FEDERAL COURT OF AUSTRALIA

Conlon v QGC Pty Ltd (No 2) [2017] FCA 1641

ORDERS

THE COURT DECLARES THAT:

1.    The deed of agreement made on or about 16 February 2015 between the first respondent, thirteenth applicant, third respondent, fourth applicant, ninth applicant, fifth respondent, second respondent, second applicant, ninth respondent and third applicant (the deed):

(a)    is not an indigenous land use agreement under the Native Title Act 1993 (Cth) and has no force or effect under or in accordance with that Act; and

(b)    does not vary and has no contractual or other force or effect in respect of the Barunggam, Cobble Cobble, Jarowair, Western Wakka Wakka, Yiman and QGC area agreement, National Native Title Tribunal number QI2010/006, registered on the Register of Indigenous Land Use Agreements on 22 December 2010.

THE COURT ORDERS THAT:

1.    Kathleen Ott be removed as the tenth applicant to this proceeding and added as the ninth respondent.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This proceeding raises two issues that the parties have agreed, namely, whether, first, the indigenous land use agreement (ILUA) made at an authorisation meeting on 13 March 2010 and the details of which were registered QI2010/006 on 22 December 2010 in the Register of Indigenous Land Use Agreements under s 199B of the Native Title Act 1993 (Cth) has been validly varied by an amendment deed dated 16 February 2015 that was signed by only 9 of the 14 persons who comprised the native title party named in the ILUA (12 of whom were living at the date of the deed and had capacity to contract) and secondly, whether the deed required authorisation under s 251A of the Act for it to have force.

Introduction

2    The ILUA had two parties, QGC Pty Ltd, the first respondent, and the native title party, being 14 individuals who executed it as persons within the description of the native title party on its first page, namely:

Such of the following people who claim to hold Native Title in some or all of the ILUA Area who execute the ILUA within 48 hours of its authorisation: no more than one representative of each of the Warner, Daylight, Bundi, Davis, Jerome, Darlo(w), Williams, Waddy, Queary (Cressbrook), Henry and Watcho/Barney families (collectively, the Native Title Party) (emphasis in original)

3    There are 14 applicants, some of whom who were original signatories and others who claim to be acting as replacements for one of the original 14 individuals who signed the ILUA as members of the native title party. I will refer to the persons who currently are applicants as the Conlon parties. There are eight respondents, other than QGC, two of whom claim to be replacements for original signatories to the ILUA and the other six (one of whom died in 2013) were original signatories.

4    The ILUA had the purpose of enabling QGC to pursue, among others, its project to develop gas fields and associated infrastructure in the area of land and waters that it covered (the ILUA area), while conferring substantial financial benefits on persons who claimed to hold native title in that area.

5    QGC did not oppose the granting of the final relief sought by the Conlon parties and has made no submissions to uphold the operation of the deed.

The legislative scheme

6    I will briefly describe the process for making ILUAs of the kind concerned here in order to understand how the issues arise. It is common ground that the ILUA is an area agreement covered by Div 3 of Pt 2 of the Act. Relevantly s 24CD provides:

24CD    Parties to area agreements

Native title group to be parties

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

…

Native title group where no registered claimant or body corporate

(3)    If subsection (2) does not apply, the native title group consists of one or more of the following:

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

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

…

Other parties

(6)    Any other person may be a party to the agreement. (emphasis added)

7    Section 251A provides:

251A    Authorising the making of indigenous land use agreements

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

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

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

(2)    Without limiting subsection (1), when authorising the making of the agreement, a native title claim group may do either or both of the following:

(a)    nominate one or more of the persons who comprise the registered native title claimant for the group to be a party or parties to the agreement;

(b)    specify a process for determining which of the persons who comprise the registered native title claimant for the group is to be a party, or are to be parties, to the agreement. (emphasis added)

8    The infelicitously drafted expression “persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement” used in s 251A(1) must be read with s 24CD(3) to include persons who not only hold, but also those who claim to hold, native title. Any party to an ILUA, if all the parties agree, can apply in writing to the Registrar for it to be registered on the Register. Relevantly, s 24CG(3)(b) requires:

