FEDERAL COURT OF AUSTRALIA

Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ further amended originating application filed 18 December 2017 is dismissed.

2.    The applicants pay the respondents’ costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    Ms Delia Kemppi and her fellow applicants are Wangan and Jagalingou People. They also form a part of a group within the Wangan and Jagalingou People who are opposed to the Carmichael coal mine which Adani Mining Pty Ltd (the first respondent) wishes to develop in Central Queensland.

2    The area of the proposed Carmichael coal mine falls within the claim area of the Wangan and Jagalingou native title determination application (the W & J application). As a consequence, Adani needs to obtain the agreement of the Wangan and Jagalingou People with respect to any native title that may be affected by its development. To that end, in April 2016, Adani, the State of Queensland (the third respondent) and the Wangan and Jagalingou native title claim group (the W & J claim group) entered into an Indigenous Land Use Agreement (the Adani ILUA) under the provisions of Division 3 of Part 2 of the Native Title Act 1993 (Cth) (the NTA). Subsequently, Adani successfully applied to the Native Title Registrar (the fourth respondent) to enter the Adani ILUA on the Register of Indigenous Land Use Agreements (the Register) under Part 8A of the NTA.

3    Ms Kemppi’s main goal in this proceeding was to set aside that registration. The path to that goal comprised two stages. The first stage concerned a certificate that was issued by Queensland South Native Title Services (QSNTS) (the second respondent) in April 2016 under s 203BE(1)(b) of the NTA (the Certificate). That Certificate was subsequently used by Adani to support its application to the Registrar to enter the Adani ILUA on the Register. Accordingly, in the first stage, Ms Kemppi sought, by this proceeding, to have that Certificate declared to be “void and of no effect”. Assuming she is able to obtain that declaration, in the second stage, Ms Kemppi sought a declaration that the Registrar had no jurisdiction to consider Adani’s application and therefore his decision to enter the Adani ILUA on the Register was “void and of no effect”.

4    There were two legs to Ms Kemppi’s attack on the Certificate. In the first leg, she claimed that, in issuing the Certificate, QSNTS acted unreasonably and thereby committed jurisdictional error which, she claimed, justified the declaration of nullity that she sought. In the alternative, in the second leg, she claimed that, in issuing the Certificate, QSNTS failed to take account of a number of relevant considerations which, she claimed, resulted in jurisdictional error which, she claimed, should lead to the same result. Finally, Ms Kemppi made a third challenge to the registration of the ILUA. She claimed that Adani’s application to register the ILUA did not comply with regs 5 and 7(2)(e) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) (the Regulations) and, for that reason, the Registrar’s decision to register the ILUA was void and of no effect.

5    Before considering these three grounds of challenges more closely, it is appropriate to provide some further factual context. In the paragraphs that follow, I have relied extensively on the statement of agreed facts adopted by all the parties, except the fourth respondent, who filed a submitting appearance.

FACTUAL CONTEXT

Further details of the W & J application

6    The W & J application was filed on behalf of the W & J claim group by its then authorised applicant (the W & J Applicant) on 27 May 2004. The application covers an area of approximately 30,277 square kilometres on the western edge of Central Queensland and includes the townships of Clermont, Alpha, Rubyvale and Capella. The requisite details of the application were entered on the Register of Native Title Claims (under s 190(1)(a) of the NTA) on 5 July 2004.

7    Ms Kemppi and her fellow applicants (who I will together refer to hereafter as “Ms Kemppi”) comprise five of the 12 members of the presently constituted W & J Applicant. The other seven members are Mr Patrick Malone, Ms Irene White, Ms Priscilla Gyemore, Mr Craig Dallen, Mr Norman Johnson Jnr, Ms Gwendoline Fisher and Mr Les Tilley. One of the consequences of the registration of the W & J application is that Ms Kemppi and the other 11 members of the W & J Applicant also comprise the registered native title claimant for the W & J claim, as that expression is defined in the NTA: see ss 253 and 186(1) of the NTA.

The notices for the authorisation meeting

8    On 16 April 2016, a meeting was held to consider authorising the making of the Adani ILUA under s 251A of the NTA (the authorisation meeting). Prior to that meeting, Adani published notices advertising the meeting in the following newspapers:

(a)    The Courier-Mail on 16 March 2016;

(b)    The Fraser Coast Chronicle on 18 March 2016;

(c)    The Morning Bulletin on 18 March 2016;

(d)    The Townsville Bulletin on 18 March 2016;

(e)    The South Burnett Times on 22 March 2016;

(f)    The Koori Mail on 23 March 2016; and

(g)    The Central Queensland News on 23 March 2016.

9    An example of those published notices was the following, which was published in the Fraser Coast Chronicle:

10    In addition to publishing the newspaper notices described above, on or about 16 March 2016, Adani sent by express post to each person on a mailing list maintained by QSNTS a document entitled “Public Notice of Authorisation Meeting”, which provided notice of the authorisation meeting in a similar form to that above.

The authorisation meeting

11    The authorisation meeting was held on 16 April 2016. Two forms of record were made of that meeting. One was an extract of the main resolutions passed at the meeting and the other was a detailed record of the meeting entitled “Record of Meeting”. That record was based on notes taken by Ms Wendy Bithell and Mr Chris Athanasiou and their recollection of the events of the meeting.

12    The main resolutions document mentioned above commenced with a preamble and then set out the terms of the main resolutions passed at the meeting. That preamble was as follows:

PREAMBLE

Members of the native title claim group to the Wangan and Jagalingou People Native Title Determination Application (NNTT No. QC2004/006; Federal Court No. QUD85/2004) (W&J Native Title Claim) who identify with the name Wangan and Jagalingou are descendants of the following persons:

(the W&J People).

The W&J People wish to consider the authorisation of a proposed agreement between Adrian Burragubba, Patrick Malone, Irene White, Lyndell Turbane, Priscilla Gyemore, Craig Dallen, Linda Bobongie, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley, Delia Kemppi and Lester Barnard on their own behalf in their capacity as Registered Native Title Claimant for the W&J Native Title Claim and on behalf of the W&J People, Adani Mining Pty Ltd and the State of Queensland, that is intended to be registered as an Indigenous Land Use Agreement (ILUA).

The W&J People also wish to consider the related ancillary agreement to that ILUA (Ancillary Agreement) between Adrian Burragubba, Patrick Malone, Irene White, Lyndell Turbane, Priscilla Gyemore, Craig Dallen, Linda Bobongie, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley, Delia Kemppi and Lester Barnard on their own behalf in their capacity as Registered Native Title Claimant for the W&J Native Title Claim and on behalf of the W&J People and Adani Mining Pty Ltd.

13    The main resolutions recorded in that document included the following:

3.    AUTHORISATION OF ILUA AND ANCILLARY AGREEMENT

The persons present and entitled to vote at this meeting comprising the persons who hold or may hold native title to the ILUA Area:

AUTHORISE:

(a)    the making of an ILUA between Adrian Burragubba, Patrick Malone, Irene White, Lyndell Turbane, Priscilla Gyemore, Craig Dallen, Linda Bobongie, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley, Delia Kemppi and Lester Barnard on their own behalf in their capacity as Registered Native Title Claimant for the W&J Native Title Claim and on behalf of the W&J People, Adani Mining Pty Ltd and the State of Queensland titled ‘Carmichael Project Indigenous Land Use Agreement’ over the lands and waters described in the ILUA as presented to and discussed at this meeting of 16 April 2016; and

(b)    the making of an Ancillary Agreement between Adrian Burragubba, Patrick Malone, Irene White, Lyndell Turbane, Priscilla Gyemore, Craig Dallen, Linda Bobongie, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley, Delia Kemppi and Lester Barnard on their own behalf in their capacity as Registered Native Title Claimant for the Native Title Claim and on behalf of the W&J People and Adani Mining Pty Ltd as presented to and discussed at this meeting of 16 April 2016.

4.    REPRESENTATIVES TO SIGN THE ILUA AND ANCILLARY AGREEMENT ON BEHALF OF THE W&J PEOPLE

The persons present and entitled to vote at this meeting comprising the persons who hold or may hold native title to the ILUA Area:

(a)    authorise and direct the persons who comprise the Applicant for the W&J Native Title Claim who are presently:

•    Adrian Burragubba;

•    Patrick Malone;

•    Irene White;

•    Lyndell Turbane;

•    Priscilla Gyemore;

•    Craig Dallen;

•    Linda Bobongie;

•    Norman Johnson Jnr;

•    Gwendoline Fisher;

•    Les Tilley;

•    Delia Kemppi; and

•    Lester Barnard,

on their own behalf in their capacity as Registered Native Title Claimants for the W&J Native Title Claim and on behalf of the W&J People, to sign the proposed ILUA and Ancillary Agreement, to bind themselves and the W&J People to the terms of the ILUA and Ancillary Agreement and to take all steps as are necessary to have the ILUA registered;

(b)    where one or more of the persons comprising the Applicant for the W&J Native Title Claim refuse or are unable to sign the proposed ILUA and Ancillary Agreement, the W&J People agree to be bound by, and this Authorisation Meeting evidences the W&J People’s intent to enter into and authorise, the ILUA and Ancillary Agreement; and

(c)    agree that the signatories to the proposed ILUA and Ancillary Agreement may make such minor technical or other amendments to the proposed ILUA and Ancillary Agreement as they consider appropriate and necessary to better assist the registration of the ILUA without the need for another Authorisation Meeting of the W&J People.

5.    AUTHORISATION FOR ADANI TO MAKE APPLICATION FOR REGISTRATION OF THE ILUA ON THE REGISTER OF INDIGENOUS LAND USE AGREEMENTS

The persons present and entitled to vote at this meeting comprising the persons who hold or may hold native title to the ILUA Area:

(a)    authorise Adani Mining Pty Ltd to apply to the Native Title Registrar for the proposed ILUA to be registered as an ILUA on the Register of Indigenous Land Use Agreements pursuant to section 24CG of the Native Title Act 1993 (Cth) and to thereafter take all steps as necessary to have the ILUA registered; and

(b)    request that Queensland South Native Title Services certify the application for registration of the ILUA in accordance with its statutory function pursuant to section 203BE(1)(b) of the Native Title Act 1993 (Cth);

(c)    confirm that they will do all things reasonably necessary to support the State of Queensland, Adani Mining Pty Ltd and the Native Title Registrar to register the proposed ILUA including, but not limited to not objecting to the registration of the ILUA or the certification of the application to register the ILUA and assisting Adani and the Native Title Registrar to resolve any objections that are made to the registration of the ILUA or the certification of the application to register the ILUA.

14    With respect to resolution 4 above, the agreed facts record the following:

6.    Patrick Malone, Irene White, Priscilla Gyemore, Craig Dallen, Norman Johnson Jnr, Gwendoline Fisher and Les Tilley signed [the ILUA] on 16 April 2016

7.    [Adani] signed the ILUA on 18 April 2016.

8.    The ILUA was signed by the Minister for Natural Resources and Mines on behalf of [State] on 20 April 2016.

9.    [Ms Kemppi and her fellow] applicants have not signed the ILUA.

15    The Record of Meeting document mentioned above contained a detailed record of the attendees at the meeting, the information that was provided to those attendees and the details of comments made by the meeting facilitator, Mr Darryl Pearce, and others, during the course of the meeting. With respect to the attendees, the record document recorded that they fell into the following categories:

(a)    Wangan & Jagalingou People (green wrist bands);

(b)    Persons claiming to hold native title in the ILUA Area, Erica Walker (red wrist band);

(c)    Facilitator, Darryl Pearce (yellow wrist band);

(d)    Legal adviser to the Facilitator, Chris Athanasiou (yellow wrist band);

(e)    Minute Taker, Wendy Bithell (yellow wrist band);

(f)    Representatives of Adani Mining (yellow wrist band):

•    Ian Sedgman – General Manager, Mine Infrastructure;

•    Muthuraj Guruswamy (Raj) – General Manager, Corporate Affairs;

•    Llewellyn Lezar – Head of Mining;

•    Derek Neilson – Senior Legal Counsel;

•    Hamish Manzi – Head of Environment & Sustainability;

•    Srinivasa Yarlagadda – Manager, Hydrogeology & Approvals;

•    Melinda Bergmann – Manager, Approvals;

•    Vinay Panday – Manager, Planning; and

•    External legal representatives/consultants: William Oxby and Alice Hoban (Herbert Smith Freehills) and Graham Carter (Environment Land Heritage);

(g)    Legal representatives for the Applicant on the W&J Native Title Claim for future act and cultural heritage matters, HWL Ebsworth, Philip Hunter & Lara McQuaid (yellow wrist band);

(h)    Representatives of QSNTS assisting with registration and certification (yellow wrist band):

•    Jeff Harris – Research Manager;

•    Andrew Fahey – Research Officer;

•    Nicolas Daza – Research Administration Officer;

•    Richard Sporne – Community Relations Officer;

•    Ron Fogarty – Community Relations Officer; and

(i)    Persons assisting with the conduct of the meeting such as safety personnel (yellow wrist band).

