”), effectively by consent. See Erica Deeral (on behalf of herself and the Gamaay Peoples) & Ors v Gordon Charlie & Ors (QG 174 of 1997). His Honour described the “lands in question” as having been the subject of a grant in 1986 by the Queensland Government to the Council to be held upon trust for the benefit of aboriginal inhabitants. His Honour then observed that after lengthy negotiations, agreement had been reached as to the Determination. Such agreement was “evidenced in comprehensive documentation now before the Court”. A chronology was annexed to the reasons. The Determination was contained in a separate document in which the Court noted:

A.    That the Applicants and the Respondents have reached an agreement in accordance with the terms contained in the Deed of Agreement between the Applicants and the Respondents dated 17 November 1997 (“the Deed”), and the Deed of Agreement between the Applicants, the State of Queensland, and the Queensland Commercial Fishermen’s Organisation (“the QCFO Deed”) dated 17 November 1997 (copies of which are annexed to this determination), in relation to these proceedings and all matters arising out of these proceedings.

B.    That in clause 1 of the Deed, the parties agreed “….. to make application to the Federal Court of Australia for a consent order for a determination of native title rights and interests of the Applicants in the dogit land in the terms of the Schedule…..”

C.    That pursuant to sub-section 87(1)(a)(i) of the [Native Title Act] the parties have reached agreement that the Court make determinations in relation to the proceedings in the terms of the Deed and the QCFO Deed, and that those deeds form part of the determination.

…

G.    That the Applicants, as representatives of the common law holders of the respective clans which they represent, have not made a nomination pursuant to sub-section 56(2) of the [Native Title Act] in regard to the holding of native title on trust.

H.    The parties have requested that the Court, pursuant to sub-section 56(2)(c) of the [Native Title Act], make a determination that the native title rights and interests area held by the common law holders.

I.    That Herman Bambie, as a representative of the common law holders of the Thuubi clan, has made a nomination pursuant to sub-section 57(2)(a) of the [Native Title Act] that the Dhubbiwarra Aboriginal Corporation, a prescribed body corporate, perform the functions mentioned in sub-section 57(3) of the [Native Title Act].

J.    That the common law holders of the Gamaay, Nugal, Nguurruumbungu, Dharrpa, Binhthi, Thiithaarr, Thanil, Nguymbaarr Nguymbaarr, Ngaatha, Gulaal and Buurnga clans are in the process of seeking to incorporate pursuant to the Aboriginal Councils and Associations Act 1976 (Cth), the Hopevale Congress Aboriginal Corporation to be a prescribed body corporate and perform the functions mentioned in sub-section 57(3) of the [Native Title Act].

K.    That the common law holders of the Dingaal clan are in the process of seeking to incorporate pursuant to the Aboriginal Councils and Associations Act 1976 (Cth), the Walmbaar Aboriginal Corporation to be a prescribed body corporate and perform the functions mentioned in sub-section 57(3) of the [Native Title Act].

L.    That pursuant to clause 17 and 18 of the Schedule to the Deed, upon the making of this determination and the registration of the Hopevale Congress Aboriginal Corporation, the Dhubbiwarra Aboriginal Corporation and the Walmbaar Aboriginal Corporation (or such other corporations as prescribed bodies corporate) on the National Native Title Register pursuant to sub-section 193(2)(d) of the [Native Title Act], the Applicants will direct their respective registered native title bodies corporate to enter into the section 21 agreements contained in Annexures 4, 5, 6 and 7 of the Schedule to the Deed.

3    The Court determined as follows:

1.    That the native title rights and interests exist in relation to the land and waters of the Hopevale Deed of Grant in Trust to the high water mark, being the land described in clause 1 of the Schedule to the Deed, in accordance with and subject to the terms of the Schedule to the Deed (which is Annexure 1 to this determination), and the QCFO Deed (which is Annexure 2 to this determination).

2.    That in accordance with Annexure 2 of the Schedule to the Deed:

2.1    native title rights and interests have been extinguished on the areas of land listed in Table A; and

2.2    native title rights and interests may have been affected by a lawful physical activity carried out pursuant to granted interests on the land or waters listed in Table B, and

2.3    the determination does not apply to historical portions 2v, 6v, 16v and 18v, being historical tenures formerly contained in part of the land described in clause 1 of the Schedule to the Deed, and graphically displayed on the map included as Annexure 3 to this determination.

3.    The native title rights and interests which exist in accordance with the Deed and the QCFO Deed are held by the common law holders of the following clan groups for their respective clan estates:-

Gamaay clan;

Dingaal clan;

Nugal clan;

Thuubi clan;

Nguurruumungu clan;

Dharrpa clan;

Binhthi clan;

Thiithaarr clan;

Thanil clan;

Nguymbaarr Nguymbaarr clan;

Ngaatha clan;

Buurnga clan; and

Gulaal clan,

4    Clauses 4 to 15 required that the named representative or representatives of each clan (other than the Thuubi clan) nominate a prescribed body corporate to perform the functions mentioned in s 57(3) of the Native Title Act, such nominations to be made within six months of the Determination. Clause 17 dealt with the Thuubi clan which had already incorporated and nominated its prescribed body corporate, the Dhubbi Warra Aboriginal Corporation (“Dhubbi Warra”). The Court appointed it accordingly.

the deed and the qcfo deed

5    Clearly, the “Deed of Agreement between the Applicants and the Respondents dated 17 November 1997” (the “Deed”) and the “Deed of Agreement between the Applicants, the State of Queensland and the Queensland Commercial Fishermen’s Organisation” (the “QCFO Deed”) were incorporated into the Determination, as was the Schedule to the Deed. The QCFO Deed has no present relevance. All of the applicants and respondents in the native title proceedings were, and are parties to the Deed, the respondents in those proceedings being:

    State of Queensland;

    the Council;

    Cape Flattery Silica Mines Pty Ltd;

    Cook Shire Council;

    Far North Queensland Electricity Corporation;

    Telstra Corporation Limited;

    Queensland Commercial Fishermen’s Organisation;

    Gordon Charlie;

    Australian Maritime Safety Authority; and

    Cape York Land Council Aboriginal Corporation.

6    The Deed itself is short and quite formal. Apart from provisions relating to execution, cll 4, 5 and 6 provide:

4.    All parties agree to do such further acts as shall be reasonably required to give full effect to this Deed.

5.    Following the making of the Determination, and the determination of the registered native title bodies corporate pursuant to section 57 of the [Native Title Act], the Applicants irrevocably undertake to direct their respective registered native title bodies corporate to execute the section 21 agreements contained in Annexures 4, 5, 6 and 7 to the Schedule to this Deed.

6.    A reference to “this Deed” includes a reference to the Schedule to this Deed and Annexures to the Schedule.

THE SCHEDULE

7    The Schedule deals with most of the matters usually dealt with in a native title determination. After recording that native title rights and interests exist in relation to the land and waters contained in the original DOGIT (the “DOGIT land”) to the high water mark, it recognizes the extinguishment of certain native title rights and interests. Clauses 4 and 5 and Annexure 1, (a map), identify those parts of the claim area which comprise discrete clan estates. Clauses 6, 7 and 8 identify the native title rights and interests recognized by the Determination as follows:

6.    The native title holders are entitled to the exclusive possession, occupation, use and enjoyment of the native title land (“the native title rights and interests”) in accordance with valid State and Commonwealth laws.

7.    The native title rights and interests of importance are rights and interests in accordance with custom and tradition to:-

7.1.    Have access to and use of the natural resources of the native title land including the right to:-

7.1.1    maintain and use the native title land;

7.1.2.    conserve the natural resources of the native title land;

7.1.3.    safeguard the natural resources of the native title land for the benefit of the native title holders;

7.1.4.    manage the native title land for the benefit of the native title holders;

7.1.5.    use the natural resources of the native title land for social, cultural, economic, religious, spiritual, customary and traditional purposes.

7.2.    Determine access rights in relation to entry to the native title land by others including the right to grant, deny, or impose conditions in relation to, entry to the native title land.

7.3.    Determine use rights in relation to activities which may be carried out by others on the native title land including the right to grant, deny, or impose conditions in relation to, activities which may be carried out on the native title land.

7.4.    Exercise and carry out economic life (including by way of barter) on the native title lands including to hunt, fish and carry out activities on the native title land, including the creation, growing, production or harvesting of natural resources.

7.5.    Discharge cultural, spiritual, traditional and customary rights, duties, obligations and responsibilities on, in relation to, and concerning the native title land including to:

7.5.1.    preserve sites of significance to the native title holders and other Aboriginal people on the native title land;

7.5.2.    determine, give effect to, pass on, and expand the knowledge and appreciation of the culture and tradition;

7.5.3.    regard the native title land as part of the inalienable affiliation of the native title holder to the native title land and ensure that the use of the native title land is consistent with that affiliation;

7.5.4.    maintain the cosmological relationship beliefs, practices and institutions through ceremony and proper and appropriate custodianship of the native title land and special and sacred sites, to ensure the continued vitality of culture, and the well-being of the native title holders;

7.5.5.    inherit, dispose of or confer native title rights and interests in relation to the native title land on others in accordance with custom and tradition;

7.5.6.    determine who are the native title holders; and

7.5.7.    resolve disputes in relation to the native title land.

7.6.    Establish residences on the native title land.

8.    Any other native title rights and interests are derived from those native title rights and interests listed in clause 7.

8    Clauses 9 and 10 recognize limitations upon the exercise of the native title rights and interests as follows:

9.    The exercise of the native title rights and interests is subject to:

9.1.    the right of [the Council] to exercise its lawful statutory powers, duties and functions on the native title land in accordance with valid State laws;

9.2.    the valid registered leases (if any) approved by the Council and granted by the State as set out in Annexure 3;

9.3.    the rights conferred on any other party by any of the section 21 agreements contained in Annexures 4, 5, 6 and 7 to the Determination (“the section 21 agreements”);

9.4.    the Mining Leases 2806, 7069, 40048 and 2965 held by Cape Flattery Silica Mines Pty Ltd and any valid renewal thereof; and

9.5.    valid State and Commonwealth laws.