Certificate or statement to accompany application in certain cases

(3)    Also, the application must either:

…

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

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

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

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

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

9    The Registrar may only register an ILUA (such as the ILUA the subject of this proceeding) that contains a statement as mentioned in s 24CG(3)(b), if, among other conditions, the Registrar considers that the requirements of s 24CG(3)(b) have been met (s 24L(1) and (3)), namely, that all reasonable efforts have been made to ensure the identification of all persons who claim to, or may, hold native title in relation to land or waters in the area covered by the ILUA, and that those persons authorised its making. If, as here, s 24CL requires the Registrar to register an ILUA, he or she must do so by entering in the Register, among others, the name of each party to the ILUA, an address at which that party can be contacted, and any other details that the Registrar considers appropriate (s 199B(1) and (2)).

10    The Act creates the significance of registration of an ILUA in Subdiv E of Div 3 of Pt 2. That prescribes, relevantly, in s 24EA(1) and (2):

Subdivision E – Effect of registration of indigenous land use agreements

24EA    Contractual effect of registered agreement

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

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

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

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

Only certain persons bound by agreement

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

Procedural matters

11    In the event, in March 2010, 14 persons signed the ILUA as representatives of various families named in the definition of the collective term “native title party”. None of the parties has raised any issue about the fact that, despite the restriction to one representative of each family in the definition of the native title party in the ILUA, in four instances, two members of one family signed, namely, Patricia Conlon and Margaret McLeod signed for the Darlo(w) family of the Western Wakka Wakka family group, Lilian Colonel and Kylie Jerome for the Jerome family of the Jarowair family group. Elizabeth Johnson and Kathleen Ott for the Waddy family of the Yiman family group, and the late Clarissa Malone (who died on 14 March 2013 but who is named as the sixth respondent), and William Davis for the Davis family of the Cobble Cobble family group. It does not appear that a representative of at least one, or perhaps more, of other family groups signed the ILUA.

12    Ms Conlon began the proceeding as sole applicant. I required her to join as, proper and necessary parties, all the persons who signed the ILUA and the deed as members of the native title party in each document. That joinder occurred.

13    There was some confusion at different points of the proceeding as to which of the persons that Ms Conlon joined were on a particular side of the record.

14    I was satisfied by the evidence that Trevor Hauff gave today that the record of the proceeding needed to be corrected first, to remove Kylie Jerome as the twelfth applicant as named on the amended originating application and to add her as the eighth respondent and, secondly, to remove Kathleen Ott from the Court record as tenth applicant and add her as ninth respondent. Mr Hauff said this was because, after initially indicating to him that she was content to be named as an applicant, each of Ms Jerome and Ms Ott had ceased to have any desire to be party to the proceedings.

15    Ms Ott and Ms Jerome, although now respondents, have taken no part in the proceedings and are not represented by counsel and solicitors who act for the other five (living) individual respondents, whom I will call the McLeod parties.

Background –The ILUA

16    It is common ground that the ILUA was:

    made at an authorisation meeting in Toowoomba on 13 March 2010;

    lodged for registration on 30 November 2010; and

    registered on 22 December 2010.

17    The recitals to the ILUA recorded that the native title group (being the persons who hold or may hold native title in the ILUA area), as represented by the native title party, had agreed to consent to QGC progressing its gas project and to grant it rights within the ILUA area on the terms and conditions for which the ILUA provided. Clause 1.2 provided that where a party consisted of more than one person, those persons were jointly and severally bound under the ILUA (cl 1.2(e)) and references to the ILUA within it included the ILUA and any clause in, or annexure to, it, including as varied in accordance with cl 22(c) (cl 1.2(i) and (j)).