16    As to the information that was provided to the attendees at the meeting, the record document recorded the following:

2.    On each chair in the hall there was a white folder titled Wangan & Jagalingou and Adani Carmichael Project ILUA ILUA Authorisation Meeting Materials City Hall, Maryborough Saturday, 16 April 2016 (the “Information Folder”) containing the following documents:

•    a yellow document titled Wangan & Jagalingou and Adani Carmichael Project ILUA ILUA Authorisation Meeting City Hall, Maryborough Saturday, 16 April 2016 Agenda, which also stated “Draft Agenda” in the top left hand corner of the cover page (the “Agenda”);

•    a blue document titled Wangan & Jagalingou and Adani Carmichael Project ILUA ILUA Authorisation Meeting City Hall, Maryborough Saturday, 16 April 2016 Resolutions, which also stated “Draft Resolutions” in the top left hand corner of the cover page (the “Resolutions”);

•    a colour printed booklet titled The Carmichael Project Wangan & Jagalingou and Adani Mining Pty Ltd Indigenous Land Use Agreement Ancillary Agreement Cultural Heritage Management Plans Information Booklet ILUA (the “Information Booklet”); and

•    a white document titled Wangan & Jagalingou People Native Title Claim Group (W&J People) Adani’s Carmichael Project Indigenous Land Use Agreement and Ancillary Agreement Authorisation Meeting Maryborough, 16 April 2016 (the “W&J Presentation”).

3.    There were two screens at the end of the hall onto which the documents in the Information Folder were projected at the times they were discussed.

4.    The meeting opened at 9.00am, following registration which commenced at around 7.00am.

(Emphasis in original)

17    The statements made during the opening session of the meeting were recorded in the record document as follows:

Opening statement by the Applicant.

11.    Les Tilley from the W&J People addressed the group and requested a minute’s silence. The minute’s silence was held.

12.    Les Tilley thanked the Butchulla People for their welcome. He hoped the W&J People would achieve today what they most desire. Les recognised ancestors, elders and children.

13.    Les Tilley thanked Adani for sticking with them for many years and for giving them the opportunity to ensure future generations are taken care of.

14.    Less (sic) Tilley said all W&J People were all here for the same thing. He noted families have been torn by negotiations and outside sources and he hoped families can come back together.

15.    Regarding voting, Les Tilley said it was the W&J People’s choice. Under Australian law it may be seen as signing away land but under Aboriginal lore it will always be Aboriginal land.

16.    Les Tilley said that all W&J People have a say in who represents us and who are our cultural leaders. He stated everyone in the room is a cultural leader.

17.    Les Tilley thanked people for coming today.

18.    Patrick Malone (W&J People) thanked all for the minute’s silence. He said their family is still in mourning over the loss of their sister Jessie Diver. She was passionate about the claim and they honour her memory today.

19.    Darryl Pearce addressed the group and asked that mobile phones be turned off. He said that these meetings are stressful. He also mentioned that when a moment’s silence is taken older people are remembered but the young ones that also are no longer with us should also be remembered.

20.    Darryl Pearce said the decision today should be a heart decision. People should be responsible for their decision and know their decision was right and for future generations.

21.    Darryl Pearce said questions can be asked throughout the day.

22.    Darryl Pearce referred the meeting to the Agenda. The meeting agreed with the Agenda through show of voices.

(Emphasis in original)

18    Following a presentation made by representatives of Adani and a discussion of other topics, the meeting turned to consider the resolutions to authorise the making of the ILUA. The introductory notes concerning that part of the meeting were noted in the record document as follows:

91.    1.20pm. The meeting reconvened. A QSNTS representative advised the Facilitator there were 341 people registered at the close of registration, one of whom (Erika Walker) was not a member of the W&J native title claim group.

92.    Darryl Pearce told the meeting that the Register had closed and that 341 people had registered, one of whom was not a member of the W&J native title claim group. He said the impression he was getting was that the people wanted to cut to the chase and make a decision. He asked if that was correct. The majority agreed verbally.

93.    Darryl Pearce confirmed who should be in the meeting. The people from the W&J group had a green wristband and family members wore a light blue wristband. Those persons who claim to hold native title in relation to the ILUA area wore a red wristband. Only people with green and red wristbands could vote. He then asked if everyone in the room was comfortable with that. The overwhelming majority verbally agreed.

94.    Darryl Pearce referred the meeting to the “blue document” – the Resolutions, which like the other documents in the Information Folder, was projected onto the two screens for the session. He summarised its pre-amble, which is on page 2 of the Resolutions.

(Emphasis in original)

19    The notes in the record document relating to that part of the meeting where a resolution was passed to adopt a decision-making process were as follows:

1. Decision-making Process

95.    Darryl Pearce read the first resolution: Decision-Making Process, from page 3 of the Resolutions document:

1. Decision-making process

The persons present and entitled to vote at this meeting comprising the persons who hold or may hold native title to the ILUA Area:

(a)    confirm that there is no particular process of decision-making under their traditional laws and customs that must be complied with by them when making decisions about authorising the making of an agreement that is intended to be registered as an ILUA and when dealing with matters arising in relation to matters of that kind; and

(b)    confirm that the decision-making process which will be adopted for this meeting is as follows:

(i)    the decision to be made will be put in the form of a clearly worded written motion;

(ii)    the motion will be read out to the meeting;

(iii)    the motion must be moved and seconded by those present before it is decided on;

(iv)    a decision in favour of or against the motion will be decided by a majority of a show of hands of those present and entitled to vote on the motion;

(v)    if there is any doubt about the result of the show of hands, a ballot may be conducted.

96.    Darryl Pearce asked who would like to move the motion. Edna Malone agreed to move the motion.

97.    Darryl Pearce asked who would like to second the motion. Theodore Frescon agreed to second the motion.

98.    Darryl Pearce asked if anyone would like to comment on the move for the motion. No-one sought to.

99.    Darryl Pearce asked if anyone would like to comment against the move for the motion. No-one sought to.

100.    Darryl Pearce asked all those who were in favour of the motion to raise their hand with the green armband. Darryl Pearce requested Chris Athanasiou, Philip Hunter and Lara McQuaid to each count the number of persons who had green wrist bands with their arms raised in three allotted sections of the hall which could be delineated by the seating arrangement. This they did. They advised their count which was noted down and tallied by Philip Hunter whilst overseen by Darryl Pearce and Chris Athanasiou.

101.    Darryl Pearce then asked all those who oppose the motion as read out to raise their hands. There were none.

102.    Darryl Pearce asked all those who wish to abstain from the motion to raise their hands. There were none.

103.    Darryl Pearce asked those with the red band who may hold native title to the ILUA Area who are in favour of the motion to raise their arm. Erika Walker, the sole person in this category, raised her hand.

104.    Darryl Pearce said there were 284 votes for the motion and none against therefore the motion was passed.

Result:

20    The notes in the record document relating to that part of the meeting where the resolution was passed to authorise the making of the Adani ILUA were as follows:

3. Authorisation of ILUA and Ancillary Agreement

116.    Darryl Pearce read out Resolution 3, Authorisation of ILUA and Ancillary Agreement from page 5 of the Resolutions document and apologised for the mispronunciation of any names:

3. Authorisation of ILUA and Ancillary Agreement

The persons present and entitled to vote at this meeting comprising the persons who hold or may hold native title to the ILUA Area:

Authorise

(a)    the making of an ILUA between Adrian Burragubba, Patrick Malone, Irene White, Lyndell Turbane, Priscilla Gyemore, Craig Dallen, Linda Bobongie, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley, Delia Kemppi and Lester Barnard on their own behalf in their capacity as Registered Native Title Claimant for the W&J Native Title Claim and on behalf of the W&J People, Adani Mining Pty Ltd and the State of Queensland titled ‘Carmichael Project Indigenous Land Use Agreement’ over the lands and waters described in the ILUA as presented to and discussed at this meeting of 16 April 2016; and

(b)    the making of an Ancillary Agreement between Adrian Burragubba, Patrick Malone, Irene White, Lyndell Turbane, Priscilla Gyemore, Craig Dallen, Linda Bobongie, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley, Delia Kemppi and Lester Barnard on their own behalf in their capacity as Registered Native Title Claimant for the W&J Native Title Claim and on behalf of the W&J People, Adani Mining Pty Ltd as presented to and discussed at this meeting of 16 April 2016.

117.    Darryl Pearce asked if there was anyone who wished to move the motion.

118.    A W&J attendee mentioned not all Applicants are present. Darryl Pearce explained that not all Applicants were required to sign the agreements.

119.    Cindy Button moved the motion.

120.    Darryl Pearce asked who would like to second the motion. Leisa Sjaardema seconded the motion.

121.    Darryl Pearce asked if anyone would like to speak for the motion. No-one sought to.

122.    Darryl Pearce asked if anyone would like to speak against the motion. No-one sought to.

123.    Darryl Pearce said on the basis that he had asked if anyone wanted to speak on the motion and that no-one had chosen to take the opportunity, that he would take the motion to the floor.

124.    Darryl Pearce asked that those persons with a green wrist band who are in support of the motion as read out to raise their hands in the air. Chris Athanasiou, Philip Hunter and Lara McQuaid each counted the number of people who had green wrist bands with their arms raised in their allotted sections of the hall. The counters reported their count, which was noted down and tallied by Philip Hunter.

125.    Darryl Pearce then asked that those persons with a green wrist band who are opposed to the motion to raise their hand in the air. Only one hand was raised at the rear of the hall, which was counted by Chris Athanasiou.

126.    Darryl Pearce asked that those persons with a green wrist band who wished to abstain from the motion to raise their hand in the air. Chris Athanasiou, Philip Hunter and Lara McQuaid each counted the number of people who had green wrist bands with their arms raised in their allotted sections of the hall. The counters reported their count, which was noted down and tallied by Philip Hunter. Darryl Pearce said that those people who abstained can have their name recorded if they wished. No-one sought to.

127.    Darryl Pearce asked those with a red band who may hold native title to the ILUA Area who support the motion to raise their arm. Erika Walker, the sole person in this category, raised her hand.

128.    Darryl Pearce said that as there were 294 votes for the motion, 1 against and 3 abstentions it was carried; resolution passed. He congratulated everyone. There was applause from the meeting.

Result:

The Adani ILUA

21    The Adani ILUA was dated 20 April 2016. The parties to it were recorded as:

Adrian Burragubba, Patrick Malone, Irene White, Lyndell Turbane, Priscilla Gyemore, Craig Dallen, Linda Bobongie, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley, Delia Kemppi and Lester Barnard (Representative Parties) on their own behalf in their capacity as Registered Native Title Claimant for the Native Title Claim and on behalf of the W&J People

Adani Mining Pty Ltd ABN 27 145 455 205 (Adani)

State of Queensland (State)

22    In the introductory section of the Adani ILUA, its background was recorded as follows:

A.    Adani proposes to develop a project in the ILUA Area, which will include:

(a)    the development of greenfield open-cut and underground coal mines, with a yield of up to 60 million tonnes per annum of product coal; and

(b)    the construction and operation of a railway line and other appropriate rail facilities connecting those coal mines to one or more ports.

B.    The W&J People assert that they hold Native Title Rights and Interests to the ILUA Area, including pursuant to the Native Title Claim. The ILUA Area is located wholly within the external boundary of the Native Title Claim.

C.    The Parties have:

(a)    entered into this Agreement for the purposes of ensuring the validity of the Agreed Acts, any Surrender or Taking of Native Title and the undertaking of the ILUA Project; and

(b)    in that respect, have agreed, on the terms outlined in this Agreement and the Ancillary Agreement, to consent to the Agreed Acts, any Surrender or Taking of Native Title and the undertaking of the ILUA Project.

D.    The State is a Party to this Agreement due to the requirement under section 24CD(5) of the NTA in relation to the Surrender. The State is not a party to the Ancillary Agreement.

23    The next section of the Adani ILUA set out the meanings of various expressions used in the body of the document. For present purposes, the following definitions are pertinent:

Agreed Acts means the acts and classes of acts listed in Schedule 2.

…

ILUA Area means the area described at Part 1 of Schedule 1 and shown on the map at Part 2 of Schedule 1.

ILUA Project means the project referred to in paragraph A of the Background and includes (to the extent that Adani, acting reasonably, considers the activities to be necessary or desirable (whether or not exclusively) for, or to support any aspect of the project) the planning, design, development, establishment, construction, extension, operation and maintenance of:

(a)    a coal mine or mines within the ILUA Area including exploration and drilling for coal;

(b)    removal and stockpiling of overburden;

(c)    extraction, processing and production of coal;

(d)    conveying and haulage transportation of coal;

(e)    loading and marketing of coal;

(f)    railway lines and railway infrastructure;

(g)    facilities for the extraction, storage, processing and transportation of gas including gas pipelines and other gas infrastructure;

(h)    facilities for the extraction, storage, processing and transportation of water including water pipelines, dams, bores and other water infrastructure;

(i)    power generation facilities, power transmission facilities and power lines;

(j)    access roads, haul roads and bridges;

(k)    levees and groin walls;

(l)    quarries and borrow pits;

(m)    laydown areas and stockpiles;

(n)    construction camps, accommodation villages and buildings;

(o)    offices, workshops and any other building or structures;

(p)    utility and industrial facilities and areas;

(q)    airports, airstrips and associated infrastructure;

(r)    telecommunication lines, communication cables and towers and other communication facilities;

(s)    sewer pipelines and associated infrastructure;

(t)    navigational equipment or aids; and

(u)    fuel, oil and explosives storage facilities,

as well as a reference to each and every phase and component of the operations referred to above and activities related to, associated with or incidental to the activities referred to above (including the phase of decommissioning and completing any final rehabilitation of those operations and terminating or surrendering the Agreed Acts).