10.    In accordance with clause 9 and Part H, the exercise of the native title rights and interests is subject to the right of the State, Telstra, or any public authority responsible for infrastructure or public works within the native title land to enter on to the native title land to repair, maintain, extend and improve that infrastructure or public works. That right shall only be exercised:

10.1.    in accordance with the section 21 agreements;

10.2.    in the case of any other party, subject to the protocols; and

10.3.    according to valid State and Commonwealth laws.

9    Clause 16 provides:

The native title holders recognise:

16.1.    the traditional rights of the people who are members of the other clan groups possessing native title rights and interests in the native title land or any part thereof to travel over, hunt, camp, fish and gather on the [DOGIT land] in accordance with each of the native title holders’ traditional laws and customs; and

16.2.    the rights of Aboriginal historical residents of the [DOGIT land] to travel over, hunt, camp, fish and gather on the native title land in accordance with the traditional laws and customs of each of the native title holders.

10    Clauses 17, 18 and 19, dealing with future acts, provide:

17.    Upon the making of the Determination as a Federal Court order and the determination of the respective registered native title bodies corporate, the native title holders direct their respective registered native title bodies corporate to enter into the section 21 agreements.

18.    The execution of the Deed of Agreement to which this determination is a Schedule constitutes an irrevocable direction by each of the Applicants to their respective registered native title bodies corporate to execute the section 21 agreement within twenty-one (21) days of all of the prescribed bodies corporate being registered under section 193 of the [Native Title Act] as registered native title bodies corporate.

19.    The section 21 agreements will commence to operate upon the making of the Determination (whether those section 21 agreements are executed or not).

11    The present application arises primarily out of these limitations upon the exercise of native title rights and interests. Clause 17 requires the native title holders to direct their registered native title bodies corporate to enter into various agreements relating to such limitations. Those bodies corporate were to be the prescribed bodies corporate appointed for the purposes of s 57 of the Native Title Act.

annexure 4 to the schedule

12    Annexure 4 is entitled “Agreement For Interest Regularisation On Native Title Land”. The parties to this agreement were to be the relevant prescribed bodies corporate representing the native title holders, the State and the Council. The recitals effectively recognized that there were aboriginal people living in the Hopevale community who may have been entitled to interests in parts of the DOGIT land pursuant to the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) (the “Land Holding Act”), which interests had not been appropriately recognized. The native title holders acknowledged that it was in the interests of “harmony” that such interests be recognized and regularized. These interests generally involved the rights to occupy and use particular blocks within the boundaries of the DOGIT land. Such interest holders are generally described as “Blockholders”. Under certain State legislation, some or all of them may have been entitled to leases over some or all of the land which each occupied. The desired “harmony” was to be achieved using the provisions of s 21 of the Native Title Act which, at that time, provided:

Agreements to surrender etc. native title

Extent of agreements

21.(1)    Native title holders may, under an agreement with the Commonwealth, a State or a Territory:

(a)    by surrendering their native title rights and interests in relation to land or waters of the Commonwealth, the State or the Territory (as the case may be), extinguish those rights and interests; or

(b)    authorise any future act that will affect their native title.

Agreement to consideration or conditions

(2)    The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law).

Consideration may be freehold grant or other accepted interests

(3)    Without limiting subsection (2), the consideration may be the grant of a freehold estate in any land or any other interests in relation to land, whether statutory or otherwise, that the native title holders may choose to accept.

Regional or local agreements

(4)    Subsection (1) does not prevent agreements mentioned in that subsection being made by native title holders on a regional or local basis.

13    Some Blockholders are also traditional owners, but many are not. Members of the latter group have an historical, but not traditional connection with the DOGIT land, or parts thereof. By virtue of cl 9 of the Schedule to the Deed, the exercise of native title rights and interests was “subject to” rights conferred by the s 21 agreements contemplated in Annexure 4. In effect, it was a condition of the Determination that each Blockholder’s interest be recognized.

14    Paragraphs 2 and 3 of Annexure 4 set out the terms upon which leases were to be offered to the Blockholders in order to regularize their interests. Each Blockholder could then decide whether the offer accurately or sufficiently recognized his or her entitlements under the relevant legislation. In the event that an offer in accordance with Annexure 4 was accepted, it would bind the traditional owners. If a Blockholder did not accept such offer, he or she may have been able to claim compensation or other relief from the State and/or the Council, to the extent that he or she was able to demonstrate a claim pursuant to State legislation. I need not consider the question of enforceability of such rights as against the native title holders and their prescribed bodies corporate.

OTHER ANNEXURES TO THE SCHEDULE

15    Annexure 5 was concerned with protecting the interests of the Far North Queensland Electricity Corporation Limited. Annexure 6 protected the interests of Telstra Corporation Limited. Annexure 7 was designed to protect other infrastructure providers, although they were not identified. The Council may have been one such provider, although its interests were to some extent protected by cl 9(1) of the Schedule.

OUTSTANDING ISSUES

16    Finalization of issues arising out of the Determination has been a lengthy process. By the terms of the Determination, Dhubbi Warra was appointed as the prescribed body corporate to represent the Thuubi clan for the purposes of s 57(2) of the Native Title Act. The Dingaal clan has also appointed its own prescribed body corporate. However the Dingaal clan has no interest in these proceedings. All of the other traditional owner clans are now represented by the second respondent (“Congress”) as their prescribed body corporate. However I note that the Thuubi and the Dingaal clans are entitled to appoint directors of Congress on the same basis as the other clans. For present purposes, Congress and Dhubbi Warra represent the traditional owners of the land with which I am concerned, being a substantial part of the DOGIT land. I shall refer to that part of the DOGIT land as the “DOGIT Part A land”. It is described in an agreement made between Dhubbi Warra, Congress and the persons named as the third, fourth and fifth respondents in these proceedings. I understand that they have not been served with notice of such proceedings. I shall refer to them as “the other respondents”. Section 24BI of the Native Title Act provides for the registration of certain agreements which are described as Indigenous Land Use Agreements or “ILUAs”. The said agreement has been so registered. In these proceedings the applicants seek to establish that the agreement does not satisfy the definition of “ILUA” in the Native Title Act and so should not have been registered. Nonetheless I shall refer to the agreement as the “ILUA”.

17    The Aboriginal Land Act 1991 (Qld) (the “Aboriginal Land Act”) obliged the State to divest the Council of its ownership of the DOGIT Part A land and vest it in a new owner in trust for the benefit of “Aboriginal people particularly concerned with the land and their ancestors and descendants, and under the [Aboriginal Land Act].” I was told that this legislative requirement was prompted by the possible amalgamation of local authorities, including the Council. It was thought that any amalgamated body would not have been a suitable holder of title to such land. The traditional owners were generally agreeable to this change in legal ownership, but there was a dispute as to whether Congress or some other entity should be the owner. The proposed change of ownership was inconsistent with the existence of native title over the relevant land. It was thereafter necessary that the traditional owners consent to the change by execution of an ILUA pursuant to Subdiv 3B of Pt 2 of the Native Title Act. Other outstanding matters were to be dealt with using the same mechanism. Those matters involved:

    “regularization” of the Blockholders’ interests, apparently by the grant of leases;

    protection of the Council’s infrastructure; and

    formalization of the road system,

18    On 13 February 2009 the solicitors for the Council and certain other persons wrote to the Minister for Natural Resources and Water, pointing out that the DOGIT land was transferrable land pursuant to the Aboriginal Land Act and asking that such land be transferred to the Hopevale Foundation Limited (the “Foundation”) as trustee for the benefit of Aboriginal people. The Foundation is a public company limited by guarantee. Its members are persons eligible to reside on the DOGIT land and to vote in elections for Council office-holders. As I have said, other interested parties, including traditional owners and their prescribed bodies corporate favoured a transfer to Congress.

19    The Director General responded on 18 March 2009, pointing out that transferrable land might be granted to a registered native title body corporate (a prescribed body corporate), where a determination had been made that native title exists in relation to all or part of the land. The Director General suggested that a decision in this regard was not imminent, but that he was anxious that the matter be resolved. On 9 May 2009 the Council and others, including the Foundation commenced proceedings in the Supreme Court of Queensland, seeking an order in the form of mandamus, requiring the Minister to perform his or her duty “in accordance with ss 28 and 29 of the Aboriginal Land Act … in the selection and appointment of a grantee of the lands …”, and a further order requiring the Minister to carry out his duty in accordance with ss 27 and 29 of that Act by directing the preparation of an appropriate deed of grant. These proceedings were apparently not prosecuted with any great enthusiasm.

20    On 25 February 2011 the Crown Solicitor advised that the Minister intended to advertise the intention to appoint a new grantee over the DOGIT Part A land. A later advertisement disclosed that the Minister intended to appoint Congress as grantee. The Council made representations on behalf of itself, the Foundation and other interested parties, opposing such grant on the basis that it would be “unrepresentative because [Congress] represented only aboriginal people who held native title”. There were other criticisms of the proposal.

21    The ILUA was made on 12 September 2011 and accepted for registration pursuant to the Native Title Act on 30 November 2011. On 8 December 2011 a new deed of grant (the “new DOGIT”) was issued, granting the DOGIT Part A land to Congress to hold upon the trust to which I have referred.

22    Interested parties sought judicial review of the Minister’s decision to grant the new DOGIT to Congress. They were unsuccessful. See the decision of Henry J dated 17 May 2012 (Gibson & Ors v The Minister for Finance, Natural Resources and the Arts & Anor [2012] QSC 132).

THE ILUA

23    The parties to the ILUA are Dhubbi Warra, Congress and the other respondents, Messrs Francis Deemal, Victor Gibson and Brian Cobus. The other respondents are Blockholders and are to be offered leases pursuant to the ILUA. However there are many other Blockholders who are also to be offered leases but who are not parties to the ILUA. The Council is to be offered leases but is also not a party to the ILUA.