18    Relevantly, cl 2 sought to meet the requirements of s 24CG(3)(b) and cl 3 dealt with the way in which the native title party would make decisions under the ILUA. Those clauses provided:

2    Authority to enter into agreement

(a)    QGC represents and warrants that all reasonable efforts have been made by QGC to ensure that all persons who hold or may hold Native Title in relation to land and waters in the ILUA Area have been identified.

(b)    The Native Title Party and the Native Title Group represent and warrant that:

(i)    all reasonable efforts have been made by them to ensure that all persons who hold or may hold Native Title in relation to land and waters in the ILUA Area have been identified;

(ii)    the persons so identified have authorised the making of this Agreement in accordance with section 251A NTA; and

(iii)    each member of the Native Title Party has authority to enter into this Agreement on behalf of his or her Family.

3     Native Title Party’s decisions under this Agreement

The Native Title Party agrees that:

(a)    where it is required to make any decision under this Agreement, such decision is to be made by a majority of persons comprising the Native Title Party; and

(b)    where a Family Group is required to make any decision under this Agreement, such decision is to be made through the Native Title Party (emphasis added)

19    Clause 4 defined the term of the agreement as commencing on the authorisation date, namely 13 March 2010, and provided in cl 4(d) that the parties agreed that if the ILUA had not been registered “by 30 November 2010 (which date may be extended by agreement between the Parties), the Agreement will terminate”. The parties did agree under cl 4(d) to extend the time for registration although, there is no evidence of the circumstances of that agreement beyond the fact of the ILUA’s registration on 22 December 2010, subsequent to 30 November 2010.

20    Clause 5 provided that the native title party and the native title group (the claim group) consented to the doing of particular future acts within the ILUA area. Clause 6.1 provided that the ILUA would be registered as an area agreement (i.e. under s 24CD in Div 3 of Pt 2 of the Act) and that the parties would cooperate to do all things necessary to assist that registration occurring. Clause 8 provided a detailed set of provisions about the establishment and operation of an implementation committee for the purposes of oversighting, among other things, the financial benefits that were payable to the native title party for the benefit of the claim group. And, cl 22(a), (b) and (c) provided:

(a)    Each Party must do all things reasonably necessary to give full effect to this Agreement.

(b)    A right under this Agreement may only be waived in writing, executed by the Party or each of the Parties giving the waiver.

(c)    This Agreement can only be varied by written agreement executed by each Party. (emphasis added)

Background – the deed

21    It is common ground that there has been no authorisation meeting specifically to consider the terms of the deed. The deed identified its parties as QGC and:

Such of the following people who claim to hold Native Title in some or all of the ILUA Area who executed the ILUA within 48 hours of its authorisation: no more than one representative of each of the Warner, Daylight, Bundi, Davis, Jerome, Darlo(w), Williams, Waddy, Query (Cressbrook), Henry and Watcho/Barney families (“Native Title Party”). (emphasis added)

22    It is not necessary, because of the narrowing of the issues that the parties have sensibly agreed, to describe the process by which the deed came to be made. It suffices briefly to describe the deed’s terms and to note that it was signed by only nine of the 14 persons who originally signed the ILUA as members of the native title party. Five of those signatories, namely Darren Daylight, Kenneth Bone, Mona Booth, Elizabeth Johnstone and Natalie Alberts, have had subsequent change of heart and became applicants in this proceeding, challenging its validity. Of its 14 original signatories, the remaining four who signed the deed are Isobel Rabbitt, William Davis, Margaret McLeod and Kathleen Ott. It is common ground that Marlene Holt no longer had capacity to contract at the time of the entry into the deed.

23    Thus, seven of the original 14 members of the native title party comprise members of the Conlon parties and challenge the validity of, or the giving effect to, the deed. Five of the original contracting members of the native title party form the McLeod parties and support the validity and efficacy of the deed.