…

Surrender means a surrender to the State of any of the Native Title within the Surrender Area for the purposes of the ILUA Project in accordance with the process set out in clause 9(b).

Surrender Area means an area of not more than 2,750 hectares to be located within the Surrender Zone.

Surrender Zone means the external boundaries formed by the coordinates set out at Part 3 of Schedule 1 and shown on the map at Part 4 of Schedule 1.

(Emphasis in original)

24    The acts and classes of acts listed in Schedule 2, referred to in the definition of “Agreed Acts” above, were as follows:

(a)    the Grant of any Approvals (or any other rights and interests) with respect to the ILUA Project, including:

(i)    Mining Interests (including the Mining Leases);

(ii)    under the Transport Infrastructure Act 1994 (Qld);

(iii)    under the Environmental Protection Act 1994 (Qld) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (including any environmental authority);

(iv)    under the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (including any pipeline licences or other petroleum authorities);

(v)    the declaration, dedication, use, management or similar act of any part of the ILUA Area for road purposes;

(vi)    the de-gazettal or similar act of any roads, reserves or other Crown land;

(vii)    tenure under the Land Act 1994 (Qld) and any easements;

(viii)    any water licence, dam licence or other Approvals under the Water Act 2000 (Qld);

(ix)    any Approvals related to or associated with any infrastructure including power lines, water pipelines, gas pipelines, conveyors, construction camps, buildings, roads, railways and telecommunication lines or other communication facilities; and

(x)    under the Sustainable Planning Act 2009 (Qld), Coastal Protection and Management Act 1995 (Qld), Forestry Act 1959 (Qld), State Development and Public Works Organisation Act 1971 (Qld), Vegetation Management Act 1999 (Qld), Electricity Act 1994 (Qld), Fisheries Act 1994 (Qld), Nature Conservation Act 1992 (Qld), Work Health and Safety Act 2011 (Qld), Queensland Heritage Act 1992 (Qld), Building Act 1975 (Qld), Explosives Act 1999 (Qld), Transport Planning and Coordination Act 1994 (Qld), Telecommunications Act 1997 (Cth) and Civil Aviation Act 1988 (Cth);

(b)    the undertaking of any acts pursuant to the above Grants or acts considered by Adani, acting reasonably, to be necessary or desirable for, or incidental to, the undertaking of the ILUA Project;

(c)     the making, amendment or repeal of legislation (including regulations, by-laws and ordinances) and similar acts necessary or desirable for, or incidental to, the ILUA Project; and

(d)    the validation of any of the acts referred to in paragraphs (a) to (c) above that were done invalidly prior to the Conclusive Registration of this Agreement.

25    The area described at Part 1 of Schedule 1 and the map at Part 2 of Schedule 1, referred to in the definition of “ILUA Area” above, were as follows:

Part 1 - Description of External Boundary (ILUA Area)

The ILUA Area includes all the land and waters within the part of the Native Title Claim that is located within the following co-ordinates:

[A list of co-ordinates was included extending over approximately three pages.]

26    Thereafter, the following was noted:

The above description of the ILUA Area is referenced from the GDA94 datum.

The land and waters comprising the ILUA Area are located wholly within Native Title determination application QUD85/2004 Wangan and Jagalingou People (QC2004/006), as accepted for registration on 5 July 2004.

Part 2 - Map of ILUA Area

27    Schedule 1 of the Adani ILUA also included two other parts (Parts 3 and 4) that described the details of the Surrender Area and Surrender Zone. They are as follows:

Part 3 - Description of External Boundary (Surrender Zone)

The Surrender Zone includes all the land and waters within the part of the ILUA Area that is located within the following co-ordinates:

[A list of co-ordinates was included extending over approximately one page.]

The above description of the Surrender Zone is referenced from the GDA94 datum.

The land and waters comprising the Surrender Zone are located wholly within Native Title determination application QUD85/2004 Wangan and Jagalingou People (QC2004/006), as accepted for registration on 5 July 2004.

Part 4 - Map of Surrender Zone

28    The operative clauses of the Adani ILUA included the following. First, clause 2 set out the ILUA requirements in the following terms:

2.1    ILUA

The Parties intend that this Agreement be an ILUA (area agreement) under Subdivision C of Division 3 of Part 2 of the NTA and that it be Registered.

2.2    Registration under NTA

(a)    The Parties intend that this Agreement be Registered under either section 24CK or section 24CL of the NTA and agree to such Registration of this Agreement.

(b)    The Parties also agree that, upon such Registration, to the extent that any Native Title Rights and Interests that exist over the ILUA Area are in any way affected by any of the Agreed Acts and the other matters consented to under clause 9, those Agreed Acts and other matters are valid pursuant to sections 24EB(2) and 24EBA(3) of the NTA and section 15A of the Native Title (Queensland) Act 1993 (Qld).

(c)    Each Party undertakes to do all things in its power to ensure that this Agreement is Registered.

2.3    NTA requirements

The Parties intend that this Agreement be an agreement meeting the requirements of sections 24CB to 24CE of the NTA. The Native Title Parties will not raise any objection to the effect that this Agreement does not meet those requirements.

2.4    Application for Registration

(a)    Adani is authorised on behalf of the Parties to, and will, make an application to the Registrar under section 24CG of the NTA for this Agreement to be Registered.

(b)    The Parties agree that Adani is authorised to undertake all procedural steps required to have this Agreement Registered, including:

(i)    the completion of all relevant forms and anything else required to satisfy regulation 7(2)(d) of the Regulations; and

(ii)    the making of such technical, typographical or other minor amendments that Adani considers necessary to ensure the Registration of this Agreement and that are approved by the Applicant on behalf of the W&J People and by the State (acting reasonably and promptly).

(c)    For the purposes of regulation 7(2)(b) of the Regulations, this clause shall constitute a statement by each Party that it agrees to the application being made.

2.5    Prescribed documents and information

The Parties must do all things necessary to provide the Registrar with a copy of this Agreement and any other prescribed documents or information required under section 24CG(2) of the NTA.

2.6    Statement to the Registrar

(a)    The Parties agree that this clause is a statement to the Registrar for the purposes of section 24CG(3)(b) of the NTA.

(b)    The Native Title Parties represent and warrant that:

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

(ii)    all of the persons so identified have Authorised the making of the Agreement as required under section 24CG(3)(b) of the NTA.

(c)    If the application for Registration of this Agreement is not certified by the Representative Aboriginal Body under section 24CG(3)(a) of the NTA, the Applicant on behalf of the W&J People will assist Adani to provide a statement to the Registrar setting out the grounds on which the Registrar should be satisfied that the statements in this clause are correct as required by section 24CG(3)(b) of the NTA.

2.7    Informing of Representative Aboriginal Body

The Native Title Parties warrant that they have informed the Representative Aboriginal Body of their intention to enter into this Agreement in accordance with section 24CD(7)(a) of the NTA and regulation 7(4) of the Regulations.

2.8    Restriction on details on Register

The Parties agree that, for section 199E of the NTA, this clause is a statement in writing by the Parties that, other than the details required to be entered on the Register of Indigenous Land Use Agreements under section 199B(1) of the NTA, they do not wish any details of this Agreement, including any details of the benefits to be provided under this Agreement or the Ancillary Agreement, to be entered on the Register of Indigenous Land Use Agreements.

29    Clause 5 identified the area to which the Adani ILUA applied in the following terms:

The area to which this Agreement applies is the ILUA Area.

30    Finally, clause 9 of the Adani ILUA set out, under the heading “Consents”, the details of the manner in which the Agreed Acts would be undertaken that affected native title. That clause was in the following form:

(a)    The Parties agree to and consent to:

(i)    the Agreed Acts without conditions;

(ii)    any Surrender that occurs pursuant to the process set out in clause 9(b);

(iii)    any Taking of Native Title; and

(iv)    the undertaking of the ILUA Project,

in each case to the extent that it is in accordance with this Agreement and any applicable Law.

(b)    With respect to clause 9(a)(ii), the Parties acknowledge and agree that:

(i)    pursuant to the process set out in this clause 9(b), Surrenders may occur with respect to one or more areas within the Surrender Area; and

(ii)    if:

A.    Adani seeks an Approval (with respect to an area within the Surrender Zone) that cannot be Granted unless a Surrender first takes place; and

B.    a Surrender over the part of the Surrender Zone that is the subject of the Approval would not result in the total area Surrendered under this Agreement or subject to a Taking of Native Title being greater than the Surrender Area,

then:

C.    provided this Agreement has been Registered, a Surrender will occur immediately before the Approval is Granted in relation to any Native Title Rights and Interests that exist within that part of the Surrender Zone that is the subject of the Approval; and

D.    Adani must notify the Native Title Parties of the Surrender (such notice to include a copy of a plan of survey identifying the area to which the Surrender relates) and provide the State with a copy of that notification.

(c)    The total area the subject of all Surrenders and any Taking of Native Title under clause 9(a)(ii) and 9(a)(iii), must not exceed the Surrender Area and the consents in those clauses 9(a)(ii) and 9(a)(iii) are subject to this limitation.

(d)    The Parties agree that any Surrender is intended to extinguish any Native Title that may exist in relation to the relevant part of the Surrender Zone, at the time of the Surrender.

(e)    Subject to clause 9(d), to the extent that the Grant or doing of any of the Agreed Acts, or the undertaking of any aspect of the ILUA Project, is a Future Act, the Parties agree that the Non-Extinguishment Principle applies to the doing of such Future Act.

(f)    The consents in clause 9(a) are statements for the purpose of section 24EB(1)(b)(i) and 24EBA(1)(a)(i) of the NTA and regulations 7(5)(a) and 7(5)(d) of the Regulations.

(g)    Clause 9(d) is a statement for the purpose of section 24EB(1)(d) of the NTA and regulation 7(5)(c) of the Regulations.

(h)    For the purposes of section 24EB(1)(c) of the NTA and regulation 7(5)(b) of the Regulations, on and from the date this Agreement is Registered, Subdivision P, Division 3, Part 2 of the NTA is not intended to apply to any Agreed Acts, or to any Surrender or any Taking of Native Title.

(i)    For the avoidance of doubt, the Parties agree that, if this Agreement is never Registered or it is Registered and subsequently removed from the Register of Indigenous Land Use Agreements, then subject to its termination in accordance with clause 16:

(i)    it will remain binding as a contract between the Parties; and

(ii)    the Ancillary Agreement will remain binding as a contract between Adani and the Native Title Parties.

The Certificate

31    QSNTS issued the Certificate in its capacity as the Native Title Service Provider holding recognition under s 203FE(1) of the NTA for the Southern and Western Queensland Region. That region includes the claim area of the W & J application.

32    To obtain the Certificate, HWL Ebsworth, the solicitor for the W & J Applicant in relation to future act and cultural heritage matters, wrote to the Chief Executive Officer (CEO) of QSNTS, Mr Kevin Smith, on 20 April 2016 requesting that QSNTS certify the application for registration under s 203BE of the NTA. That letter had attached to it the following documents:

(a)    the Adani ILUA;

(b)    the draft application for registration of the Adani ILUA;

(c)    correspondence between HWL Ebsworth and QSNTS dated 19 February 2016 and 11 April 2016;

(d)    correspondence between Just Us Lawyers and HWL Ebsworth dated 29 January 2016, 5 February 2016, 7 April 2016 and 13 April 2016;

(e)    the published notices (see at [8]–[9] above);

(f)    the authorisation meeting correspondence;

(g)    the attendance register sheets from the authorisation meeting;

(h)    the agenda used at the authorisation meeting and a record of the resolutions and outcomes arising from the authorisation meeting (see at [12]–[13] above);

(i)    a draft of a certificate in relation to the application to register the Adani ILUA.

33    In an email dated 22 April 2016, HWL Ebsworth also provided to Mr Smith a copy of the draft minutes of the authorisation meeting (see at [15]–[20] above).

34    Mr Smith signed the Certificate on 26 April 2016. He did so in his capacity as the CEO of QSNTS. The body of the Certificate was in the following form:

This certificate is provided by Queensland South Native Title Services (QSNTS) in respect of an application to register an agreement (the ILUA) between Adrian Burragubba, Patrick Malone, Irene White, Lyndell Turbane, Priscilla Gyemore, Craig Dallen, Linda Bobongie, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley, Delia Kemppi and Lester Barnard on their own behalf in their capacity as Registered Native Title Claimant for the Wangan & Jagalingou People Native Title Determination Application No. QC2004/006 (Federal Court of Australia No. QUD85/2004) (W&J Native Title Claim) and on behalf of the members of the native title claim group to the W&J Native Title Claim (W&J People), the State of Queensland and Adani Mining Pty Ltd ABN 27 145 455 205 (Adani) on the Register of Indigenous Land Use Agreements.

The area of land and waters covered by the ILUA (ILUA Area) is wholly within QSNTS’s representative body area. The area covered by the ILUA is within the external boundaries of the W&J Native Title Claim, which was filed in the Federal Court on 27 May 2004. The ILUA Area is not overlapped by any other claimant application.

QSNTS, is the Native Title Service Provider holding recognition under section 203FE of the Native Title Act 1993 (Cth) (NTA) for the Southern and Western Queensland Region.