24    In the ILUA both Dhubbi Warra and Congress warrant to each other and to the other parties that:

    each is the registered native title body corporate and agent for the native title holders of its respective clan or clans;

    it is authorized as agent for those native title holders to enter into the ILUA;

    it has consulted with, and obtained the consent of the native title holders in accordance with the Prescribed Body Corporate Regulations (the “PBC regulations”);

    a document has been prepared evidencing such consultation and consent;

    it has informed the Cape York Land Council Aboriginal Corporation of its intention to enter into the ILUA; and

    it had consulted with that Corporation about such ILUA.

25    In cll 7-10 the parties consent to:

    the transfer of the DOGIT Part A land to Congress (cl 7.1);

    the grant of the council leases (cl 8.1);

    the grant of the Blockholders’ leases (cl 9.1); and

    road regularization (cl 10.1).

26    Pursuant to cl 12 the ILUA was to be registered. Congress was authorized to attend to such registration, all parties undertaking to do all things reasonably necessary in that regard. Clause 13 provided for dispute resolution. Clause 14 provided that, subject to cl 11, any breach would not give to any other party the right to elect to terminate the ILUA. Clause 11 provided that if the State had not transferred the DOGIT Part A within six months of the registration of the agreement, it was to be terminated, in which case the consents given in cll 8-10 were to be treated as having not been given.

OBJECTIONS TO REGISTRATION

27    Section 24BG of the Native Title Act provides that a party to an ILUA may apply to the Registrar of the National Native Title Tribunal (the “Tribunal”) for registration of the ILUA. The Registrar may, and has delegated that function to a delegate. As a preliminary step in that process, notice must be given to certain identified persons or entities, including the relevant local government body. Presumably in response to such notice, the Council raised a number of concerns, but conceded that they did not affect the question of registration. However, the Council also submitted that:

    Mr Deemal did not have authority to represent, or bind the other Blockholders; and

    Clauses 7 and 8 of the ILUA (dealing respectively with consent to the transfer to Congress and the grant of leases to the Council) be “severed” as they were invalid and unenforceable as neither the State nor the Council was a party to the ILUA.

28    Dhubbi Warra responded to these concerns, submitting that they were not relevant to the question of registration. Curiously, in these proceedings Dhubbi Warra seeks to set aside the decision to register the ILUA. A Mr Kempton also submitted, apparently on behalf of the Blockholders, that the ILUA should not be registered. He first submitted that:

    the signatories to the ILUA had no authority to bind the Blockholders generally; and

    they had not been consulted, had not had legal advice and had not agreed to it.

29    Mr Kempton subsequently submitted that:

    several Blockholders and members of Congress were not aware of the full effect of the ILUA;

    Dhubbi Warra was not aware of the ILUA’s effect and had not received independent legal advice;

    Congress was aware that the Blockholders had legal representation but had not informed the legal representative regarding the execution and application for registration of the ILUA;

    Erica Deeral, a director of Congress and a witness, who signed on page 12 of the ILUA, had a conflict of interest; and

    the ILUA was entered into in bad faith.

The delegate dismissed these matters as being irrelevant to the question of registration. The delegate is the first respondent to these proceedings and has indicated that he will abide the order of the Court. He considered that two other matters raised by Mr Kempton were also irrelevant to the question of registration but, nonetheless, worthy of some discussion. They were that:

    certificates under reg 9 of the PBC regulations were irregular; and

     all Blockholders should have received notice of the ILUA prior to registration.

30    Pursuant to legislative and regulatory provisions to which I shall refer at a later stage, certain documents had to accompany the application for registration. The documents were to be signed by native title holders, certifying compliance with requirements as to consultation with native title holders concerning proposed actions inconsistent with native title, and that the native title holders had consented to such actions. The delegate had considered the relevant certificates prior to notification and concluded that they were valid. His reasons for that conclusion appear as Attachment A to his reasons for accepting the ILUA for registration. The irregularities identified by the delegate were that:

    some persons had signed twice; and

    some persons named in the certificates had not signed.

31    In his reasons, the delegate explained that he had ensured that the requisite number of qualified persons had signed.

32    As to the question of notice to Blockholders, the delegate noted that s 24BH(1)(e) required that notice be given to “any other person whom the Registrar … considers appropriate”. The delegate had decided that as the Blockholders were not bound by the ILUA, it was not appropriate that they be given notice. The delegate had, however, given notice to Mr Kempton. Mr Kempton also submitted that:

    the ILUA did not comply with Pt 2 Subdiv 3B of the Native Title Act; and

    the other respondents had signed the ILUA on behalf of the Blockholders without their consent.

33    Mr Kempton provided no details concerning the alleged non-compliance with the Native Title Act. Hence the delegate did not consider that submission. However, the delegate addressed the following issues:

    whether the ILUA was an ILUA within the meaning of the Native Title Act (ss 24BB to 24BE);

    whether the Blockholders were parties to the ILUA (s 24BI(2)); and

    whether a representative Aboriginal/Torres Strait Islander body had advised that requirements of the Native Title Act had not been met (s 24BI(3)).

34    As to compliance with ss 24BB to 24BE of the Native Title Act, the relevant concern appears to have been that although cll 7 and 8 of the ILUA dealt with future acts involving the State and the Council, neither was a party to it. The submission seems to have been that an entity which was to perform a future act consented to by the native title holders in an ILUA was a necessary party to it. The delegate rejected that proposition. Section 24BB requires only that the ILUA be “about” the doing of a particular future act or class of future acts. Section 24BD requires that certain persons or entities be parties to an ILUA but does not require that any person or entity who or which may perform such act, or be associated with it, be a party. The delegate considered that an ILUA between or amongst parties other than such “actors”, was capable of registration.

35    As to the second matter, s 24BI(2) provides that the Registrar may not register an ILUA if any of the parties advises that such party does not wish it to be registered. Mr Kempton submitted that the Blockholders were parties who did not wish that the ILUA be registered. Mr Kempton submitted that the other respondents had purported to execute the ILUA on behalf of all Blockholders. The delegate accepted that Blockholders who were also traditional owners would, in that capacity be bound by the agreement by virtue of Congress’s actions or those of Dhubbi Warra. However he concluded that the Blockholders other than the other respondents were not, as Blockholders parties to the ILUA. In other words, the other respondents had not purported to execute the ILUA on behalf of other Blockholders.

36    Finally, the delegate concluded that the relevant representative body had been notified of the proposed ILUA but had not advised of any failure to satisfy the requirements of s 24BD(4)(a). Thus s 24BI(3) was not engaged.

37    The delegate concluded that the ILUA should be registered.

THE APPLICATION FOR JUDICIAL REVIEW

38    The applicants seek review of the delegate’s decision pursuant to s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”). Section 5(1) provides:

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)    that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)    that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)    that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)    that the decision was induced or affected by fraud;

(h)    that there was no evidence or other material to justify the making of the decision;

(j)    that the decision was otherwise contrary to law.

39    As I understand it, the applicants rely upon ss 5(1)(b) and 5(1)(c).

40    The first applicant, Russell Kurt Gibson, is a common law holder of native title and is also a Blockholder. The second applicant is the Council. The third applicant is Dhubbi Warra, a party to the agreement. The respondents are the delegate (who will abide the order of the Court), Congress and Messrs Deemal, Gibson and Cobus, the other respondents. The grounds of the application appear at paras 36 and 37 of the applicants’ consolidated submissions which were filed on 25 June 2012, after the hearing. The applicants assert that the delegate did not have jurisdiction to register the agreement because:

    the ILUA was not an ILUA as that term is defined in the Native Title Act; and

    a procedural requirement was not observed in that the process of decision-making under Aboriginal traditional law and custom required that the elders of the clan group be consulted, and a meeting of the clan group be held to consent to the decision, which procedure was not followed.

41    These grounds seem to assert want of jurisdiction and so to fall within s 5(1)(c) of the ADJR Act. However at para 66 of the submissions, the applicants purport to rely upon s 5(1)(b).

STANDING

42    The respondents challenge the standing of each applicant. Section 5(1) requires that an applicant be a “person who is aggrieved by the relevant decision”. The first applicant’s concern appears to be the assertion that Messrs Deemal, Gibson and Cobus had no authority to enter into the ILUA on his behalf. However that assertion was not pursued before me. The applicants now seem to accept that the Blockholders were not parties to it. Indeed, they now submit that because the Blockholders were not parties, the ILUA does not satisfy the requirements of ss 24BB to 24BE.

43    If the first applicant, as a Blockholder, is not bound by the ILUA, then he has no standing to challenge the validity of its registration. However, as a traditional owner, he may be aggrieved by the decision to register it if it was not capable of registration. Such registration may adversely affect his native title rights and interests. That ground was pursued before the delegate and is pursued in the present proceedings, although the form of the argument may have changed to some extent. It might also be argued that in these proceedings, the first applicant is represented by Congress, and that he cannot otherwise be heard. As much was suggested in argument by the respondents, but the submission was not developed in detail. I am inclined to proceed on the assumption that, as a traditional owner, he has standing to challenge the registration of the ILUA on the ground that it does not satisfy the requirements of ss 24BB to 24BE.

44    The second ground, concerning consultation and consent poses different problems. It concerns only the Dharrpa clan of which the first applicant is not a member. The alleged failure to consult with and obtain the consent of the Dharrpa clan may, however, affect the validity of the ILUA, although that issue was not raised before the delegate. Nonetheless it may be as well that the first applicant be heard concerning that matter.

45    As to the Council, it is not bound by the ILUA, and so cannot be aggrieved by the decision to register it. The applicants submit that it has an interest in having the benefit of the leases contemplated by the ILUA. However the ILUA merely authorizes Congress to grant certain leases to the Council. It does not confer any right, or impose any obligation upon the Council. I do not consider that it has standing to bring these proceedings. It is not necessary that I consider whether the Council could be joined pursuant to s 12 of the ADJR Act.