24    The deed contained, relevantly, a recital that cl 22(c) of the ILUA enabled the ILUA itself to be varied by written agreement executed by each of the parties. Clause 1.2 nominated certain provisions in the ILUA that were to have effect as if they had been set out in full in the deed. Clause 2 provided that the deed would take effect on the date from which it was signed by the parties which, it is now common ground, occurred on 16 February 2015. Clause 3 provided for that effect of its amendments to the ILUA were namely, first, to vary the provisions of the ILUA in accordance with the terms of the deed, and secondly, in cl 3(a)(ii):

(ii)    the ILUA is replaced by and substituted with the ILUA as amended by this Deed.

and this Deed constitutes written agreement of the Parties to vary the terms of the ILUA in accordance with clause 22(c) of the ILUA. (emphasis added)

25    The parties acknowledged in cl 3(b) that the Act did not make any provision for a variation or amendment of a registered ILUA and stated that they had agreed to be bound by and to implement the ILUA as if it had been varied validly by the deed. Clause 4 set out numerous and significant new definitions and other provisions. Clause 4.2 replaced cl 3 in the ILUA with a new provision setting out a decision-making process of a different kind, as follows:

4.2    Native Title Party’s Decisions

The ILUA is amended by deleting clause 3 and inserting the following new clause:

3    Native Title Party decisions

(a)     Any decision to be made by the Native Title Party under this Agreement may be made with the support of a minimum of five (5) Active Signatories, provided that the decision must have the support of at least one Active Signatory from each Family Group; and

(b)    Any decision to be made by a Family Group under this Agreement is to be made through the Native Title Party.

26    A new cl 3A that the deed created (in cl 4.3) dealt with a mechanism to replace, as a member of the native title party, the original and subsequent signatories who were no longer living, had capacity or interest in continuing to act. The deed also substituted (by cl 4.4) a new cl 8 that provided new governance provisions to replace the implementation committee. Next, cl 5 of the deed provided that the parties:

    agreed that the ILUA had not expired or terminated and that nothing in the deed had the effect of causing it to do so; and

    intended that the then current details of the ILUA would remain on the Register subject only to the inclusion of a notation, if the Registrar were prepared to do so under s 199B(2) of the Act, that the deed had varied the terms of the ILUA.

27    Last, cl 6.1 provided that the ILUA as amended by the deed constituted the entire agreement of the parties about its subject matter and superseded all previous agreements, undertakings and negotiations on its subject matter.

The McLeod parties’ submissions

28    The McLeod parties argued that on its proper construction, cl 3 of the ILUA permitted a majority of the persons comprising the native title party who were then living, and had capacity to contract to decide, to enter into a variation of it under cl 22(c), and that is, in effect, what they did in entering into the deed. They argued that, substantively, when the persons present at the authorisation meeting on 13 March 2010 agreed to the ILUA containing cl 22(c), they had consented thereby to all lawful variations that a majority of the native title party might choose to enter into at a subsequent time, without the need for that majority to return back to the persons capable of giving authorisation under s 251A to seek their authority to do so. They contended that the powers of the persons comprising the native title party, as defined under the ILUA, to make a variation under cl 22(c), were constrained by legal, equitable and statutory obligations, so that they were already authorised to enter subsequently into any proper variations (i.e. variations that were not inconsistent with the exercise of the individual’s legal, equitable or statutory obligations as a member of the native title party) of the ILUA as they decided.

29    The McLeod parties submitted that a statutory authorisation conferred by s 251A was different in kind to the authorisation conferred by s 251B, because in the former case, the process authorised the making of an ILUA, whereas in the latter, it authorised the bringing of a claim in accordance with the processes under the Act (including the power of the applicant in a native title claim under s 61 of the Act to deal with all matters arising under the Act in relation to the application under s 62A). Accordingly, the McLeod parties argued, an authorisation under s 251A was not one that conferred power on particular individuals, such as those who might comprise an applicant authorised under s 251B. Rather, they contended, an authorisation under s 251A created authority for the making of an ILUA but was not a specific conferral of a personal authorisation on each individual who might be a nominal party to the ILUA or one of the members of a collective party to the ILUA, such as the defined native title party here. They submitted the native title party, as defined in the ILUA, was not the same as the 14 individuals who had signed it. They argued that it was implicit in the authorisation to enter into the ILUA containing, as it did, cl 22(c), that cl 3(a) authorised a majority of those individuals who comprised the native title party to determine, as and when they chose in the future, to enter into any variation of the ILUA, without the need for a further authorisation meeting and all the complexity and expense that that would contain.