I, Kevin James Smith, Chief Executive Officer of QSNTS, am authorised by QSNTS to perform its function of certification, and so in accordance with s203BE(5)(a) and (b) with respect to the ILUA, certify that:

(a)    all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA have been identified; and

(b)    all the persons so identified have authorised the making of the Agreement.

REASONS for QSNTS being of that opinion are as follows:

1.    All reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to the land or waters in the area covered by the Agreement have been identified.

(a)    QSNTS has undertaken extensive anthropological and genealogical research in relation to the W&J Native Title Claim as well as the region subject to the agreement.

(b)    QSNTS maintains a database of details concerning the identification of W&J People and is continuously engaging in a process of checking and updating the database.

(c)    The authorisation of the ILUA was the subject of widespread public advertising in seven newspapers:

I.    The Courier Mail – 16 March 2016;

II.    Fraser Coast Chronicle –18 March 2016;

III.    The Morning Bulletin – 18 March 2016;

IV.    The Townsville Bulletin – 18 March 2016;

V.    South Burnett Times – 22 March 2016;

VI.    The Koori Mail – 23 March 2016;

VII.    Central Queensland News – 23 March 2016.

(d)    Further notification, including a cover letter, a copy of the public notice and an information booklet regarding the ILUA, was sent to the mailing address of all those members of the W&J People on the database maintained by QSNTS.

2.    All the persons so identified have authorised the making of the ILUA.

The authorisation process for the making of the ILUA that has taken place can be described as an agreed and adopted decision-making process of the W&J People in authorising the ILUA. It involved:

(a)    The legal representative for the W&J Applicant in relation to this agreement consulted with QSNTS on 19 February 2016 and 11 April 2016;

(b)    Engagement between the Applicant to the W&J Native Title Claim and Adani at several properly notified and convened meetings of the Applicant, at which on each occasion a quorum of the Applicant were present, and at which decisions were made regarding the proposed authorisation of the ILUA, including approval of the final terms of the ILUA, the ancillary agreement to the ILUA, the meeting rules of conduct and proposed resolutions to be considered at the Authorisation Meeting;

(c)    The members of the W&J People, and any other persons who hold or may hold native [title] in the ILUA Area, being called to attend a meeting in Maryborough on Saturday, 16 April 2016 (Authorisation Meeting), which was independently facilitated;

(d)    Notification of the Authorisation Meeting having been given by way of widespread public advertising in seven newspapers and by way of individual mail-outs sent to all those persons on the QSNTS database of W&J People;

(e)    The Authorisation Meeting was held in Maryborough on Saturday 16 April 2016;

(f)    ARCHAEO Cultural Heritage Services, the Applicant’s usual service provider, being retained to assist the W&J People to register their interest in attending the Authorisation Meeting and providing reasonable travel assistance to do so;

(g)    QSNTS registering meeting attendees on the day of the Authorisation Meeting, with the assistance of their in-house anthropological team, ensuring that only those adult W&J People or other adult persons who hold or claim to hold native title in the ILUA Area being allowed entry to the Authorisation Meeting, and being entitled to vote on motions;

(h)    The registration and attendance of 340 adult members of the W&J People, comprising descendants of 12 of the 14 apical ancestors (who have known descendants) and one adult person who claimed to hold native title in relation to the ILUA Area, at the Authorisation Meeting;

(i)    The agenda, the meeting rules of conduct, clearly worded draft resolutions, a summary of the legal advice provided by HWL Ebsworth Lawyers and the information booklet regarding the ILUA being handed out to meeting attendees and displayed at the relevant times on large screens at the Authorisation Meeting;

(j)    General discussion of the issues notified to be the subject of Authorisation Meeting at the Authorisation Meeting, including question and answer sessions;

(k)    Legal advice on the issues notified to be the subject of Authorisation Meeting being provided by HWL Ebsworth Lawyers;

(l)    All resolutions being displayed and read out by the independent facilitator before voting, including meeting attendees being afforded the opportunity to speak for or against the motions;

(m)    The W&J People present at the meeting, and where appropriate, the other persons who were present and who hold or claim to hold native tide in the ILUA Area, then endorsing the resolutions, by way of a decision-making process resolved and agreed to at the Authorisation Meeting (by show of hands);

(n)    I am satisfied that through the holding of the Authorisation Meeting the W&J People authorised the making of the ILUA in accordance with the decision making process that was agreed to and adopted by the W&J People for that purpose.

The application to register the Adani ILUA

35    By an application dated 27 April 2016, Adani applied to the Registrar for the Adani ILUA to be registered. That Application was in a standard form provided by the National Native Title Tribunal. It followed a question and answer format. For example, after stating the short name of the ILUA, the second section of the application form was as follows:

36    There followed a number of questions and answers dealing with the identification of the parties to the ILUA. Pertinent to the present matter, section 8 of the Application form provided the following parties under the heading “Other native title parties (s 24CD(4)(a) and (b) NTA)”:

…

One person (not previously identified in the answers to questions 5 or 6 above) attended the agreement authorisation meeting claiming to hold native title in relation to the agreement area. Queensland South Native Title Services Ltd, the RATSIB/NTSP for the agreement area, who registered all members of the Wangan & Jagalingou People’s native title claim group and all persons who claim to hold native title in relation to the agreement area who attended the agreement authorisation meeting, formed the view that this person had established a prima facie case that they may hold native title in the agreement area but is not a member of the Wangan & Jagalingou People’s native title claim group.

This person is not a party to the agreement. This person voted in favour of the resolution to authorise the making of the agreement at the agreement authorisation meeting.

(Emphasis omitted)

37    Section 12 of the Application form identified the Adani ILUA in the following terms:

…

A complete description of the agreement area is set out at:

•    clause 5 (Area to which this Agreement applies) of the agreement;

•    clause 1.1 (Definitions) of the agreement, definition of “ILUA Area”;

•    Part 1 of Schedule 1 (Description of External Boundary (ILUA Area)) of the agreement; and

•    Part 2 of Schedule 1 (Map of ILUA Area) of the agreement.

No areas within the external boundary of the agreement area are excluded from the agreement area.

…

(Emphasis omitted)

38    Section 13 of the Application form set out a complete description of the Surrender Area as follows:

…

A complete description of the area within which the surrender of native title is intended to extinguish native title rights and interests is set out at:

•    clause 1.1 (Definitions) of the agreement, definitions of “Surrender Area” and “Surrender Zone”;

•    Part 3 of Schedule 1 (Description of External Boundary (Surrender Zone)) of the agreement; and

•    Part 4 of Schedule 1 (Map of Surrender Zone) of the agreement.

…

(Emphasis omitted)

39    Sections 15, 16 and 17 of the Application form identified the provisions of the Adani ILUA which affected native title, as follows:

(a)    Consent to future acts (s 24EB(1)(b) of the NTA and reg 7(5)(a) of the Regulations):

•    Clause 9 (Consents) of the agreement;

•    Schedule 2 (Agreed Acts) of the agreement; and

•    clause 1.1 (Definitions) including:

o    “Agreed Acts”;

o    “Surrender”;

o    “Taking of Native Title”; and

o    “ILUA Project”.

(Emphasis omitted)

(b)    Acts excluded from the right to negotiate (s 24EB(1)(c) of the NTA and reg 7(5)(b) of the Regulations):

•    Clause 9(h) of the agreement; and

•    clause 1.1 (Definitions) including:

o    “Agreed Acts”;

o    “Registered”;

o    “Surrender”; and

o    “Taking of Native Title”.

(Emphasis omitted)

(c)    Surrender intended to extinguish native title (s 24EB(l)(d) NTA and Reg 7(5)(c) Regulations):

•    Clauses 9(a) and 9(d) of the agreement; and

•    clause 1.1 (Definitions) including:

o    “Surrender”;

o    “Surrender Zone”; and

o    “Taking of Native Title”.

(Emphasis omitted)

40    The Application form had attached to it a large number of documents including the Adani ILUA itself and a copy of the Certificate.

The Adani ILUA is registered and this proceeding is commenced

41    On 8 December 2017, having considered Adani’s application, the Registrar entered the pertinent details of the Adani ILUA on the Register.

42    In the meantime, on 24 March 2017, Ms Kemppi filed this proceeding seeking the declarations described earlier.

THE EVIDENCE

Ms Williams’ affidavit

43    Before detailing the evidence that was tendered by the parties at the trial, I will deal with the objections to the tender of the affidavit of Ms A Williams. Ms Williams was a Paralegal Officer employed by QSNTS. She made an affidavit on 16 September 2016 for the purposes of an interlocutory application in the W & J application proceeding QUD 84/2004. It is not in dispute that Ms Williams’ affidavit was read in open court and was relied upon for the purposes of that interlocutory application. During the trial, Ms Kemppi sought to tender Ms Williams’ affidavit. Initially, QSNTS objected to that tender on the ground that the tender would breach the implied undertaking made by each party not to use any document disclosed in a proceeding for any purpose otherwise than in relation to that proceeding, relying upon Esso Australia Resources Ltd v Plowman (1994) 183 CLR 10 at 32 per Mason CJ. In response to this contention, Ms Kemppi relied upon r 20.03(1) of the Federal Court Rules 2011 (Cth). That rule provides:

If a document is read or referred to in open court in a way that discloses its contents, any express order or implied undertaking not to use the document except in relation to a particular proceeding no longer applies.

44    In turn, QSNTS pointed to r 20.03(2), which provides: “However, a party, or a person to whom the document belongs, may apply to the Court for an order that the order or undertaking continue to apply to the document” and submitted that, since Ms Williams had not consented to the proposed use of her affidavit and, until such time as she is notified of that proposed use and given an opportunity to apply to the Court for an order continuing the implied undertaking, Ms Kemppi ought not be permitted to tender the affidavit.

45    For the following reasons, I consider Ms Kemppi is entitled to tender Ms Williams’ affidavit. First, in the circumstances described above, r 20.03(1) clearly operates to set aside the implied undertaking. Secondly, I consider the “party” to which r 20.03(2) refers is the party who tendered the document in the proceeding concerned. That is, in this instance, the W & J Applicant. Accordingly, since QSNTS was not a party to that proceeding, that rule does not avail it. Thirdly, since the affidavit was tendered by the W & J Applicant in support of its application in that proceeding, it is debatable whether it is the “person to whom the document belongs”, or whether those words refer to Ms Williams. However, I do not consider it is necessary to determine that issue. That is so because I consider r 20.03(2) is primarily directed to preventing the further disclosure of information that, by its nature, is private or confidential to a party, or the person to whom the document belongs. On its face, Ms Williams’ affidavit does not contain any such information. It sets out the details of various searches she conducted in her capacity as a Paralegal Officer employed by QSNTS. Accordingly, even if it were assumed that she owns the affidavit, taking account of its contents, I do not consider an order under r 20.03(2) would be justified. For these reasons, I will allow the tender of Ms Williams’ affidavit. It will be marked Exhibit A18.

The relevance of the evidence

46    I should say at the outset that I have included the following somewhat lengthy survey of the evidence adduced in this matter in deference to the efforts of the parties and in case this matter goes elsewhere. Its length and detail should not, however, be taken as an indication that I consider all of the evidence to be relevant to an issue I need to decide in this matter. To the contrary, as will emerge later in these reasons, I consider most of this evidence, particularly the evidence adduced by Ms Kemppi, is irrelevant to any such issue.

The evidence Ms Kemppi adduced

47    The evidence Ms Kemppi adduced at the trial essentially fell into three categories. First, there was evidence from a number of Wangan and Jagalingou People who had attended the authorisation meeting on 16 April 2016 and/or an earlier authorisation meeting of the W & J claim group conducted under s 251B of the NTA and held on 21 June 2015. Secondly, there was evidence from a Mr Esposito with respect to an analysis he had undertaken of the attendees at the two meetings mentioned above and another authorisation meeting of the W & J claim group. Thirdly, there was evidence from a number of Wangan and Jagalingou People concerning the criteria for membership of the Wangan and Jagalingou People.

48    In summary, the first category of evidence described above followed two themes. The first was that a large number of people had attended the authorisation meeting on 16 April 2016 that, according to those witnesses, had not attended any earlier W & J claim group meeting or any related meetings. The second theme was that, according to those witnesses, there was no checking of the people who had attended the 16 April 2016 authorisation meeting to determine whether or not they were members of the W & J claim group. The witnesses who attended both meetings included Mr C Dallen, Ms J Broome, Ms C Gyemore and Mr E McEvoy. The witnesses who attended the earlier authorisation meeting on 21 June 2015, but did not attend the authorisation meeting on 16 April 2016, included Ms L Barnard, Ms L Turbane and Mr A Burragubba.

49    The following extracts from the affidavits of these witnesses exemplify the two themes mentioned above:

(a)    Mr C Dallen

7.    I attended an authorisation meeting held to approve the Adani ILUA on 16 April 2016. I attended with members of my family. Before entering the meeting, we had to sign a registration sheet. The sheets were arranged on desks forming a long barrier at the entrance to the hall in the order of our ancestors who make up the claim group. I registered with my daughters and son. It was straight forward to register. Neither myself nor any member of my family were asked who we were or to show any form of identification. Nor did anybody check any documents or ask us questions about our family history. I recognised that the registration desks were staffed by Queensland Native Title Services (“QSNTS”). The person attending to our registration just accepted we were who we said we were, no questions asked. We were not even asked to declare that we were Wangan and Jagalingou people …

8.    There were in my estimation approximately three hundred people in attendance at the meeting. The meeting appeared to be twice the size of any previous meeting of the claim group that I attended.