46    Dhubbi Warra’s position is difficult to understand. It is a party to the ILUA and apparently provided submissions in answer to the submissions opposing registration. It was obliged by the terms of the ILUA to facilitate its registration. It is difficult to see why I should allow it to breach its contractual obligations in the face of the Court, or how it can be a party aggrieved by a decision which it apparently supported. Nonetheless, it may be arguable that it has an interest in establishing that, unbeknown to it, there was a fatal irregularity in the process by which the ILUA was made.

47    In my view the first applicant and Dhubbi Warra have standing to seek review pursuant to the ADJR Act.

DOES THE ILUA COMPLY WITH S 24BA?

48    Pursuant to s 24BA of the Native Title Act, an agreement will be an ILUA if it satisfies the requirements of ss 24BB to 24BE. The applicants do not expressly assert non-compliance with any of those provisions. Rather, they submit that the ILUA is not an agreement for the purposes of s 24BI(1) of the Native Title Act. That section provides:

Subject to this section, the Registrar must register the agreement on the Register of Indigenous Land Use Agreements.

49    The other subsections deal with procedural requirements. I do not understand the applicants to suggest non-compliance with any of those matters. Rather the applicants’ submission seems to be that ss 24BB to 24BE identify only the “nature of the type of agreement that can constitute an ILUA”. It is then submitted that any such agreement must also satisfy other criteria which may concern its “structure”. It is submitted that an ILUA may not be a “declaratory statement by one party indicating what type of acts are permitted unless there is certainty as to what is agreed and who is permitted to do such acts”. Section 24BB(a) may be inconsistent with this submission to the extent that it provides for the authorization of future acts included in a class. Further, the submission would exclude the possibility of a general approval of an act or class of acts, with some matters left for negotiation between the relevant prescribed body corporate and the entity which is to perform the act, even if the prescribed body corporate is expressly authorized so to negotiate. In fact, the submission is unsupported by any provision of the Native Title Act.

50    I see no justification for the assertion that such an approach is essential to the “purpose of the ILUA”. I also see no merit in the submission that any other approach would enable a prescribed body corporate to avoid the obligation to consult and obtain consent. It is said that the applicants’ approach is supported by the fact that the ILUA is to be registered, and that the Native Title Act does not authorize the registration of an ILUA which is not a “binding and concluded agreement”. In the present case this submission is deprived of any significance by the concession made in para 50 of the applicants’ submissions that the ILUA is binding as between the signatories.

51    The submission is really that the “parties who are to be bound by the future acts consented to by the ILUA are necessary parties to it because there must be certainty with regard to what the binding agreement is so that permission can be given for future acts”. The parties to be “bound” by such future acts are the native title holders who, in this case, are represented by Congress and Dhubbi Warra. Those corporations are also bound, as are the other respondents. The Council and the other Blockholders are to have opportunities to accept the leases consented to in the ILUA, however they are not bound to do so. They are not bound by the ILUA. This aspect of the applicants’ submissions seems to be completely misconceived. If the submission is that the parties who, or which are to perform the future acts must be parties to the ILUA, then it is completely unsupported by any provision of the Native Title Act. Section 24BD suggests that only the relevant registered native title bodies corporate and, in some cases the Commonwealth, a State or Territory must be parties to an ILUA. Other persons may be parties. Further, the submission implicitly asserts that a prescribed body corporate cannot be authorized to negotiate aspects of a proposed future act, even within strict guidelines. It also excludes the use of an ILUA to record agreement as to future acts between interested prescribed bodies corporate on behalf of traditional owners. Such an approach would limit the utility of the ILUA process as prescribed in the Native Title Act notwithstanding the absence of any justification in the Act for such limitation.

52    It may well be that the Native Title Act contemplates an ILUA being a binding contract for consideration, rather than a non-contractual “arrangement”. However I see no reason for concluding that the mutual promises contained in this ILUA do not constitute consideration, or that the agreement is not binding as amongst the parties to it. In fact, it was executed as a deed. As to uncertainty, the operative effect of the ILUA is to record the consent of the native title holders to future acts, including acts which have not yet been performed. It may, in the future, be necessary to consider the terms of the ILUA in order to see whether a specific future act falls within the consent recorded by it. However there is no good reason for addressing the ambit of such consent in advance of any need to do so.

53    The applicants submit that there is some uncertainty about the terms of the leases to be granted. However, at worst, the ILUA should be construed as leaving that question in the discretion of Congress as owner of the land. If it does not agree the terms with any proposed lessee, then there will be no lease. It does not follow that the ILUA is itself uncertain. The argument as to uncertainty appears to have its roots in cases decided prior to the decision of the High Court in Meehan v Jones (1982) 149 CLR 571. Since that decision contract law in Australia has been mercifully free of arguments about uncertainty.

54    The applicants then submit that some of the land included in some of the proposed leases to Blockholders is land in respect of which Native Title has been extinguished. The applicants submit that the matters prescribed in s 24BB are the only matters which may be included in an ILUA, and that the present ILUA therefore:

… purports to impermissibly include agreement about matters that do not concern native title rights and interests in that it includes blockholder leases on areas of land over which native title has been extinguished. It therefore does not meet the requirement in s. 24BB of the [Native Title Act] that it be an agreement about matters that concern native title rights and interests.

55    It is said to follow that the agreement is incapable of registration.

56    Section 24BB does not, in terms, require that an ILUA deal only with native title rights and interests. The ILUA need only be “about one or more of the following matters in relation to an area”. Registration has effect only in relationship to future acts affecting native title rights and interests. I see no reason for concluding that an agreement may not be registered simply because it deals with other matters. There are, however, a number of other answers to this submission. First, the provision that each lease be “substantially in the form of the lease in Schedule 5” is wide enough to permit the grant of a lease excluding land which is not owned by Congress, and over which it cannot therefore grant a lease. Alternatively, if a lease includes non-native title land which is vested in Congress, then it may lease it without regard to the Native Title Act. Further, cl 3.1 provides that:

This Agreement relates to the Agreement Area. To the extent there is any inconsistency between the written description of the Agreement Area and the map both shown at Schedule 6, the written description prevails.

57    The term “Agreement Area” is defined to mean “the part of the DOGIT shown in the description and map at Schedule 6”. Further, the definition of the term “Blockholders’ tenures” suggests a certain degree of flexibility concerning the boundaries. The ILUA should probably be read as relating only to land identified as being the land vested in Congress and over which native title exists. In any event, that difficulties may arise in granting any of the contemplated leases is not a basis for characterizing the agreement as being other than about the matters identified in s 24BB. There is nothing in this point.

58    Finally, in respect of this ground, it is said that Congress as a trustee may not fetter the exercise of its discretion. It is then said that:

A trustee may not bind itself to a future exercise of a trust in a particular manner which is determined by considerations other than its own conscientious judgment at that future time regarding what is in the best interests of the Trust.

59    It is said to follow that:

Congress as trustee of the new DOGIT must not fetter itself with respect to the future discharge of its functions and the exercise of its discretion with regard to the grant of Council and Blockholders leases. As trustee, it must exercise its powers appositely in point of time, that is, “at the time”, at “ad hoc with reference to the particular transaction” and with reference to what is “proposed at the moment”.

60    The submission seems to be that Congress could not, by entering into the ILUA, bind itself to grant to the Council and the Blockholders the leases contemplated by that document. This matter was not raised in the submissions made to the delegate. Thus it is difficult to see how the applicants can be aggrieved by the decision in this respect. In any event the submission is fundamentally flawed. First, it is not clear to me that Congress is bound to grant the leases contemplated by the ILUA. Assuming that it is so bound, the submission is flawed because it implicitly assumes that a trustee cannot commit itself, in that capacity, to act in the future, in a particular way which, in the trustee’s view, at the time of such commitment, is in the best interests of the trust. In effect, the submission implies that a trustee cannot sign a contract for sale or an agreement for lease which is to be performed at a later date. That proposition is clearly wrong. A trustee must act in accordance with its view as to the best interests of the trust, but such view may lead it to commit itself as to particular transactions which will involve performance at a later stage.

61    I do not discount the possibility that Congress, in its capacity as a prescribed body corporate for the purposes of ss 57 and 58 of the Native Title Act may, at some time in the future experience difficulties involving conflicts of interests in discharging the duties conferred upon it by the new Deed of Grant, which duties involve the interests of a group, the composition of which is not the same as that of the body of traditional owners. That is a different question. It does not presently arise.

CONSULTATION AND CONSENT

62    Where native title is not to be held in trust for the native title owners, s 57(2) of the Native Title Act requires that the Court appoint a prescribed body corporate to perform the functions identified in s 57(3) which are:

    any function given to a registered native title body by the Native Title Act; and

    any function given to it by regulations.

63    Pursuant to s 24BD such bodies may be parties to an ILUA. Regulations have been made pursuant to s 58. For present purposes, the Native Title (Prescribed Bodies Corporate) Regulations (1999) (the “PBC regulations”) and the Native Title (Indigenous Land Use Agreements) Regulations 1999 (the “ILUA regulations”) are relevant.

64    Section 58 provides:

58    Functions under regulations

The regulations may make provision for a registered native title body corporate to do all or any of the following:

(a)    if it does not hold the native title on trust under section 56, or regulations made for the purposes of that section - to act as agent or representative of the common law holders in respect of matters relating to the native title;

(b)    to perform in a specified way any functions in relation to the native title given to it under other provisions of this Act;

(c)    to hold on trust, or perform functions in relation to, compensation under this Act for acts affecting the native title;

(d)    to consult with, and act in accordance with the directions of, the common law holders in performing any of its functions;

(e)    if it does not hold the native title on trust - to enter into agreements in relation to the native title that are binding on the common law holders, provided the agreements have been made in accordance with processes set out in the regulations;

(f)    to perform any other functions in relation to the native title.