30    The McLeod parties contended that the deed, while technically amounting to a new ILUA, was not inconsistent with the parties varying the existing ILUA and providing for, what they described as, machinery provisions to which the deed sought to give effect. They said that because cl 22(c) envisaged that variations could be made, the ILUA would remain in force, but its amendment by the variation had been authorised to occur and that this process complied with the structure of the Act. They contended that the Registrar could note in the Register that amendments contained in the deed had been made to the ILUA. They argued that the very fact that the details in the Register recorded that the ILUA had been registered after the date in cl 4(d), namely 30 November 2010, evidenced that the parties had agreed, without the need for a further authorisation meeting, to extend the time before which the ILUA would cease to have effect were it not registered by 30 November 2010. The McLeod parties submitted that the ILUA was a commercial contract and that the Court should give commercial effect to cl 22(c) as a source of power for the making of the deed as a variation. They said that because of the inclusion of cl 22(c) in the ILUA there was nothing in the Act to require a further authorisation for the deed.

Consideration

31    I reject the McLeod parties’ arguments. Gleeson CJ, Gaudron, McHugh and Hayne JJ explained the principles applicable to the construction of agreements to vary an existing contract in Federal Commissioner of Taxation v Sara Lee Household and Body Care (Australia) Pty Limited (2000) 201 CLR 520 at 533-534 [22]-[24], and in Concut Pty Limited v Worrell (2000) 176 ALR 693 at 698-699 [19], Gleeson CJ, Gaudron and Gummow JJ said:

[19]    The relevant principles are well settled. In FCT v Sara Lee Household & Body Care (Aust) Pty Ltd, [(2000) 201 CLR 530 at 533 [22]] Gleeson CJ, Gaudron, McHugh and Hayne JJ said:

When the parties to an existing contract enter into a further contract by which they vary the original contract, then, by hypothesis, they have made two contracts. For one reason or another, it may be material to determine whether the effect of the second contract is to bring an end to the first contract and replace it with the second, or whether the effect is to leave the first contract standing, subject to the alteration. For example, something may turn upon the place, or the time, or the form, of the contract, and it may therefore be necessary to decide whether the original contract subsists.

Their Honours went on [at 534 [23]] to refer to the judgment of Taylor J in Tallerman & Co Pty Ltd. [v Nathan's Merchandise (Victoria) Pty Ltd [(1957) 98 CLR 93 at 143-144] Taylor J had rejected submissions that (a) “it is impossible by a subsequent agreement, merely, to vary or modify an existing contract” and (b) “[an] agreement which purports to vary an existing contract operates … first of all to abrogate entirely the existing contractual relationship and, then, to reinstate the terms of the old contract as varied or modified by the new agreement”. [cf Meek v Port of London Authority [1918] 2 Ch 96] His Honour, to the contrary, accepted the propositions that (a) the earlier contract might be rescinded altogether, the determining factor being the intention of the parties disclosed by the later agreement; (b) partial rescission is a variation, not the destruction, of the contractual relationship between the parties; and (c) the earlier contract may be varied by way of (i) partial rescission with or without the substitution of new terms for those rescinded and (ii) the addition of new terms with or without any partial rescission at all.[98 LR at 144] In Tallerman, Kitto J [98 CLR at 135 see also at 122-123 per Williams J] spoke in terms which involved acceptance of propositions (a) and (b) as identified above, adding that while “in strict logic” a variation may be a new contract, “the discharge of an old contract is a matter of intention”. (emphasis added)

32    In my opinion, the deed is a second contract relating to the ILUA area. Indeed, cl 3(a)(ii) of the deed expressly provided that the ILUA was “replaced by and substituted with the ILUA as amended by this Deed”. The question of how the deed might operate in respect of the ILUA outside the statutory context created by the Act, and in particular s 24EA(1), would require an examination of the intention, ascertained objectively, (as explained in Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 at 178-180 [38], [40]-[41] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) of the parties, first, to the ILUA and, secondly, to the deed. That enquiry raises the immediate difficulty that not all of the 14 individuals who, under cl 1.2(e) of the ILUA, were jointly and severally bound by it as members of the native title party signed the deed where the three of them who did not sign it, being some of the Conlon parties, were as at 16 February 2015 living and of full capacity.