9.    Most of the people I had never seen before at a Wangan and Jagalingou meeting. I saw that they were given arm bands to allow them to vote and participate in the meeting. The most obvious example of this is Marshall Saunders who signed the attendance register (see page 8) under my ancestor, “Dan Dunrobin”. Gunggari country is a long way from our country.

(b)    Ms J Broome

4.    When I arrived at the meeting, we were made to sign an attendance register under our ancestor. We were not asked to show any I.D . We were not asked to show that we were descendants from Momitja nor whether we identified as Wangan and Jagalingou people. As far as I could see nobody else was asked this either. There were no elders standing near by to vouch that we were Wangan and Jagalingou People. I saw Les Tilly who is the Applicant for the Momitja descent group, he was not standing near the registration desk but in the kitcken (sic) talking to the Adani boys.

7.    There were a lot of people I did not know at the meeting. I have been to at least five meetings of the Wangan and Jagalingou claim group. I have a pretty good idea of who is in our mob. However, most of the people at the Adani Meeting I had never seen before at a Wangan and Jagalingou meeting. I met the daughter of “Burra” Bone in the toilets at the Adani Meeting. Burra is prominent in the Cherbourg community. I asked her what she was doing at the meeting and she did not answer me directly.

(c)    Ms C Gyemore

8.    There were plenty of people at the meeting. It was at least twice as big as any claim group meeting I had previously attended. I have been around a while and I know better than most who should be at our meetings. However, I had no idea who many of the people at the Adani Meeting were. I certainly had never seen them before at any Wangan and Jagalingou meeting.

(d)    Mr E McEvoy

6.    When I arrived at the meeting, they made me sign an attendance register. Even though I had pre-registered for the meeting the people sitting at the desks at the entry could not find my name on the attendance register, so it took some time for me to sign in. They asked me who my ancestor was and I told them Lizzie McAvoy. They (sic – I) did not observe them to write this down anywhere or ask me for identification and they did not check with anybody that what I told them was correct.

9.    The Adani meeting was much larger than any claim group meeting I had previously attended. I thought the meeting of 21 June 2015 was large with an attendance of about 180 people but this meeting was twice as large. I saw several buses pull up full of people from Cherbourg. Many of the people I saw there I had never seen at a Wangan and Jagalingou meeting and had never before claimed to me to be from our country.

50    Ms Barnard, Mr Burragubba, Ms Kemppi and Ms Turbane elected not to attend the authorisation meeting on 16 April 2016. As well as giving evidence about the procedures followed at the earlier W & J claim group and related meetings they had attended, they gave evidence about the criteria for membership of the W & J claim group. For example, in his affidavit Mr Burragubba described a W & J claim group authorisation meeting that he attended on 29 June 2014 as follows:

2.    On 29 June 2014 I attended the authorisation meeting, which was facilitated by Queensland South Native Title Services (“QSNTS”). QSNTS formulated the resolutions to be considered at the meeting and they were read out and explained by the Chair prior to being considered by the meeting. The authorisation meeting was held for the purpose of considering who should be eligible to become a member of the claim group for the native title claim. One of the resolutions put to the meeting was whether the people present were sufficiently representative of the claim group to make authoritative decisions about the native title claim. The Chair of the meeting explained that the purpose of the resolution was to enable anybody at the meeting to object to people being present. I did not voice any opposition to the resolution. I knew most of the people in attendance from attending previous meetings and from my association with members of the claim group throughout my life. I was satisfied that they identified as belonging to my traditional country.

3.    After this resolution was passed, the meeting went on to consider whether to expand the claim group description by adding to the list of ancestors. I listened to anthropological advice that the apical ancestors to be added were members of the same traditional society as my apical ancestor.

4.    From what I had been taught by my mother and father, grandmother and grandfather and other elders connected all the way back, this is fundamental to our traditional law and custom. After the change to the claim group description was approved, people were let into the meeting on the basis that they were descendants from those ancestors. We were again given an opportunity to consider whether those present were part of Wangan and Jagalingou people. I was satisfied that they identified as Wangan and Jagalingou and belong in the claim group. Because of this, I voted for the motion to accept them as also being representative of the Wangan and Jagalingou people.

51    Similarly, Ms Turbane gave evidence in her affidavit about her recollections of attending the same meeting and a subsequent meeting on 21 June 2015 as follows:

5.    I attended an authorisation meeting held on 29 June 2014 which was called for the purpose of considering whether to add descent lines to the claim group description of our native title claim. My family was already included in the list of apical ancestors so our recognition as part of our mob was not called into question. However, there was a proposal to add other family groups into the native title claim. This proposal did raise the question of whether there were people in attendance who were now seeking to join our native title claim who had never previously identified with my mother’s country. Queensland South Native Title Services (“QSNTS”) were running the meeting. They put forward a proposition for consideration that the people in attendance were representative of the claim group. The question for my family and I was whether the people at the meeting identified as belonging to my mother’s country. Because I knew most of the people from the new families that were being added I was prepared to accept them as part of our mob.

6.    I was appointed as an Applicant for the native title claim at an authorisation meeting held 21 June 2015. The meeting was called to appoint a new applicant with a representative from each descent line. Before we proceeded with the business of the meeting we were again given an opportunity to accept that the people in attendance belonged to our country. I voted for this resolution because I accepted that the people in attendance at the meeting that day identified as belonging to my mother’s country.

52    In cross-examination, some of the witnesses admitted, or it otherwise became apparent, that they were members of other native title claim groups. They included Ms Turbane, Mr Burragubba and Ms Ford.

53    Mr Esposito’s evidence was based on an analysis he conducted of four lists, three of which were admitted into evidence. Those lists were annexed to his affidavit as follows:

(a)    Annexure AE1 – the attendance sheets for the authorisation meeting held on 16 April 2016 (this annexure was struck out, although it was still referred to in the body of the affidavit below);

(b)    Annexure AE2 – the list of surnames of Wangan and Jagalingou People annexed to the affidavit of Ms Williams;

(c)    Annexure AE3 – the attendance sheets for the meeting of the W & J claim group held on 21 June 2015 annexed to the affidavit of Ms Williams; and

(d)    Annexure AE4 – the attendance sheets for a meeting of the W & J claim group held on 19 March 2016.

54    With respect to Annexures AE2 and AE4, Mr Esposito said that:

5.    I have also been informed by Sharon McAvoy (who was formerly employed by the QSNTS and worked with the data base contained in AE2) QSNTS Data Base that it is composed from all the persons who are recorded as attending a Wangan and Jagalingou claim group meetings occasions prior to the June meeting). As a result I have assumed that the QSNTS Data Base is a relatively accurate record of all the members of the claim group who have attended past authorisation meetings and have been accepted as Wangan and Jagalingou people.

6.    I was in attendance at an authorisation meeting of the claim group held on 19 March 2016, and I have obtained from Sharon Ford a copy of the attendance sheets for that meeting …

55    Mr Esposito described the analysis he undertook with respect to the four lists set out above in the following terms:

7.    From the information referred to AE1 to AE4, I have composed a table showing all those who are recorded as attending the Adani authorisation meeting (AE1) and comparing with those who are on the QSNTS data base (AE2), those who are recorded as attending the June meeting (AE3) and those who attended the authorisation meeting of 19 March 2016 (AE4) …

56    He outlined the results of that analysis as follows:

8.    The table at AE5 shows that 25.36% of those who attended the Adani meeting were also listed on the QSNTS Data Base, 26.53% were listed as also attending the June meeting, and only 1.45% were listed as also attending the authorisation meeting of 19 March 2016.

9.    Overall, 208 people or 60.64%, who attended the Adani meeting were not recorded as attending any prior meeting of the Wangan and Jagalingou claim group by virtue of the fact that they were recorded on the QSNTS Data Base or on the attendance sheets of the claim group authorisation meetings of 21 June 2015 or 16 March 2016.

57    In cross-examination, Mr Esposito was asked to read [4], [5] and [10] of Ms Williams’ affidavit (now Exhibit A18: see at [45] above). Those paragraphs stated as follows:

4.    On 6 September 2016 I was requested by Tim Wishart, Principal Legal Officer at QSNTS to provide him with a list of the Wangan and Jagalingou claimants and their addresses from the QSNTS database.

5.    I was also requested to cross reference the addresses for each of the Wangan and Jagalingou claimants in the QSNST database with the information on the website of the Electoral Commission Queensland (“ECQ”) to produce a table and graph to establish how many Wangan and Jagalingou claimants live in each Local Government Area.

10.    Annexed to this Affidavit and marked “AMW-2” is a copy of the report and graph produced by me showing the 278 Wangan and Jagalingou claimants from the QSNTS database and the corresponding Local Government Area in which they reside.

(Emphasis in original)

58    Thereafter the following exchange occurred:

Now, having looked at those paragraphs of Ms Williams’ affidavit, do you agree with me that the document that is at 1415, and which is AE2 to your affidavit, is not itself the QSNTS database. It’s not a copy of it?---Well, to the extent that I suggest I’ve made some adjustments based of some data calculations, yes. But it appears to be the same document.

No. No. But what I’m asking is – do you accept that that document at 1415 is a document that Ms Williams created using the database but it’s not itself the database. It’s not a copy of the database?---Well, yes. It’s from the Queensland South database, yes.

Well, the information is taken from the database?---Yes.

But it’s not a copy of the database?---Apparently. I mean, I assume the database is very large.

And do you agree with me that Ms Williams must have created this list at page 1415 at some time between 6 September 2016, when Mr Wishart asked her to create it, and 16 September 2016, when she prepared her affidavit?---Presumably, yes.

So you agree that that list is created sometime in September 2016?---Well, as far as I can ascertain. I don’t know when she created it.

59    A short time later, in response to a question about the contents of the QSNTS database, Mr Esposito said: “… I don’t know what the Queensland South database actually contains, because it’s a confidential database.”

60    Mr Esposito was then taken to [5] of his affidavit (see at [54] above) and asked a number of questions concerning Annexure AE2:

You refer there to some things that you had been informed by Sharon McEvoy (sic – McAvoy)?---Yes.

And Sharon McEvoy (sic – McAvoy) is also known as Sharon Ford?---Correct.

Do you know when Ms Ford says (sic – ceased) to be employed by QSNTS?---No, not the exact date.

…

Thank you. In paragraph 5, you say that Ms McEvoy (sic – McAvoy) or Ms Ford informed you that the QSNTS database is composed from all the persons who are recorded as attending a Wangan and Jagalingou claim group meeting occasions prior to the June meeting. Do you see that - - -?---Yes.

- - - there? When you refer there to the QSNTS database, do you mean document AE2 in your affidavit?---Correct, yes.

And you agreed with me a moment ago that it seemed that the document that is AE2 was probably created in September 2016?---I can only take your word for that. I really don’t know when it was created.

Right?---It just appears in an affidavit in that time period.

… If you look at the second sentence of paragraph 5, you say:

I’ve assumed that the QSNTS database –

by which is mean AE2 – is that correct?---Well, the first part is a reference to the practice of Queensland South, the database that the (sic – they) keep reflects the attendance at meetings. And then as a result, I’ve assumed that the AE2, the material submitted by Anne Williams from the database is an accurate record.

And if it were the case that it’s not an accurate record, that would undermine the analysis that you’ve conducted later on in your affidavit. Do you agree with that?---Well, no. Not really.

All right?---The analysis, you know, performs a function. It’s a simple comparative analysis of lists, you know, supplemented by working knowledge of those around me in terms of how those - - -

Thank you?--- - - - lists are composed.

61    Later in his cross-examination, Mr Esposito was taken through his analysis and the contents of the various annexures to his affidavit and he admitted that his analysis contained a number of errors. At the conclusion of that questioning, he was asked:

But you’re not able to explain to me, Mr Esposito, how you’ve reached the conclusion that they don’t?---Well – well, I just did explain to you. I’ve given you that there’s a possibility of a margin of error, but we’re talking a small margin of error in – in the broader statistical analysis.

62    In her affidavit, Ms Ford (nee McAvoy) confirmed that she was the person named Sharon McAvoy referred to in [5] and [6] of Mr Esposito’s affidavit (see at [54] above). She also said that she had previously been employed by QSNTS and had worked on the “QSNTS data base contained in AE2 of the Esposito [a]ffidavit” (emphasis in original). Pertinent to this statement, the following exchange occurred during Ms Ford’s cross-examination:

So that’s what you had described as the QSNTS database in paragraph 3 of your affidavit. Do you still have that open?---Well, I was advised it was the QSNTS database that Mr Esposito had showed me and I said it was – the names were familiar and I can’t say whether it’s the exact database of Queensland South.

All right. I will just ask you to have a look at AE2, if you’ve still got that open. So that’s on page 646?---Yes.

…

What I want to suggest to you is that you did not ever work with the document that is at AE2?---No, I didn’t.

And so you don’t have any knowledge of how that document was created?---No, I don’t.

All right. Have you ever spoken with Mr Esposito about that document that is AE2?---Yes, I think I did. He did show it to me.

Did you tell him that AE2 was a copy of the QSNTS database?---No, I didn’t.