65    Regulations 7, 8, 9 of the PBC regulations provide:

7     Functions of registered native title body corporate not acting as trustee (Act s 57)

(1)    For paragraph 57 (3) (b) of the Act, if a prescribed body corporate that does not hold native title rights and interests in trust for the common law holders of the rights and interests becomes a registered native title body corporate, the body corporate has the following functions:

(a)    to act as agent or representative of the common law holders in         respect of matters relating to those rights and interests;

(b)    to manage the rights and interests of the common law holders as         authorised by the common law holders;

(c)    to hold money (including payments received as compensation or     otherwise related to the native title rights and interests) in trust;

(d)    to invest or otherwise apply money held in trust as directed by the common law holders;

(e)    to consult with the common law holders in accordance with regulation 8;

(f)    to perform any other function relating to those rights and interests as directed by the common law holders.

(2)    Without limiting subregulation (1), in order to perform its functions, a prescribed body corporate may, on behalf of the common law holders:

(a)    consult other persons or bodies; and

(b)    enter into agreements; and

(c)    exercise procedural rights; and

(d)    accept notices required by any law of the Commonwealth, a State or a Territory to be given to the common law holders.

Note    A prescribed body corporate acting as agent or representative of the common law holders is also subject to r 8, 9 and 10.

8    Consultation with, and consent of, common law holders

(1)    In this regulation:

native title decision means a decision:

(a)    to surrender native title rights and interests in relation to land or waters; or

(b)    to do, or agree to do, any other act that would affect the native title rights or interests of the common law holders.

(2)    A prescribed body corporate acting as trustee for, or agent or representative of, common law holders of native title rights and interests must consult with, and obtain the consent of, the common law holders in accordance with this regulation before making a native title decision.

(3)    The prescribed body corporate must ensure that the common law holders understand the purpose and nature of a proposed native title decision by:

(a)    consulting, and considering the views of, a representative body for the area that includes the land or waters to which the proposed decision relates; and

(b)    if the prescribed body corporate considers it to be appropriate and practicable - giving notice of those views to the common law holders.

(4)    If there is a particular process of decision-making that, under the Aboriginal or Torres Strait Islander traditional laws and customs of the common law holders, must be followed in relation to the giving of the consent mentioned in subregulation (2), the consent must be given in accordance with that process.

(5)    If subregulation (4) does not apply, the consent must be given by the common law holders in accordance with the process of decision-making agreed to, or adopted, by them for the proposed native title decision, or for decisions of the same kind as that decision.

(6)    If the prescribed body corporate acts as trustee for, or agent or representative of, more than 1 group of common law holders, the body corporate must consult with, and obtain the consent of, only those groups of common law holders whose native title rights or interests would be affected by the proposed native title decision.

(7)    An agreement that gives effect to a native title decision of a prescribed body corporate has no effect to the extent that it applies to the decision, if the body corporate does not comply with this regulation.

(8)    Subregulation (7) does not apply in relation to an indigenous land use agreement of a kind described in section 24EB or 24EBA of the Act.

9    Evidence of consultation and consent

(1)    In this regulation:

native title decision has the meaning given in subregulation 8(1).

(2)    Common law holders of native title rights and interests are taken to have been consulted on, and to have consented to, a proposed native title decision of a prescribed body corporate if a document, signed in accordance with subregulation (3) or (4), certifies:

(a)    that the common law holders have been consulted about, and have consented to, the proposed decision; or

(b)    that:

(i)    the proposed decision is of a kind about which the common law holders have been consulted; and

(ii)    the common law holders have decided that decisions of that kind can be made by the body corporate.

(3)    A document mentioned in subregulation (2) is signed in accordance with this subregulation if:

(a)    the document is signed by at least 5 members of the prescribed body corporate; and

(b)    each of the signatories is a common law holder (an affected common law holder) whose native title rights and interests wold be affected by the proposed native title decision.

(4)    However, if there are fewer than 5 members of the prescribed body corporate who are affected common law holders, a document mentioned in subregulation (2) is signed in accordance with this subregulation if:

(a)    the document is signed by at least 5 members of the body corporate; and

(b)    each affected common law holder who is a member of the body corporate signs the document.

(5)        Subregulation 8 (3) is taken to have been complied with if:

(a)    a document, signed by at least 5 members of the prescribed body corporate, certifies that:

(i)    a representative body for the area that includes the land or waters to which the proposed native title decision relates has been consulted about the proposed decision; and

(ii)    the views of the body have been considered in accordance with this regulation; and

(b)    a document is signed by an authorised member of the representative body and certifies that the representative body has been consulted about the proposed native title decision by the body corporate.

66    Section  24BG(2) of the Native Title Act provides that an application for registration of an ILUA must be accompanied by a copy of the relevant agreement “and any other prescribed documents or information”.

67    Regulation 6 of the ILUA regulations provides, in part, as follows:

6    Application for registration of body corporate agreements (Act s 24BG)

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

(2)    The following documents must accompany an application:

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

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

(c)    a complete description of the agreement area;

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

(e)    if:

(i)    the agreement gives effect to a native title decision in an area (the affected area); and

(ii)    for any part of the affected area, there is a representative body that is not a party to the agreement, or no representative body;

a document mentioned in subregulation 9 (2) of the PBC Regulations that relates to the decision.

68    The second ground of review, as particularized in the further amended application, is that the elders of both the Dharrpa and Thuubi clans were not consulted about the decision to enter into an ILUA as required by traditional law and custom, and that no meeting of either clan group was held to consider whether to consent to that decision. In the applicants’ consolidated submissions, however, only the position of the Dharrpa clan is addressed. I proceed upon the basis that both Dhubbi Warra and Congress were obliged to consult with, and obtain the consent of their respective clan groups before entering into the ILUA, and that the evidence of such consultation and consent, as contemplated by reg 9(2) of the PBC regulations had to be provided in support of the application for registration. Such documentary evidence was supplied. The applicants do not challenge its prima facie adequacy. Rather they submit that in the case of the Dharrpa clan, the evidence demonstrates that appropriate consultation did not occur, and that there was no relevant consent. They submit that they may go behind the documentary evidence contemplated by reg 9. At para 66 the applicants seem to submit that this ground falls within s 5(1)(b) of the ADJR Act, rather than s 5(1)(c), notwithstanding the suggestion at para 37 that the matter goes to the jurisdiction of the delegate pursuant to s 5(1)(c).

69    The evidence upon which this ground is based was not before the delegate. Mr Kempton raised issues concerning the state of knowledge of some persons, including Blockholders, members of Congress and Dhubbi Warra. However, as far as I can see, the adequacy of consultation with members of the Dharrpa clan and the question of their consent were not raised.

70    The applicants submit that they are not precluded from raising the matter at this stage, and that there is no rule that evidence not before a decision-maker is inadmissible in judicial review proceedings. They rely upon the decision of Weinberg J in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [454] – [458]. That decision cited the decision of Lockhart J in Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 and that of Sackville J in McCormack v Commissioner of Taxation (2001) 114 FCR 574. The decisions suggest some flexibility concerning the receipt of further evidence in proceedings under the ADJR Act. There is, for example, no doubt that evidence may be led to establish absence of procedural fairness in connection with the decision under review. However such evidence necessarily concerns events associated with the making of that decision rather than evidence which could have been provided to the decision-maker for the purpose of making the decision. Each of the decisions of Lockhart J and that of Sackville J concerned an attempt to lead further evidence regarding an issue which had been at least addressed by the relevant decision-maker. That is not the present case. Both decisions suggest the possibility of leading evidence on an application for review, which evidence goes to jurisdiction or to whether the decision in question could lawfully be made. Weinberg J seems also to have been considering the admissibility of further evidence going to an issue addressed by the decision-maker, but in the context of considering “Wednesbury unreasonableness” which his Honour considered to be a “variant” of lack of jurisdiction. Further, Weinberg J observed at [454] that:

… ordinarily, material not before the decision-maker at the time of the making of the decision will not be admissible in proceedings for judicial review.

71    At this point the question of standing again arises. It is difficult to see why the first applicant, who is not a member of the Dharrpa clan, should be allowed to raise, at this late stage, or at all, questions concerning the adequacy of the process of consultation within that clan, and whether the clan members consented to the acts contemplated by the ILUA. It is also difficult to see why Dhubbi Warra should be allowed to ventilate those issues, given that it was obliged to facilitate registration of the ILUA and made submissions supporting registration.

72    In any event, I consider that this attack on the registration of the ILUA must fail for other reasons.

CONGRESS’s OBLIGATION TO CONSULT AND OBTAIN CONSENT

73    Regulations 7, 8 and 9 of the PBC regulations and reg 6 of the ILUA regulations are parts of a quite complex statutory and regulatory regime. Section 58(b) of the Native Title Act authorizes regulations specifying the way in which a prescribed body corporate may perform certain functions. Regulations 7, 8 and 9 of the PBC regulations seem to be regulations of that kind. The obligation to consult and obtain consent of the traditional owners must be considered in light of the fact that the traditional owners will not necessarily comprise or constitute a formal association with rules and formal structures for decision-making, other than those applicable to the prescribed body corporate itself. For present purposes the relevant decisions were not decisions of prescribed bodies corporate, but rather they were decisions of clan groups which seem to have had no formal structure and rules, save to the extent that they were derived from traditional law and custom. Hence the process of consultation and that of giving consent may appear to be quite informal. No doubt reg 9 was designed to deal with that situation by providing a mechanism for demonstrating that the relevant processes had occurred.