33    As a matter of commonsense, it is difficult to see how the parties to the ILUA could be found to have intended to enter into a new agreement, being the deed, where a number of the individuals who were jointly and severally bound by the ILUA (under cl 1.2(e)) were not one of the individuals who were parties to, bound by or agreed to the terms of the deed. The only objective manifestation of the intention of the parties to the ILUA as to the deed is that only nine of the individuals and QGC, agreed while three living parties with contractual capacity did not agree to vary the ILUA.

34    Moreover, it is impossible to accept the McLeod parties’ argument that, in some way, the authorisation under s 251A of the Act that occurred on 13 March 2010 created some enduring authority that extended beyond making and giving effect to the ILUA in the terms that were before the meeting and were signed at or immediately after it. In particular, that authorisation did not create an authority for the native title party, or a majority of its members, subsequently to make a new agreement that could include whatever terms those individuals thought desirable and to which QGC also agreed.

35    The authorisation that s 251A envisages is the conferral of a power to enter into a specific contract, being an indigenous land use agreement. But that authorisation is limited to the entry into, and subsequent performance of, such an agreement in the terms for which the authorisation is given. It is not a general authorisation to enter, at a future time, one or more different contracts with new terms that were not considered by the persons who, earlier, had granted the authorisation.

36    The power of the parties under cl 22(c) of the ILUA to enter into a written variation of it was in the nature of an agreement to permit the parties later to agree new terms for another indigenous land use agreement, which might replace or vary the existing ILUA: Concut 176 ALR at 698-699 [19]. But cl 22(c), itself, did not authorise or permit any variation, whatever its terms, to bind the native title party without a new authorisation, under s 251A, to make that new contract. As Gibbs CJ, Murphy and Wilson JJ said in Booker Industries Pty Limited v Wilson Parking (Queensland) Pty Limited (1982) 149 CLR 600 at 604:

It is established by authority, both ancient and modern, that the courts will not lend their aid to the enforcement of an incomplete agreement, being no more than an agreement of the parties to agree at some time in the future. Consequently, if the lease provided for a rental “at a rental to be agreed” there would clearly be no enforceable agreement. (emphasis added)

37    In my opinion, properly understood, cl 22(c) was simply a statement by the parties to the ILUA that the only manner in which its provisions could be varied was by a subsequent agreement executed by each party. The clause was not an authority to make any variation that they subsequently might agree, or which the parties, or some of them, might think desirable.

38    Nor do I accept the McLeod parties’ argument that cl 3 of the ILUA operated to allow a majority of the then living 14 individuals, who had capacity to contract, to enter into the deed and, by doing so, vary the ILUA.

39    For the purposes of cl 3(a) of the ILUA, there was no decision “required” to be made “under” the ILUA to vary it. No provision of the ILUA required any of the parties to it to do anything to vary the ILUA, other than cl 4(d) which allowed the parties to agree, as they did, to extend the time before which the ILUA could be registered so that it would remain in force and effect. Rather, the decision of the nine individuals, who were its signatories, to enter into the deed for the purpose of amending the ILUA, cannot be characterised, within the meaning of cl 3(a) of the ILUA, as a decision that the native title party was “required” to make “under” the ILUA at all. It was a decision extraneous to the matters for which the ILUA itself required the native title party to make decisions. A decision intended to change the terms of the ILUA in the future so as to alter the relationships that it created is not a decision that the native title party was required to make under the ILUA.