Did you tell him that AE2 was composed of all people who are recorded as attending a Wangan & Jagalingou claim group meeting prior to 21 June 2015?---No, I don’t recall that.

And did you tell him that AE2 was an accurate record of all people who had attended past authorisation meetings and have been accepted as Wangan & Jagalingou?---I don’t recall saying that.

Do you think you didn’t say that to Mr Esposito?---I would have – my comment, I’m pretty sure was that the names are familiar to me of previous people who had attended.

63    Before leaving Mr Esposito’s evidence, I would add the following observation. Even if this evidence were truly relevant to any issue in this matter, I would not have been willing to rely upon it. I have reached that conclusion because of: the inconsistencies highlighted above between Mr Esposito’s evidence and that of Ms Ford (nee McAvoy) (see at [54] and [62] above); his erroneous assumptions about the status of Annexure AE2 vis-à-vis the QSNTS database; and the errors in his analysis as disclosed by the cross-examination outlined above.

The evidence Adani adduced

64    For its part, Adani tendered four affidavits. It is only necessary, for present purposes, to detail the contents of two of them. First, Mr C Von Schlebusch, a Geological Database Manager employed by Adani, explained the contents of Parts 1 to 4 of Schedule 1 to the ILUA (see at [25]–[27] above):

5.    Part 1 is the geographic information identifying the External Boundary (ILUA Area). I prepared the geographic information in Part 1 in the form of an Excel spreadsheet. Annexed and marked CRVS-2 is a copy of my Excel spreadsheet. I have checked the properties file on an electronic version of that spreadsheet. The properties file shows that the spreadsheet was created on 27 November 2012 and last modified on that date. I have reviewed my Excel spreadsheet against Part 1 of Schedule 1 of the ILUA and I confirm that the geographic information contained in the Excel spreadsheet is the same as in Part 1. I am not able to say how the information from my Excel spreadsheet was placed into the form in which it appears in Part 1.

6.    Part 2 is a map of the ILUA Area which is a visual representation of the geographic information in Part 1. I prepared the map that appears in Part 2 on about 19 May 2014 in the form in which it appears in Part 2.

7.    Part 3 is the geographic information identifying the External Boundary (Surrender Zone). I prepared the geographic information in Part 3 in the form of an Excel spreadsheet. Annexed and marked CRVS-3 is a copy of my Excel spreadsheet. I have checked the properties file on an electronic version of that spreadsheet. The properties file shows that the spreadsheet was created on 15 May 2014 and last modified on 19 May 2014. I have reviewed my Excel spreadsheet against Part 3 of Schedule 1 of the ILUA and I confirm that the geographic information contained in the Excel spreadsheet is the same as in Part 3. I am not able to say how the information from my Excel spreadsheet was placed into the form in which it appears in Part 3.

8.    Part 4 is a map of the Surrender Zone which is a visual representation of the geographic information in Part 3. I prepared the map that appears in Part 4 on about 19 May 2014 in the form in which it appears in Part 4.

(Emphasis in original)

65    By way of further explanation of those Parts of Schedule 1 to the ILUA, Mr Von Schlebusch said:

9.    Part 1 states, underneath the geographic information: “The above description of the ILUA Area is referenced from the GDA94 datum.” Similarly Part 3 states, underneath the geographic information: “The above description of the Surrender Zone is referenced from the GDA94 datum.”

10.    GDA94 is a coordinate reference system that assists in identifying latitude and longitude. (GDA stands for Geocentric Datum Australia.) GDA94 is accepted by the Intergovernmental Committee on Surveying and Mapping and was adopted nationally across Australia on 1 January 2000.

11.    The geographic information in Part 1 of Schedule 1 of the ILUA is a written description of the ILUA Area. A person with an understanding of the application of GDA94 would be able to identify the ILUA Area from the coordinates appearing in Part 1. Using the coordinates appearing in Part 1, it would be possible to mark out the boundaries of the ILUA Area on the ground. The map in Part 2 provides a visual context for the ILUA Area by reference to surrounding features such as roads. The map in Part 2 shows geographic coordinates around the border of the map.

12.    The geographic information in Part 3 of Schedule 1 of the ILUA is a written description of the Surrender Zone. A person with an understanding of the application of GDA94 would be able to identify the Surrender Zone from the coordinates appearing in Part 3. Using the coordinates appearing in Part 3, it would be possible to mark out the boundaries of the Surrender Zone on the ground. The map in Part 4 provides a visual context for the Surrender Zone by reference to surrounding features such as the mining leases. The map in Part 4 shows geographic coordinates around the border of the map.

66    Secondly, Adani tendered an affidavit by Mr Simon Gall. Mr Gall is a Cultural Heritage Specialist employed by a company called ARCHAEO Cultural Heritage Services Pty Ltd (ARCHAEO). In his affidavit, Mr Gall described how he had undertaken various pieces of cultural heritage work for the Wangan and Jagalingou People from time-to-time since 2005.

67    He said:

In 2014, ARCHAEO was engaged to arrange an authorisation meeting for the approval of an Indigenous Land Use Agreement (ILUA) between Adani, the State of Queensland and the W&J People. ARCHAEO made the transport, accommodation and logistical arrangements for the authorisation meeting, which was held on 4 October 2014 at Rockhampton. I attended that meeting. The ILUA was not authorised by a majority of the W&J People at the meeting.

(Emphasis in original)

68    In mid-March 2016, Mr Gall said, ARCHAEO was again engaged to facilitate a further authorisation meeting. As a consequence, he said that, on about 17 March 2016, ARCHAEO sent a letter to Adani outlining how ARCHAEO could assist to facilitate the authorisation meeting, together with a table setting out its proposed arrangements for that meeting. In his affidavit, Mr Gall said that:

15.    In summary, ARCHAEO’s proposal as set out in the table and approved by Adani was as follows:

(a)    Transport Assistance for Registered Attendees: ARCHAEO would book and pay for transport for registered attendees. The proposal for transport assistance varied depending on the residence of the attendee, as follows:

(i)    Cherbourg, Woorabinda – a charter bus service be made available, with private vehicle travel considered on a case by case basis;

(ii)    Brisbane, Bundaberg, Dalby, Gold Coast, Ipswich, Rockhampton, Toowoomba – public transport (where available) or private vehicle allowance based on the ATO legislated rate of $0.75 / km; and

(iii)    Cairns, Clermont, Emerald, Mackay, Mt Isa, Townsville and interstate locations – public transport (where available) or private vehicle allowance based on the cheapest flights available on the days of travel (15 and 17 April 2016).

(b)    Accommodation Assistance for Registered Attendees: ARCHAEO would book and pay for accommodation for the night of 15 April 2016 in Maryborough for registered attendees who requested this. For registered attendees who made their own accommodation arrangements, the legislated ATO rate of $110 / night would be paid. Accommodation for the night of 16 April 2016 would be considered on a case by case basis.

(c)    Meals and Incidentals Assistance for Registered Attendees: ARCHAEO would pay each registered attendee the ATO legislated amounts of $44.75 for dinner and $18.70 for incidentals, in respect of travel to Maryborough on 15 April 2016. Additional meals and incidentals assistance would be considered on a case by case basis.

(d)    Timing of Assistance Payments: ARCHAEO proposed that it would pay 50% of the assistance payment for each registered attendee to their bank account prior to their commencing travel to Maryborough, with the remaining balance to be paid in cash on 16 April 2016.

(e)    On Ground Transport: ARCHAEO proposed to arrange mini-bus services to pick up and drop off registered attendees at Hervey Bay Airport, Maryborough Train Station and Maryborough Bus Service, and services to transport registered attendees between their accommodation and the meeting venue.

(f)    Catering: ARCHAEO proposed providing breakfast and lunch at the meeting.

(g)    Security: ARCHAEO proposed arranging for security officers to attend on the day.

(h)    Safety / First Aid: ARCHAEO proposed having first aid officers in attendance on the day.

(i)    Welcome to Country: ARCHAEO proposed having a Butchulla Traditional Owner give a Welcome to Country (Butchulla are Traditional Owners in the Maryborough region).

16.    The arrangements for the authorisation meeting on 16 April 2016, including booking of transport and accommodation for registered attendees, and payments to registered attendees in respect of transport, accommodation, food and incidentals were generally carried out in accordance with the proposal set out in ARCHAEO’s table and approved by Adani.

(Emphasis in original)

69    Mr Gall described the pre-registration process for attendees at the authorisation meeting on 16 April 2016 as follows:

19.    ARCHAEO received phone calls and some emails from people who wished to attend the authorisation meeting. I took some of those phone calls and others were taken by ARCHAEO staff. I provided instructions to ARCHAEO staff as to how to deal with these phone calls and to my knowledge my instructions were generally followed. I instructed my staff who were taking phone calls not to express any view on the merits or otherwise of the proposed ILUA or the Carmichael Coal Project. The practice adopted by me and other ARCHAEO staff was to ask the people who wished to attend to provide their name and the name of their W&J ancestor or ancestors.

20.    Some people provided ARCHAEO with the name of their W&J ancestor or ancestors. In some cases, people did not know the name of their W&J ancestor or ancestors but were able to tell us the names of family members. Based on the information provided and our knowledge of the W&J family groups we were generally able to identify the family group and the W&J ancestor for each person. Once the relevant family group and W&J ancestor was identified, ARCHAEO added that person to the list of registered attendees.

21.    In other cases it was not clear whether a person who had called was a member of the W&J People. In those cases we contacted the relevant Applicant for the W&J People to find out whether the person was a member of that Applicant’s family group. If the Applicant accepted the person as a member of their family group then ARCHAEO added that person to the list of registered attendees.

22.    In most cases ARCHAEO was able to identify the ancestry and family group of people who had registered to attend the authorisation meeting. There were a small number of people in respect of whom ARCHAEO was not able to do so. Those people were included on the list of registered attendees.

23.    ARCHAEO provided the list of registered attendees to Adani for provision to Queensland South Native Title Services (QSNTS). It was the role of QSNTS to confirm that all of the people in attendance at the authorisation meeting were entitled to attend. ARCHAEO was not responsible for making the final decision about who was entitled to attend the authorisation meeting. Annexed and marked STG-8 is a copy of the registration list that ARCHAEO prepared. The properties for the spreadsheet show that it was created on 16 March 2016 and last printed on 5 April 2016.

24.    Once the registration list was prepared, ARCHAEO emailed relevant Applicants with the names and locations of the people who had registered in their family group. Annexed and marked STG-9 is a copy of one such email from Susanne Covill of ARCHAEO to Craig Dallen dated 8 April 2016.

25.    In addition to information about the family groups and ancestry of registered attendees, ARCHAEO obtained information from the registered attendees about their transport and accommodation needs for attendance at the authorisation meeting. ARCHAEO had multiple telephone calls with most of the registered attendees to confirm their family group and W&J ancestor or ancestors, contact details and transport and accommodation needs.

26.    ARCHAEO ceased to take registrations for the authorisation meeting after the close of business on 4 April 2016. Some people called ARCHAEO after that date. I gave instructions to the ARCHAEO staff as to what they should say to people who had not registered by 4 April 2016 but called ARCHAEO after that date. My instruction was that they should say that ARCHAEO was not able to assist with booking travel and accommodation but that every W&J person was welcome to attend. I also instructed my staff to provide information regarding the date, time and place of the meeting and general information regarding the purpose of the meeting. I instructed my staff to inform people that it would be possible to register on the day of the authorisation meeting.

27.    For people who had registered on or before 4 April 2016 and who had provided information about their travel and accommodation needs, ARCHAEO booked and paid for travel and accommodation. Shortly after 4 April 2016, ARCHAEO prepared an estimate of the travel, accommodation and food allowance costs necessary for the authorisation meeting. That estimate was provided to Adani and Adani approved the estimate before any payments were made.

(Emphasis in original)

70    As to the events of the authorisation meeting itself, Mr Gall said in his affidavit that:

29.    I attended the authorisation meeting at the Maryborough City Hall on 16 April 2016. Around 6 other staff from ARCHAEO also attended the meeting. ARCHAEO’s main responsibility at the meeting was to ensure that each of the subcontractors understood and carried out their roles and generally to assist in ensuring that the meeting ran smoothly and safely.

30.    ARCHAEO was not responsible for registering attendees at the meeting. Staff from QSNTS were responsible for registering attendees at the meeting. Annexed and marked STG-10 is a copy of the signed registration sheet for the authorisation meeting. ARCHAEO did not prepare that registration sheet. However, as discussed above ARCHAEO had provided a register of expected attendees to QSNTS prior to the meeting.

31.    I was not present during most of the registration process. During the times when I was present, I observed that as each person was registered he or she was provided with a coloured armband. My understanding was that only people who had been issued with a coloured armband were entitled to participate in and vote at the meeting.

32.    Neither I nor any other staff from ARCHAEO took any active role in the authorisation meeting. At the commencement of the meeting, I stayed outside the meeting room but I could see into the meeting room. I saw the Welcome to Country from Malcolm Burns and Gemma Cronin, two representatives of the Butchulla Traditional Owners. I also saw the facilitator of the meeting, Darryl Pearce formally commence the meeting.