74    To some extent, the certificate contemplated by reg 9(2) may reflect the opinion of a signatory as to whether there has been consultation and consent. The relative informality of the process may result in differences of opinions concerning these matters. If it were open to other traditional owners to dispute such a certificate, the process prescribed by reg 9 would have little purpose. It may be that the involvement of the prescribed body corporate and, in many cases, a representative Aboriginal/Torres Strait Islander body was thought to be likely to minimize the risk that some traditional owners might falsely sign reg 9(2) certificates.  Regulations 7, 8 and 9 provide an integrated scheme for consultation and consent and proof thereof. The functions conferred upon a prescribed body corporate by Pt 2 Subdiv 3B are to be performed in accordance with regulations made pursuant to s 58(b). For present purposes the “specified way” is set out in regs 7, 8 and 9. In my view, in the absence of fraud, the prescribed body corporate has fulfilled the requirements of those regulations if it is able to obtain the certificates contemplated by reg 9. In the absence of fraud, the requirement contained in s 24BG(2) and as prescribed in reg 6(2) of the ILUA regulations is satisfied by the supply of the relevant certificates. The Registrar or delegate cannot go behind the certificates. The only bases upon which such person may refuse to register an ILUA are set out in s 24BI. Nonetheless it is conceivable that a court might, in the event of fraud, set such certificates aside.

75    In my view, the delegate was obliged to act on the reg 9(2) documents which were provided to him. He had no reason to go behind them. If the provision of those documents was a necessary step in enlivening the delegate’s jurisdiction, it was taken. No question of want of jurisdiction can arise pursuant to s 5(1)(c) of the ADJR Act. As to s 5(1)(b), I do not consider that the steps contemplated by regs 7, 8 and 9 of the PBC regulations are procedures required by law to be observed in connection with the making of the delegate’s decision. The relevant requirement is provision of the prescribed documents with the application for registration and the agreement. The procedure contemplated by regs 7, 8 and 9 was incidental to Congress’s decision to enter into the ILUA, not to the delegate’s decision to register it. The procedures contemplated by s 5(1)(b) are those concerned with registration of the ILUA, once it is made. Even if that view is erroneous, the steps contemplated by regs 7, 8 and 9 were taken.

76    I should deal with two other submissions made by the applicants. First, I see no reason why the words “taken to have been” should be construed as meaning something less than the word “deemed”. Second, to the extent that the applicants rely upon the risk of fraud in connection with documents purportedly made pursuant to reg 9(2), s 5(1)(g) of the ADJR Act offers a basis for relief. The applicants have not alleged fraud.

EVIDENCE OF CONSULTATION AND CONSENT

77    Although it is not strictly necessary that I do so, I should say something about the evidence concerning consultation and consent. The applicants rely primarily upon the evidence of Desmond Charles Bowen who is the senior Dharrpa elder and chair of the Dharrpa Land Trust. The Dharrpa Land Trust is, however, of no relevance for present purposes. He is also the Deputy Chair of Congress. Mr Bowen says that he was not invited to the meeting of Congress held on 12 September 2011 at which the decision to enter into the ILUA was taken. It is, I think, common ground that Mr Bowen did not attend that meeting.

78    Concerning the reg 9(2) certificates, Mr Bowen says that the persons who signed the document were not members of the executive of the Dharrpa Land Trust. This fact has no present significance. He also claims that three of the signatories Cynthia Deeral, Rosemary Gordon and Erica Deeral “normally identify themselves as members of the Gamaay clan”. This may be so, but they are also members of the Dharrpa clan.

79    Mr Bowen claims that it is against traditional custom and usage for elders such as himself not to be consulted in the clan decision-making process, and that it is inappropriate for young people such as Judith Bowen, Latoia Woibo and Kerry Woibo to purport to represent the clan without authority. The latter proposition is based upon a misunderstanding of the reg 9(2) certificates. Mr Bowen assumes that the signatories, in some way, purported to represent the clan without authority. He asserts that there was no meeting of the clan “as whole” to ratify the certificates. He also asserts that the clan group was not given an opportunity to “consider let alone consent, to the Native Title decision”.

80    Mr Bowen submits that Congress did not comply with cl 7.12 of its own rules dealing with consultation and consent nor with cl 7.4, dealing with the requirements for notice of a proposed general meeting. He asserts that pursuant to cl 7.7.1 the meeting of 12 September 2011 lacked a quorum. He claims that the required quorum was that 11 of the 13 clans be represented at any meeting. In fact only nine clans were represented at the meeting of 12 September 2011. As Deputy Chairman of Congress Mr Bowen is concerned about the way in which that corporation is being run. He claims that meetings are only occasionally notified, and not as a matter of course. He believes that this course has been adopted deliberately, in order to manipulate the outcomes. Mr Bowen seems to have asserted that he has only attended two meetings of Congress, both early in 2010.

81    In cross-examination, counsel suggested to Mr Bowen that he had attended more than two meetings. The minutes of various meetings suggest that this is the case. He agreed that he had attended at least one meeting at which the question of granting leases to Blockholders was discussed. He also agreed that he had attended a meeting on 7 June 2011. Although there are no minutes of that meeting, an account of proceedings appears in the June newsletter published by Congress. Mr Bowen said that he had not received any Congress newsletters. He said that on 7 June, he left the meeting early and “didn’t enter into any discussions”. However he recalled that there had been discussion about the proposed ILUA. He agreed that at the meeting, two officers of the State government, Jan Bradley and Alan Jones were present. They said that the State wanted to make sure that there was a solution to the Blockholder issue. They also said that the State wished to ensure that there was security for the Council’s infrastructure, and that the roads were “regularized”, apparently meaning that roads shown on maps co-incided with the locations of those roads on the ground.

82    Mr Bowen did not recall a suggestion that the State wanted to deal with these matters by way of an ILUA pursuant to which Dhubbi Warra and Congress would agree to do certain things to solve the problems. He recalled that each clan was to consider whether leases of land within clan areas should be granted to Blockholders.

83    He agreed that at a meeting of the Dharrpa Land Trust held on 8 March 2011, he asked that he and Gary Bowen be granted a lease over certain Dharrpa land. It seems that he and his wife occupied a block which was in Gamaay country. It had been suggested that in lieu of that block, he and Gary Bowen should lease a block in Dharrpa country. Others attending the meeting said that the matter was not the business of the Dharrpa Land Trust. It was referred to a later clan meeting.

84    On 8 June 2011 there was a meeting of the clan to discuss the proposed lease to Messrs Bowen. They were asked to leave the room while the matter was discussed. When they returned they were told that they could have a lease in the rainforest area. Mr Bowen understood that the clans had to decide which Blockholders would be offered leases. He seems to have associated this process with the proposed ILUA. At the meeting on 8 June 2011 a number of elders were present. They included Ronnie McLean, Beverley Sorrensen, Lex Bowen, Richie Bowen, Neville Bowen and Priscilla Gibson. Mr Bowen agreed that he was away from Hopevale at different times during 2010 and 2011 and that, as a result, he missed a number of Congress meetings, including meetings in September 2011.

85    The applicants also rely on an affidavit of Mr Gregory Raymond McLean, the Manager of the Council. He complains that the Council is not a party to the ILUA, that Congress did not carry out the relevant consultation, or obtain the relevant consent and that the other respondents did not have authority to bind the other blockholders. Thus he adds nothing to the matters raised by Mr Bowen and in the applicants’ submissions. He also exhibits his affidavit and an affidavit of Mr Gibson, both filed in the judicial review proceedings in the Supreme Court, concerning the transfer to Congress. Both affidavits deal with concerns about the grant in favour of Congress, a matter of no present relevance. Mr Gibson has also filed an affidavit in these proceedings, but it raises no other issues and no relevant evidence.

86    Erica Dale Deeral has sworn two affidavits in this matter and was cross-examined. She is a member of the Gamaay clan through her father, and the Dharrpa clan through her mother. She was one of the people who comprised the applicant in the original application for a native title determination. She is a director of Congress, nominated by the Gamaay clan. Ms Deeral disputes many of the factual assertions made by Mr Bowen. In particular she considers that the Dharrpa clan considered and agreed to Congress entering into the ILUA, including the proposed grant of a lease to Messrs Bowen. That is the only proposed Blockholder’s lease affecting Dharrpa land. She says that the clan approved the ILUA and the lease after “a long period of consultation and meetings to consider the issues in the ILUA”. Ms Deeral understood the issues to be:

    the transfer of the DOGIT to Congress;

    the grant of leases to Blockholders;

    the grant of leases to the Council; and

    correcting the public roads “paperwork” for Hopevale so that the roads as they are shown on paper (presumably the gazetted roads) reflect the actual position on the ground.

87    The proposed leases to the Council and the road regularization arrangements did not affect the Dharrpa lands. The only issues which concerned the Dharrpa clan were the transfer of the DOGIT and the proposed lease to Messrs Bowen.

88    Ms Deeral said that she and other members of the Dharrpa clan had been involved in discussions over many years concerning the transfer of the DOGIT. Most of the meetings were arranged by the State government. She said that she had attended dozens, if not hundreds of such meetings. Mr Bowen also attended many of those meetings. In the early years the meetings were well attended and sometimes rowdy, but from about 2004 or 2005, there was more agreement about the transfer. Since 2005 there has been acceptance by her clans and, in her view all of the other clans, that the DOGIT was to be transferred. A question remained as to whether it should be transferred to Congress or to Congress and the Council.

89    In 2006 there was a large “workshop” on the Atherton Tableland, conducted over several days, and attended by many dozens of representatives of the clans, the Council and Blockholders. At the end of the workshop, there was little remaining disagreement amongst the participants as to the course to be followed. Within both the Gamaay and the Dharrpa clans there had “not been a real issue about transferring the land to Congress for many years.” When the Minister advertised the intention to transfer the land to Congress there was no objection, but rather support for the proposal. From the Dharrpa clan’s point of view, the only remaining issue was the request by Messrs Bowen for a lease.

90    There were a number of discussions amongst the Dharrpa families concerning the proposed lease, most of which meetings were informal. There was a special general meeting of the Dharrpa Land Trust on 8 March 2011, attended by representatives of the three family groups within the Dharrpa clan, including Mr Bowen. He chaired the meeting. At one stage, he asked the meeting to consider his and Mr Gary Bowen’s application for a lease. The meeting agreed to discuss the proposal after the end of the Land Trust meeting. It was so discussed, but no agreement was reached. It was agreed that it be discussed at a subsequent clan meeting. The minutes of the special general meeting of the Dharrpa Land Trust conclude with the minutes of a Dharrpa clan meeting. The minutes read as follows:

Alan gave an overview of the Blockholder process and transfer of Hopevale DOGIT. The Dharrpa People asked Alan, Joanne and Des to leave the room whilst they discussed the lease application. Alan and Joanne were advised further consultation was needed with the family groups before a decision could be made and the Dharrpa clan would reconvene on 30 March 2011.