40    To understand the issue in this way demonstrates why the deed is not an instrument that has any force or effect. First, all of the persons jointly and severally forming the native title party did not agree to the deed or to vary the ILUA. Secondly, the deed cannot operate consistently with the terms of s 24EA(1). That is because, as a matter of statutory construction, the deed cannot have any force or effect to change the contract, being the ILUA, the details of which are registered on the Register. The scheme of the Act is to require an indigenous land use agreement to be authorised in accordance with s 251A so that when made and registered it will create, among other things, the lawful authority for one party to do future acts in the area covered by the ILUA and it will give benefits to the parties to it, including persons who claim to, or do, hold native title, all of whom are made parties to the indigenous land use agreement by force of s 24CD(1) and (3).

41    The persons who hold or claim to hold native title in relation to the relevant area authorise the making of an ILUA under one or other of the two processes to which s 251A(1) refers. It is necessary for such an authorisation to be created under s 251A and for a person seeking to get the benefit of registration of an ILUA to satisfy the Registrar under ss 24CG(3)(b) and 24CL(1) and (3), that not only has the making of the particular agreement been authorised in accordance with s 251A, but also that all reasonable efforts had been made to ensure that all persons who hold, or might hold, native title in relation to the land or waters covered by the ILUA had been identified and authorised its making.

42    In my opinion, the deed cannot operate so as to include terms, or permit activities to be undertaken, that are inconsistent with the terms of the registered ILUA, when the registered ILUA continues, by force of s 24EA(1)(a), to operate unamended as a contract among the parties to it and as binding all persons who hold, or who may hold, native title in relation to any of the land or waters covered by it who are not already parties to it. The Act does not permit an instrument such, as the deed, to supervene the contractual force that s 24EA(1)(a) gives to an ILUA the details of which are registered.

43    Parties to a registered indigenous land use agreement can agree to enter into a variation of it. An agreement to vary an existing agreement, including an indigenous land use agreement that is registered under the Act, is a new contract: Sara Lee 201 CLR at 533-534 [22]-[24]; Concut 176 ALR at 698-699 [19]. The deed envisaged in cl 3(a)(ii) and (5) that, first, it was a new contract that would, somehow, “replace” and be “substituted” for the original terms of the ILUA that it varied, yet, secondly, this would not affect the registration of the ILUA except if and to the extent that the Registrar might enter details of the deed in the Register. However, if the deed were then to operate as an indigenous land use agreement, it had to (but did not) meet the requirements for registration, including ss 24CG(3) and 24CL, because it had not been authorised under s 251A by all the persons who hold or may hold native title in the ILUA area.

44    Because the deed is a new contract it is not the agreement, being the ILUA, that the meeting of 13 March 2010 authorised under s 251A. The persons present at the meeting had no knowledge of, and could not have intended to make, the deed. Nor did the 13 March 2010 meeting give authority to the native title party, or a majority of its members, to change or vary the ILUA itself. The only authority that the native title party had pursuant to s 251A was to carry the ILUA into effect and to make decisions “under” it. That was not an authority to vary the ILUA. Clause 22(c) simply provided that any variation to the ILUA had to be in writing executed by both parties (QGC and the native title party). The Act provided that any such variation if subsequently made, itself, had to be registered as an indigenous land use agreement before it could operate to vary (as a contract at common law or as a contract given force under s 24EA(1)) an already registered ILUA.

45    Thus, a variation, such as that sought to be accomplished by the deed must be an ILUA and must go through the process of registration under s 24CL. However, to so qualify it would require authorisation under s 251A, which, plainly, the deed lacks.

Conclusion

46    For these reasons, I am of opinion that the deed is not an indigenous land use agreement under the Act, and it has no force or effect under, or in accordance, with the Act. The deed does not vary, and has no contractual or other force or effect in respect of, the ILUA as registered. There should be no order as to costs in accordance with s 85A(1) of the Act.

Associate:

Dated:    21 February 2018

SCHEDULE OF PARTIES