(Emphasis in original)

The evidence QSNTS adduced

71    For its part, QSNTS adduced evidence from Mr Smith, its CEO, and Mr Fahey, an anthropologist it employed as a Research Officer until March 2017. In his affidavit, Mr Smith said that he had been the CEO of QSNTS since 1 May 2008. He described how, in that capacity, he personally performed the certification functions of QSNTS as follows:

11.    As CEO of QSNTS I perform the certification functions within the organisation. That is, I consider the material provided, seek any other input I consider relevant or desirable, and, if I am of the opinion that the two limbs of s 203BE(5) NTA have been satisfied, issue a certificate to that effect.

72    He also detailed the history of the dealings between QSNTS and the W & J claim group as follows:

25.    QSNTS has been providing assistance to the W&J native title claim group since 12 September 2008. The provision of that assistance followed QSNTS assuming responsibility under the NTA for the Region formerly supported by the Gurang Land Council.

27.    QSNTS represented the W&J in relation to future act matters until mid-2011 at which time the Applicant for the NTDA retained external service providers for that work.

73    In February 2016, Mr Smith said he received a request for assistance from the lawyers then acting for the W & J claim group. He described that request in the following terms:

29.    On 19 February 2016 I received an email from Lara McQuaid of HWL Ebsworth enquiring into QSNTS’s usual requirements for the certification of an application to register ILUAs. The email went on to say; “ ... we would be pleased to discuss the matter with QSNTS further, including in relation to any further assistance QSNTS might be able to provide (for example in relation to notification of and registration of attendees at any proposed authorisation meeting”. I responded to that email on 19 February as follows:

QSNTS is able to certify the ILUA. As a general overview, we would require the following:

1. Overview of the consultation process;

2. Copies of the notices, maps, advertisements and general correspondence to the W&J People (QSNTS can assist with the mail-out using our database);

3. Copy of the meeting agenda and procedural resolutions (not the subject matter of the ILUA)

4. Authorisation meeting registration (QSNTS can undertake this function using our in house researchers and genealogy)

5. Minutes of the authorization meeting

6. A certification brief (essentially a brief outlining steps 1 to 5).

I will put all of this in a letter in due course and happy to discuss further.

74    With respect to this request, Mr Smith said (also at [29]):

I was aware from media reports and my interaction with members of the W&J claim people of the proposal by [Adani] to develop a very large coal mine on land claimed by the W&J and the controversy arising from that proposal and from a communication I received from QSNTS Deputy Principal Legal Officer, Andrea Olsen, I was aware that Ms McQuaid’s enquiry probably related to that project.

75    He added:

30    I was aware that the claim group had previously rejected a request to authorise an ILUA with [Adani] in 2014 and that the proposed development of the mine was the cause of significant unhappiness within part of the claim group while being favoured by another part of the W&J claim group. I was present at an authorisation meeting of the claim group in relation to the NTDA on 21 June 2015. Following the close of the native title claim group meeting, W&J members used the meeting venue to discuss the ILUA with representatives of Adani but all QSNTS staff left the meeting as (sic – at) this point as our business had concluded and the ILUA was not a matter that involved QSNTS.

76    Mr Smith described his involvement in the lead-up to the authorisation meeting on 16 April 2016 in the following terms:

31.    In the lead up to the 16 April 2016 authorisation meeting, I met with the QSNTS manager of Geospatial and Research Services, [Jeff] Harris, to discuss how assistance might be provided for meeting registration. Harris and I agreed that he should attend the meeting accompanying [Andrew] Fahey (who was well familiar with the native title claim group and persons in it) as well as another member of QSNTS’s research unit, Nicolas Daza (“Daza”), and two Community Relations Officers, Richard Sporne (“Sporne”) (who had been assigned to the W&J claim group from the time QSNTS started providing assistance to it) and Ron Fogarty (“Fogarty”). We discussed the need for there to be a rigorous process and for appropriate information and resources to be available to the QSNTS employees who were to attend the meeting while carrying out the registration process.

32.    On 14 April 2016 I wrote a letter beginning “Dear Chair” which I transmitted to Philip Hunter of HWL Ebsworth and asked Philip to ensure that it was read to the meeting. I note that the Record of Meeting at [85] notes that “Philip Hunter read a letter from QSNTS regarding its role at the meeting today, i.e. to do the registration and undertake its statutory function to certify the ILUA”. Annexed to this affidavit and marked KJS-1 is a true copy of that letter.

33.    In the time leading up to the authorisation meeting I met with Harris and Fahey and was told how they proposed that the registration process would be conducted. I was satisfied that the process was similar to that QSNTS typically uses at authorisation meetings in that it would be supervised by a researcher familiar with the claim group, genealogical data would be available if needed to assist in confirming an attendee’s descent line and that coloured wrist bands would be used to differentiate different categories of attendees.

(Emphasis in original)

77    After the 16 April 2016 authorisation meeting, Mr Smith said he became aware of various aspects of that meeting as follows:

34.    In the week after the meeting of 16 April 2016, I spoke with Harris, Fahey, Daza, Sporne and Fogarty. As a result of those conversations I formed a view that the meeting had been very well attended and was probably the largest meeting of people identifying as W&J; that the registration process had proceeded according to plan; and that the QSNTS staff had been assisted by members of the Applicant for the W&J NTDA who were able to apply their own knowledge of the identity of people wishing to register; that only one person who asserted native title rights and interests in the relevant area other than as a W&J person attended, that my staff had been inside the meeting room while the meeting was underway; and, that the meeting was orderly and well conducted and that votes had been accurately counted and recorded.

78    Finally, Mr Smith described the usual procedure he adopted in undertaking a certification of an ILUA and the process he followed with respect to the Adani ILUA as follows:

22.    It is my usual procedure to undertake a review of a range of material to assist in my consideration of whether the requirements of ss 203BE(5)(a) and 203BE(5)(b) have been satisfied, including a geospatial overlap analysis of the ILUA area; sighting the public notices before publication; a memorandum from the claim lawyer detailing all efforts made to satisfy ss 203BE(5)(a) and 203BE(5)(b). I expect the memorandum to include, all copies of advertisements, mail-outs, radio advertising and other notification efforts, a full copy of the meeting minutes and resolutions passed to satisfy ss 203BE(5)(a) and 203BE(5)(b).

36.    On 20 April 2016 I received a request to certify an application to register the ILUA that had been authorised at the meeting of 16 April 2016 along with a brief of material relating to the notification of the meeting, attendance at the meeting and the decisions of the meeting. On 22 April 2016 I received an email from Lara McQuaid of HWL Ebsworth attaching draft authorisation meeting minutes. That material is at TAB 9 of the agreed bundle of documents in this matter.

37.    Having regard to my internal conversations with QSNTS staff, who attended the authorisation meeting, about the registration process for the meeting and the conduct of the meeting and after a consideration of the brief of material provided with the certification request, I formed an opinion that:

(a)    all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and

(b)    all the persons so identified have authorised the making of the agreement,

and I issued a certificate accordingly.

(Emphasis in original)

79    In cross-examination, Mr Smith said he had “only very vague conversations” with Mr Fahey in the pre-registration stage to the 16 April 2016 authorisation meeting and conversations of a general nature after that meeting. He said there was “nothing out of the ordinary” in any of those discussions. Notably, Mr Smith was not asked any questions specifically directed to the contents of the Certificate or the opinions he had expressed in it.

80    As is already mentioned above, Mr Fahey was employed by QSNTS until March 2017. He said in his affidavit that he commenced his employment with QSNTS on 22 March 2010. He described his qualifications as follows:

3.    … I held a Bachelor of Arts with an extended major in Aboriginal and Torres Strait Islander Studies and partial qualification in Archaeology. I was also undertaking studies toward an Honours in Anthropology. I was subsequently awarded Honours First Class in Anthropology in 2017.

81    As to his knowledge of, and experience with, the Wangan and Jagalingou People and their claim group, Mr Fahey said:

4.    I worked on the QUD85/2004 Wangan & Jagalingou Peoples native title determination application (“W&J claim”) for approximately 4.5 years. During that time, I undertook research, including genealogical research, related to how the contemporary members of the W&J claim group descend from each of the W&J apical ancestors who have known descendants.

(Emphasis in original)

82    Mr Fahey was involved in organising the 16 April 2016 authorisation meeting. In his affidavit, he described his role in the following terms:

7.    My role at the authorisation meeting was to supervise the registration process of persons wishing to attend the meeting. Assisting me with this task were QSNTS staff members, Jeff Harris (Manager - Geospatial and Research) (“Harris”), Nicolas Daza (Research Administration Officer) (“Daza”), Richard Sporne (Community Relations Officer) (“Sporne”) and Ron Fogarty (Community Relations Officer) (“Fogarty”). I was assigned the task of supervising the registration process because of my experience working on the W&J claim and my knowledge of the family descent groups that comprise the W&J claim group. Sporne was selected because he was the QSNTS Community Relations Officer assigned to the W&J claim and because of the longevity of his role as a Community Relations Officer assigned to the W&J claim, and his personal familiarity, knowledge and understanding of the W&J claim group and its constituent family descent groups.

8.    Prior to, and in preparation for, the authorisation meeting, I produced separate folders containing registration sheets. There were 14 registration folders, each being allocated to one (1) of the 14 apical ancestor as described in the W&J claim. There was an additional registration folder for people of ‘unknown descent’ who hold or may hold native title in the ILUA area. This folder was created to record either attendance by individuals who had pre-registered to attend the meeting but had not identified which apical ancestor they claimed descent from, or to record attendance by individuals who were not known to be a member of the W&J claim group at the time of preparing the registration forms.

83    The genealogical database maintained by QSNTS was described by Mr Fahey in the following terms:

9.    During my employment at QSNTS research staff working on the W&J claim maintained a genealogical database of W&J people using computer software called the ‘Family Historian. In general terms, the database tracks the descendants of a named apical ancestors from each particular ancestor to the current adult generation and, in some cases, those persons’ children. The type of information that is recorded in this software includes: the names (including Aboriginal names, alternate names and nicknames) of individuals; the date and place of birth of people (when possible); places of association of people (when possible); place and date of death (when possible); group of association e.g. Wangan (when possible); and marriages and other relationships that have not been recorded as official marriages. All of this information is collected based on government documents, archival information and oral history.

10.    The data in the genealogical database for the W&J claim was obtained either by consultants or various QSNTS research officers, including myself. Who have worked on the W&J claim. Data in the genealogical database is also derived from reports prepared by the Community and Personal History (“CPH’) section of the Queensland Department of Aboriginal and Torres Strait Islander Partnerships (‘DATSIP’) and from early ethnographic writings. In the case of the W&J claim, an external consultant was contracted to produce a genealogical report and data from that report was used as the basis of the W&J genealogical database. Whilst I was employed at QSNTS the database was regularly updated as new information came to QSNTS and was verified through research or by known W&J claimants.

11.    The genealogical database was prepared by Dr Kevin Mayo, a consultant anthropologist specialising in genealogical research, who undertook that work as part of a genealogical study of the W&J claim group commissioned by the QSNTS lawyer for W&J. That database was provided to QSNTS and became the foundation of the W&J genealogical database. Dr Mayo completed an initial genealogical report, which was dated around 2013 and another report draft in 2014 but, in my recollection, was finalised in 2016. I assisted Dr Mayo in the research for the second report, but ultimately Dr Mayo reviewed the report and then either slightly amended or adopted my work as the consultant’s own opinion so I was not a joint author of that report.

12.    Dr Mayo then provided that genealogical database to W&J claim team at QSNTS. The genealogical database included the apical ancestors and several generations descending from them and, I know, was based almost exclusively on records obtained from the Queensland State Archives (“QSA”). From my own experience, I know that all materials contained in the reports prepared by the CPH section of DATSIP comes from QSA. From my own experience, I am aware that CPH undertakes searching and compilation which is enhanced by having access to restricted records that are otherwise unavailable to the public or other recorded sources available in QSA.

13.    To build on the genealogical database, I conducted interviews over several years from about 2014 during the course of my general duties when working on the W&J claim with older or knowledgeable members of families across the W&J claim group to fill in the more contemporary generations into the database, but I did not alter any of the existing information that the consultant had provided. I only added to it.

(Emphasis in original)

84    As to the QSNTS contacts database, Mr Fahey said:

14.    Whilst I was employed as a Research Officer with QSNTS, I know that QSNTS, also maintained a contacts database with the names of people, their contact details and native title claim groups with which they affiliate. I am aware that the information contained in the contacts database was primarily derived from registration sheets used at meetings of native title claim groups. Those sheets usually recorded a name, address, phone number, email address and the apical ancestor(s) from whom the person descends. I am also aware that the database was regularly updated, particularly after meetings of claim groups.

85    Mr Fahey described the pre-registration process for the 16 April 2016 authorisation meeting and his involvement with ARCHAEO for that purpose as follows:

16.    I understand that ARCHAEO was engaged to compile a list of people who wished to pre-register their intention to attend the authorisation meeting.

17.    I received an electronic copy of the pre-registration list from ARCHAEO. The information on the list included each individual’s first and last names, contact information and the apical ancestor the person claimed to be descended from (from those apical ancestors listed on the W&J Application Form 1).

18.    I checked the names on the list to verify, based on my knowledge and information available to me in my role at QSNTS working on the W&J claim, including information in the QSNTS W&J genealogical database and the contact database, whether or not the people appearing on the list were likely to be bona fide members of the W&J claim group. In relation to those people whom I could not verify, I queried members of the W&J Applicant (particularly those who were from the same family descent line or ancestor). Where verification still could not be achieved (in only a very small number of cases) I attempted to contact the individual on the list to speak with them.