91    Thus it seems that the Blockholders’ leases and the transfer of the DOGIT were treated as being connected. No meeting occurred on 30 March 2011. A further meeting of the Dharrpa clan was held on 8 June 2011, following a meeting of the Congress directors on 7 June. The clan meeting was well attended. Many Dharrpa elders were there. Mr Des Bowen and Mr Gary Bowen were asked to leave the meeting whilst their application for a lease was discussed. It was agreed that the lease would be granted to them as part of the ILUA. At neither the meeting of 8 March nor the meeting of 8 June did Mr Bowen complain or raise any objection concerning the proposed ILUA.

92    Ms Deeral says that decisions affecting Dharrpa land are made by the elders. At the meeting on 8 June 2011, the elders, except for Mr Des Bowen, considered and agreed to the proposed lease. Other elders in attendance included Ronnie McLean, Beverley Sorrensen, Lex Bowen, Richie Bowen, Neville Bowen and Priscilla Gibson. Ms Deeral says that by June 2011 the State’s intention to transfer the land to Congress had been advertised. For this reason at the meeting on 8 June, little time was spent in discussing the transfer of the DOGIT. It was a matter that had already been agreed to by the clan and was considered a necessary part of the process.

93    Ms Deeral disputes Mr Bowen’s suggestion that notices of meetings of Congress are routinely not given. She says that the date of each meeting is fixed at the end of the preceding meeting and is confirmed by notices placed on community notice boards and by letters.

94    In cross-examination Ms Deeral said that at the meeting on 8 June 2011 copies of the ILUA were provided to those attending and a resolution was passed concerning the proposed lease. She agreed that the signing of a reg 9(2) document was not discussed at the meeting.

95    Brian Neil Cobus is a Nguurruumungu man and is Chairman of Congress. He was authorized by Congress to make his affidavit. He says that there are 12 directors of Congress, each nominated by one of the 12 clans. Each director has an “alternate” who may attend directors’ meetings instead of the director. Native title decisions cannot be made affecting land without the authority of the relevant clan. This evidence seems to be inconsistent with the Congress rules which provide for 13 directors. See r 8.1.3. The documents suggest that there is no director appointed for the Buurnga clan. There is no express explanation for this. However I note that when the Deed was executed, execution on behalf of the Buurnga People was by five people who had also signed on behalf of five other clans. Thus it may be that the Buurnga People all also belong to other clans. In any event, the matter is of no present importance.

96    Mr Cobus says that Congress consulted widely for many years before entering into the ILUA. Discussions, consultations and negotiations commenced as far back as 1997, effectively at the time of the Determination. The topics which were discussed included the transfer of the DOGIT land, security for Blockholders, security for Council infrastructure and road regularization, meaning that the roads which existed on the ground were to be shown “on paper”. Neither the security of Council infrastructure, nor the regularization of roads was contentious for Congress or for the native title clan groups. They were anxious to have functioning public infrastructure and good roads. In his affidavit Mr Cobus gives a brief history of the negotiations with the Blockholders which resulted in the arrangements set out in the ILUA. The regularization of roads arose fairly late in the piece.

97    Mr Cobus says that Congress has had difficulties in its operations because of lack of resources. It has sought to have regular directors’ meetings, generally every month or every two months. Such meetings are well advertised, usually in the minutes of the previous meetings, in newsletters and notices on notice boards. Directors are also notified of meetings by telephone or personal communication. Mr Cobus exhibits minutes of numerous meetings between February 2010 and September 2011. The minutes frequently do not indicate whether the meeting in question was a meeting of directors or a general meeting. However the numbers of persons attending and their identities give a fairly clear indication as to the body in question. Mr Cobus also exhibits an attendance list for a meeting on 7 June which, he says, was a meeting of the directors, and newsletters for February, March, April, May, June, July, September and October 2011. The newsletters are sent by post to all members of Congress.

98    In 2011 it was expected that there would be a lot of work to be done in order to finalise the ILUA, and so, early in the year, it was decided that there would be meetings on the first Tuesday of each month. This proposal was set out clearly in the newsletter for February 2011. For most of the year, meetings were held on the first Tuesday of each month. However in the middle of the year, meetings were held more frequently. Mr Bowen did not attend many Congress meetings in 2011, although Mr Cobus personally advised him of several proposed meetings. On occasions his alternate, Priscilla Gibson attended in his place. Mr Bowen was given the same notice as other directors.

99    That the meeting on 12 September 2011 was a meeting of directors, and not a general meeting is relevant to Mr Bowen’s complaint that there was no quorum at that meeting. Mr Cobus says that the quorum for a meeting of directors is half of the directors. However rule 11.3 provides that a majority of the directors will constitute a quorum. Mr Bowen has not suggested that fewer than a majority of the directors attended the meeting. Mr Bowen seems to have assumed that the meeting was a general meeting. Mr Cobus says that it was a meeting of directors. The minutes seem to support Mr Cobus’s view. He attended and Mr Bowen did not. I accept Mr Cobus’s evidence. Mr Bowen’s complaint concerning the alleged absence of a quorum at that meeting is misconceived.

100    In May, meetings of the clans were organized in order to obtain consent to the proposed leases to Blockholders and the Council. Notice was given in the May and June newsletters. In the June newsletter there was also a summary of the Hopevale ILUA. It seems that the same information had been put before the directors’ meeting on the previous day. The July 2011 newsletter confirmed that clan groups had been consulted, and that the Dhubbi Warra had not yet completed its decision-making process.

101    Ms Bradley also gave evidence. She is the Manager, Aboriginal and Torres Strait Islander Land Acts Branch of the Department of Natural Resources and Mines. She was closely involved in the negotiation of the ILUA and the transfer of the DOGIT land. In particular she attended the meeting of the Dharrpa clan on 8 June 2011 at which the proposed lease to Mr Bowen and Gary Bowen was discussed. The meeting was well attended, went for about two hours and involved “robust discussion”. During the meeting the mapped area of the proposed lease was changed. After that change the various State Government officers were asked to leave the meeting, as were Messrs Bowen. After some time they were invited back into the meeting and told that the clan members had agreed to grant the lease in accordance with the changed mapping.

102    I should say something about the evidence concerning meetings of Congress and its directors. There are minutes of a meeting on 4 February 2010 attended by Mr Bowen. At the meeting Mr Neal, a solicitor reported concerning legal proceedings against the Minister. As I understand it, those proceedings were brought by the Council to compel the Minister to exercise the power to transfer ownership of the DOGIT land. Mr Neal also provided an update concerning the proposed transfer of the DOGIT land, including reference to the publication of a notice in the Cairns Post. The leases to the Council and the Blockholders were discussed. The minutes note that:

There is concern that Blockholders’ interests should be properly protected in any transfer. There was also concern that while the people attending the meeting may have a good idea about what is proposed, others may not. A newsletter was proposed to set out Congress’ position, so it could be circulated widely in the community.

103    The next meeting was held on 9 February 2010. Mr Bowen did not attend. The Blockholders’ interests were again discussed. By this time the intention to transfer the DOGIT land had been advertised. A copy of the advertisement was tabled. The question of Council and State infrastructure was also discussed. A newsletter was approved for printing and distribution. In that newsletter the advertisement of the proposed transfer was noted, as was the Minister’s proposal to transfer the land to Congress. In paras 2, 3 and 4 it is stated that:

2.    Once the land is transferred to Congress, we will make sure that we own the land for all of the Aboriginal residents of Hopevale, including people who have traditional and historical ties to our home.

3.    Congress has been negotiating with Blockholders for many years and strongly supports Blockholders getting secure leases. Congress wants an agreement (an Indigenous Land Use Agreement or ILUA) to be in place before the DOGIT is transferred. It should include a guaranteed right for all Blockholders listed in the agreement to get a lease. Congress sees this as very important. Congress does not think that it would be fair for the land to be transferred to Congress without Blockholders’ interests being fully taken into account.

4.    The lawyer David Kempton is representing Blockholders. Congress encourages every Blockholder who wants a lease, to give their lease details to Mr Kempton. That way, the list of Blockholders included in the agreement will be complete.

104    A further meeting was held on 2 March. Judging by the number of persons attending, the meeting was a general meeting of Congress rather than a meeting of directors. Mr Bowen did not attend. The meeting noted that the Minister had advertised the intention to appoint Congress as grantee of the proposed new DOGIT. The competing claim by the Hopevale Foundation was also noted. It was said that the Blockholders’ areas needed to be agreed by the end of March so that survey work could commence in April. There was to be a Blockholders’ meeting on 9 and 10 March. At one stage it was suggested that the absence of agreement with the Blockholders might delay the making of the ILUA, and that perhaps the transfer should proceed, leaving the Blockholders’ interests to be regularized after the transfer. Ms Bradley pointed out that pursuant to the Determination, the rights of the Blockholders had to be recognized. The proposed leases of Council infrastructure were also raised. It was agreed that a meeting be held in the following week to ratify the relevant areas as far as was possible.

105    At a meeting held on 3 August 2010 attended by Mr Bowen, there was an “update” on the transfer of the DOGIT. The members record that Congress hoped to enter into an ILUA in about late September 2010, with public notices to be issued in late August. The ILUA was to include an offer to grant leases to those Blockholders whose leases had been agreed to by the relevant clan groups. The ILUA would include a list of proposed lessees and proposed lease areas, as well as a final draft lease. The ILUA might also address the opening and closing of roads by the State, as well as an offer to grant leases for public infrastructure, provided that relevant information was available in time. Other aspects of the Blockholders question were discussed. Mr Neal noted that the ILUA would offer leases which Blockholders would not have to accept.

106    At a meeting on 28 September 2010, Mr Bowen was not present. The minutes record that certain difficulties associated with the transfer of the DOGIT area had been resolved by legislation, and that there was now no technical obstacle to the transfer. It was reported that the State intended to readvertise the proposal. It was agreed that Congress should push for an early transfer, preferably in 2010. A final meeting with Blockholders’ representatives and the State was fixed for 25 October 2010, with an information session to be conducted on 26 October. An authorization meeting was planned for Tuesday 9 November, with notices of that meeting to be sent out by 15 October. The terms of the ILUA were discussed, in particular as they concerned Blockholders. The meeting also acknowledged that Congress had committed itself to the grant of leases to the Council over public infrastructure.

107    The annual general meeting of Congress was held on 23 November 2010. Mr Bowen did not attend. The meeting heard that on the preceding day, there had been a meeting with the relevant State Government department. It was said that:

Most of the meeting was about the transfer and is congress competent? Yes Congress is competent although they are without resources. They can move quickly at times acting in the interests of the whole of Hopevale, holding the land for everyone, not just for native title holders.

108    The meeting recorded its disappointment that the transfer of the DOGIT had taken so long. The annual general meeting was adjourned to 14 December 2010, apparently because of the failure by some of the clans to nominate directors. A directors’ meeting was held on 14 December. Mr Bowen attended and was appointed Deputy Chairman. Under the heading “Transfer of DOGIT” the following passage appears in the minutes:

Following on from the discussion in the Annual General Meeting, it was proposed that agreements to lease be offered to all Blockholders where clan groups have indicated that they agree to lease blocks. It was proposed to start offering agreements to lease as soon as realistically possible in the New Year, as well as to have an authorisation meeting for an ILUA in early to mid February to consent to the grant of the leases.

109    On that day the annual general meeting was reconvened. Mr Bowen attended. The minutes record that:

There was then discussion about the proposed transfer of the Hopevale DOGIT and an update given following the meeting the day before between representatives of Congress, Blockholders, DERM [the relevant State Government department] and CYLC [the Cape York Land Council]. DERM advised that the earliest time it is likely to publish another notice proposing to transfer the DOGIT (apart from the town area) to Congress is in February 2011. There is a 28 day notice period after which the Minister may make a decision to transfer the land. It was noted that Thuubi has previously insisted that the town area must also be transferred, once arrangements for infrastructure within the town has been addressed.

110    There was a further meeting, probably of the directors on 1 February 2011. Mr Bowen did not attend. Ms Bradley gave an update concerning the transfer of the DOGIT. Two issues remained outstanding, namely finalization of the Blockholders’ leases and the leases of public infrastructure. It was said that each would require an ILUA. An aerial photograph was produced from which the infrastructure could be identified. Proposed leases to the Council were discussed in some detail. There was particular reference to arranging a meeting with the Dharrpa clan, to be held by the end of February. A meeting was proposed between Congress and the Council to discuss infrastructure.

111    Another meeting, probably a meeting of directors, was held on 1 March 2011. Mr Bowen did not attend. Mr Neal gave an outline of progress with respect to the transfer and the infrastructure issue. There was a further meeting on 3 May 2011. Again, Mr Bowen did not attend. By this time the Council had commenced proceedings designed to prevent the transfer of the land to Congress. These proceedings were discussed. It was suggested that there be a meeting between Congress and the Council. Survey of the Blockholders’ lease areas was about to start. The leases to the Blockholders and infrastructure leases were also discussed.

112    I have previously referred to a meeting of the board of directors held on 7 June 2011, which meeting Mr Bowen attended. No minutes were kept. However, in the newsletter for June 2011 there was a report of the proceedings of that meeting, including a summary of the ILUA which had been provided to the directors. The outline is detailed. It refers to the proposed transfer to Congress, the Blockholders’ leases, security for Council infrastructure and road regularization. Since Mr Bowen attended the meeting on the 7th, it is reasonable to infer that he received and read the summary. He certainly had every opportunity to do so. When he attended the clan meeting on the following day and again sought consent to the proposed lease to him and Gary Bowen, he did so with the knowledge acquired at the meeting on the previous day.

113    A critical meeting occurred on 12 September 2011. As I have previously observed, the number of people in attendance and their identities suggest that it was a directors’ meeting as is asserted by Mr Cobus. Mr Bowen did not attend. Mr Neal advised the meeting that each of the clan groups had indicated support for the Hopevale ILUA, and that certificates from each affected clan group had been received. It was said that Congress was now empowered to consider entering the Hopevale ILUA. The following resolution was passed unanimously:

The Corporation resolves, following:

•    consideration of the proposed Hopevale ILUA;

•    consultation with members of the relevant clans;

•    consultation with Cape York Land Council; and

•    receipt of regulation 9 certificates from each of the Gamaay, Nugal, Dharrpa, Binthi, Thiithaarr, Nguymbaarr Nguymbaarr; Ngaatha, Buurnga and Gulaal clans,

to authorise the chairman and a director to enter the Hopevale ILUA.

114    One might have thought that the dissemination of the summary of the terms of the ILUA in the June newsletter, coupled with the invitation in the newsletter to attend the clan meetings and read the draft ILUA, constituted sufficient consultation for the purposes of the PBC regulations. However the consultation was clearly over a much longer period of time and was more broadly based. The Board of Congress is representative of the clans. If there was any failure to consult with the Dharrpa clan, one might think that it was because Mr Bowen failed to keep himself abreast of developments and report to the clan concerning those developments. However it is clear that the clan was consulted. The well-attended meeting of 8 June 2011 obviously proceeded on the basis that the transfer to Congress was to proceed. The meeting demonstrated its acceptance of that fact and the other terms of the ILUA when it decided to grant the lease to Messrs Bowen, a decision made by the elders other than Mr Bowen. This conduct was only consistent with the clan members being generally satisfied with the matters addressed in the ILUA. Indeed, Mr Bowen’s own conduct on 7 and 8 June 2011 is only consistent with his being aware of, and accepting the proposal that Congress enter into the ILUA. Whatever reservations he may have had, he must have considered that there was general acceptance within the clan and chosen to take advantage of it. Few people would have been more able to lead any opposition to the ratification of the ILUA than was he.

115    Mr Bowen’s complaints are simply without substance. He clearly attended more meetings than he was willing to admit, including meetings at which it was made clear that there was to be a transfer of the DOGIT land and that, at the same time, leases were to be offered to Blockholders and to the Council and roads were to be “regularized”. By the time of the meeting on 7 June 2011, the terms of the ILUA were effectively settled. The applicants have not sought to identify any way in which the ILUA, in its final form differed from the summary which appeared in the June newsletter.

116    Turning to the specific complaints made in Mr Bowen’s affidavit, I do not accept that he was not notified of the meeting held on 12 September 2011. Clauses 11.2 and 11.3 of the Congress rules are as follows:

11.2    Calling and giving notice of directors’ meetings

(a)    The directors will normally determine the date, time and place of each directors’ committee meeting at the previous meeting.

(b)    A directors’ meeting may be called by a director giving reasonable notice individually to every other director.

(c)    The date, time and place for a directors’ meeting must not unreasonably prevent a director attending.

(d)    Reasonable notice of each directors’ meeting must be given to each director. The notice must state:

(i)    the date, time and place of the meeting

(ii)    the general nature of the business to be conducted at the meeting

(iii)    any proposed resolutions.

(e)    A resolution passed at a directors’ meeting will not be invalid only because of an unintentional omission or mistake in giving notice of the directors’ meeting under rule 11.2(d) or in giving notice of any changes to the item, date or place of the directors’ meeting.

11.3    Quorum at directors’ meetings

The quorum for a directors’ meeting is a majority of the directors, and the quorum must be present at all times during the meeting.

117     Mr Cobus exhibits a notice of meeting for the meeting held on 12 September 2011. It identifies the time, place and agenda. There would be no point in producing such a document if it were not to be distributed. I am unpersuaded by Mr Bowen’s claim that he did not receive notice of the meeting. If he was not aware of the meeting, it was probably because of his absence from Hopevale. Such absences must have made it difficult for him to keep in contact with the affairs of Congress and to perform his duties in connection with that corporation. The fact that he attended rather more meetings than he initially conceded, including the meeting on 7 June 2011, suggests that he was notified of proposed meetings. It is highly unlikely that he would have accepted a situation in which he was not invited to meetings, particularly given the fact that he was Deputy Chairman and a representative of his clan group. Passive acceptance of such exclusion would be inconsistent with his concern that his position as an elder be respected. In any event, any unintentional failure to give notice would be effectively excused by clause 11.2(e).

118    As to his complaints concerning the reg 9(2) documents, I do not accept that they were executed on behalf of the clan group. Such authorization is not contemplated by reg 9. Those giving the certificates were not holding themselves out as representatives of the clan. I see no basis for asserting that they needed any sort of authorization. The assertion that native title holders were not given an opportunity “to consider, let alone consent to” the native title decision, (entering into the ILUA), must be understood as relating only to the Dharrpa clan. The evidence demonstrates that the clan accepted and understood that Congress proposed to enter into the ILUA and that such understanding followed lengthy consultation. The process may have been informal, but it is clear that by the middle of 2011, at the latest, there was general acceptance that the land was to be transferred to Congress, that Blockholders were to receive leases, as was the Council, and that there was to be a regularization of the road system. Any other view would have been inconsistent with the holding of the meeting on 8 June for the specific purpose of considering Messrs Bowen’s application for a lease from Congress.

119    No basis has been shown for going behind the reg 9(2) documents. In those circumstances the second ground of review must also fail, whether it be advanced pursuant to s 5(1)(b) or 5(1)(c) of the ADJR Act.

120    In these reasons, I have not expressly referred to the careful submissions made on behalf of the respondents. Those submissions are, nonetheless, reflected in the reasons.

ORDERS

121    The application must be dismissed. I shall receive submissions as to costs.

Associate:

Dated:    28 February 2014