19.    After completing the process described at [18] above, there were only six (6) individuals on the list who could not be verified as being members of the W&J claim group and had not registered the apical ancestor from whom they claimed descent. One of these individuals, Erica Walker, was already known to me as being a person that was not descended from one of the W&J apical ancestors. However, I was aware that she claimed to have native title rights within the W&J Application area, and therefore the ILUA area. Erica Walker’s proposed attendance at the authorisation meeting was to be recorded through a separate process which I will describe in greater detail below. The remaining individuals whose bona fides I could not verify did not attend the authorisation meeting as far as I am aware.

20.    In each registration folder referred to in [8] herein, I included registration sheets recording the details of individuals who had pre-registered for the meeting. These registration sheets included each individual’s first and last names, their apical ancestor and registered home location, and a space for each individual to sign beside their name to confirm their attendance at the meeting. Behind these pre-populated sheets were blank registration forms requiring the same information as that provided for in the pre-populated sheets. These additional blank sheets were intended to be used if an individual had not pre-registered their interest with ARCHAEO.

86    As to his involvement in the 16 April 2016 authorisation meeting itself, Mr Fahey said:

22.    I observed that on the day of the authorisation meeting the entrance to the venue was set up so that people could not enter the meeting venue without first registering their attendance with one of the QSNTS staff members as described at [7] herein. The QSNTS staff and I set up the registration point as a long desk so that the overall process was always visible to me and we could easily communicate with each other.

23.    Both Daza and I had with us at the registration point for the 16 April 2016 meeting, laptop computers which contained the W&J genealogical database maintained by QSNTS. The genealogical database was easily accessible on the laptop computers for consulting. I also provided folders with hard-copies of the genealogies for the W&J claim to all QSNTS staff assisting with the registration process referred to at [7]. Prior to the authorisation meeting I had explained to the QSNTS staff assisting with the registration process how to read and interpret the genealogies to identify people listed on them who are descended from the W&J apical ancestors. I also provided the assisting QSNTS staff with hard copies of the W&J genealogies to aid in the registration process. I also explained that the genealogies could be consulted to help verify attendees’ links to W&J apical ancestors if required. I further explained that if the QSNTS staff assisting with registration felt that they could not verify a person’s identity based on the genealogies, or for any other reason, I should be consulted and that they not register the person concerned and instead refer that person to speak with me to help substantiate their claim to being a member of the W&J claim group.

24.    In attendance at the registration desk was myself, the other QSNTS staff referred to at [7], and members of the W&J Applicant, namely Les Tilley, Norman Johnson Jnr., Patrick Malone, Priscilla Gyemore, Gwendoline Fisher, Craig Dallen and Irene Simpson. The remaining members of the W&J Applicant were not present at the authorisation meeting. The members of the W&J Applicant who were present helped to verify the identity of individuals attending the meeting which they were able to do on the basis of their family relationships to members of the W&J claim group members or their personal familiarity with members of the W&J claim group.

25.    I observed the following process at the registration desk. As individuals approached the registration desk at the authorisation meeting on 16 April 2016, they were organised into an orderly line with the assistance of security staff employed to help at the meeting. Upon reaching the registration desk individuals were then asked to identify themselves and which apical ancestor and/or which family they were descended from. Based on their answers they were directed to the line for the relevant registration folder. Each individual was asked by a QSNTS staff member whether they had pre-registered their attendance with ARCHAEO. Where an individual had pre-registered with ARCHAEO, their name was checked against the pre-populated registration sheets, and if their name was on one of those sheets they signed beside the relevant pre-populated entry on the registration sheet.

26.    If the individual could not locate their name or had not pre-registered, and that person could not be located on the genealogies for the W&J claim group they were directed to speak with me or one or more members of the W&J Applicant group to verify their identity and membership of the W&J claim group. If a member/members of the W&J Applicant or I were satisfied that the individual was a descendant of one or more of the apical ancestors described on the W&J claim, that individual was asked to fill out their details on a blank registration sheet in the folder labelled with the apical ancestor from whom they were descended.

27.    The members of the W&J Applicant who were present at the authorisation meeting also identified individuals and directed them to the appropriate registration folder whilst QSNTS staff supervised their registration. Individuals were asked to record their name, contact information and a signature on the registration sheet. The individuals did not have to record their apical ancestor because there was a separate named folder for each apical ancestor, and the individuals were directed by QSNTS staff as to which folder to use.

28.    As part of the registration process, individuals who were entitled to enter the meeting venue were issued with a wristband. Green armbands were issued to those persons who registered as members of the W&J claim group; red wristbands were issued to those persons who asserted they may hold native title rights within the ILUA area; and blue wristbands were issued to family members of attendees at the meeting who were not a member of the W&J claim group and were not entitled to participate in the substantive business of the authorisation meeting or vote on any resolutions. All of the armbands used had unique serial numbers on them which enabled QSNTS staff to record how many were provided on the day of the meeting.

29.    I made it clear to all of the QSNTS staff assisting at the registration desk as well as the security staff assisting with the meeting that all wristbands were to be kept in a secure location and which was to be supervised by QSNTS or security staff at all times. I also made it clear to the QSNTS staff assisting with the registration that wristbands which entitled a person to vote (green or red coloured) were to be fastened to an individual’s wrist once they had completed registration and were not to be provided to people in a loose or unfastened fashion. I gave this instruction so that wristbands used to identify people entitled to vote on resolutions in the meeting were not able to be given to individuals who had not registered their attendance appropriately. To the best of my knowledge including as a result of my own observations, all of these instructions were strictly followed.

30.    Individuals wearing blue wristbands were not allowed to vote on any of the motions put to the group at the authorisation meeting. For this reason, there was no formal process for providing the blue wristbands beyond a verbal query about why the individual wanted a blue wristband and their connection to those attending the meeting.

31.    If an individual’s identity or connection to the claim group was uncertain, that individual was directed to speak with me and one or more members of the W&J Applicant group. If myself and the W&J Applicant were satisfied that the individual was descended from one or more of the W&J apical ancestors, that individual was registered accordingly.

32.    I recall that there was only one person who did not satisfy any of the requirements for registration being a non-indigenous member of the local community who wanted to see what was happening on the day. I advised this person that it was a native title meeting and he was subsequently turned away from the venue.

33.    Further, only one person, Erica Walker, who was not a member of the W&J claim group but claimed to hold native title rights in the ILUA area, attended the meeting. Erica Walker was registered in a folder for people from ‘unknown’ apical ancestors and I provided her with a red wristband and admitted her to the meeting. She was the only individual at the authorisation meeting provided with a red wristband and the only individual at the authorisation meeting registered in a folder of people descended from unknown apical ancestors.

34.    The QSNTS staff assisting at the authorisation meeting and I remained close to the entrance of the venue throughout the pre-lunch stages of the meeting on 16 April 2016 day so that individuals who arrived after the meeting had commenced had the opportunity to register and attend the meeting. Registration remained open until the conclusion of lunch. After this time the authorisation meeting reconvened after the lunch adjournment in order to vote on a series of proposed resolutions. Registration was finalised before the authorisation meeting reconvened to consider these proposed resolutions. I recall that when the authorisation meeting reconvened the entrances to the meeting room were closed and manned by venue security staff. I gave clear instructions to QSNTS staff that the attendance registers were to be kept in a secure location under the watch of QSNTS staff at all times, and to the best of my knowledge this instruction was strictly followed.

35.    Following the completion of registration, but before the commencement of voting, all of the registration folders were collected together and the number of attendees tallied and compared against the number and type of wristbands provided. These two tallies agreed with each other. Consequently, I am confident that neither green or red wristbands were not provided to people who did not register their attendance appropriately.

36.    After the tally referred to in the preceding paragraph was completed, all of the registration folders were collected and stored securely before being brought back to QSNTS’ offices in Brisbane, where to the best of my knowledge they remain in secure storage. Annexed and marked “AF1” to this affidavit is a true and correct copy of the separate registration folders and the registration sheets contained therein. Where confidential address details were provided by meeting attendees, these details have been redacted.

37.    Other QSNTS staff and I who attended the authorisation meeting remained on the premises for the rest of the authorisation meeting and observed the meeting process.

(Emphasis in original)

87    Finally, after the 16 April 2016 authorisation meeting, Mr Fahey said he returned to the QSNTS office and had a discussion with Mr Smith as follows:

38.    After I returned to the office in the week after the meeting I spoke to Mr Smith about the registration process and I explained to him that it had been conducted according to our plan and process and that there had been no significant problems or disruption to the process. I also reported to Mr Smith that from my observations the meeting itself appeared to be orderly and well conducted.

88    In cross-examination, Mr Fahey said he did not know how many people were recorded on the QSNTS contacts database. However, he confirmed that he had access to that database for the purpose of the pre-registration stage to the 16 April 2016 authorisation meeting. Similarly, he said he did not know how many people were recorded on the QSNTS genealogical database. He also said that he had checked a number of people who applied for pre-registration for the 16 April 2016 authorisation meeting against both the QSNTS genealogical database and with a number of members of the W & J Applicant, however, he said he did not recall how many. He said that the process he employed was to check the list of pre-registrants referred to him by ARCHAEO against the QSNTS genealogical database and with the QSNTS contacts database and then, if he could not locate a person on one of those databases, he contacted a member of the W & J Applicant to check the person’s credentials with him or her. In the latter process, he said he spoke to five or six members of the W & J Applicant and two or three senior members of Wangan and Jagalingou descent groups. At the end of the pre-registration process, he said there were eight or nine people left who were not verified by one or other of these checking methods.

89    As to the process that was followed at the 16 April 2016 authorisation meeting itself, Mr Fahey said that, if a person was pre-registered and they attended at the meeting, their name was ticked off against the pre-registration lists and no further checking was done. He said that 56 or 57 people attended at the meeting who were not on the pre-registration lists and those people were verified before the meeting commenced by checking with the genealogical database, or checking with a member of the W & J Applicant. He said no cross-checking was done with the contacts database because they did not have that database with them at the meeting.

90    In his discussions with Mr Smith both before, and after, the 16 April 2016 authorisation meeting, Mr Fahey said that he discussed the pre-registration process for the meeting with him. He said that he did not tell Mr Smith that 56 or 57 people had attended at the meeting who were not recorded on the pre-registration lists.

91    When asked whether there was a number of people at the authorisation meeting who had not previously attended any meeting of the W & J claim group, Mr Fahey said: “I couldn’t comment on that. In order to answer that question, I would need to have an encyclopaedic and forensic knowledge of every person who has ever attended a W & J authorisation meeting and that’s just simply beyond my means.”

92    As to the instructions given to QSNTS staff about the verification process that was to be undertaken prior to the 16 April 2016 authorisation meeting, Mr Fahey said:

… The process was largely genealogical in nature because, to the best of my knowledge from working on the W & J Claim Group, being familiar with the expert opinion that was provided in relation to the W & J claim as well as the form 1 for the W & J native title determination application, membership of the group was via descent not via history of attending authorisation meetings or simply by identification without genealogical links of some sort.

93    When it was put to him that the QSNTS staff was not directed “to inquire as to whether people had a history of identifying with other groups that weren’t Wangan and Jagalingou”, Mr Fahey said: “That’s correct. No one, as far as I know, deliberately asked those questions, nor did I urge or instruct any of the other assisting staff to ask questions of that sort of nature”.

94    Finally, Mr Fahey said that the only person who was not allowed to attend the 16 April 2016 authorisation meeting was a non-Indigenous spectator who turned up at the meeting. He said no one was allowed to attend the meeting who could not be verified by reference to the genealogical database or one of the W & J Applicants. Accordingly, he agreed that if someone attended who was verified to be on the pre-registration lists, or, if not, was verified prior to the commencement of the meeting, no further questions were asked of them.

THE RELEVANT STATUTORY PROVISIONS

95    In this section of these reasons, I propose to review the three provisions of the NTA that are at the centre of this proceeding and a number of related provisions. Since this involves an exercise in statutory construction, it is well to recall the principles relating to such an exercise. In essence, they require consideration of the statutory text, its statutory context and the purpose of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41, Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]–[26] and Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]–[23].

96    It is convenient to begin with the latter. The primary purpose of the NTA is to recognise and protect native title. That is clear from the objects stated in its introductory sections: ss 3, 4, 10 and 11. Specifically, s 4(1) provides: “This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.” Similarly, s 10 provides: “Native title is recognised, and protected, in accordance with this Act”; and s 11(1): “Native title is not able to be extinguished contrary to this Act.” The “native title” to which all these provisions refer is defined in s 223 of the NTA.

97    Section 11(1) is particularly important in this matter. As the plurality judgment observed in The State of Western Australia v The Commonwealth (1995) 183 CLR 373 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ), this provision has the effect of establishing “an exclusive code” which, among other things, outlines those exceptional circumstances in which native title may be extinguished contrary to that code. Their Honours said (at 453):

… The protection given to native title by this provision removes its vulnerability to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. By that prima facie sterilisation, s 11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title.

98    The ILUA provisions of the NTA are an important part of that exclusive code. In QGC Pty Limited v Bygrave (No 2) (2010) 189 FCR 412; [2010] FCA 1019, I outlined the purpose of those provisions as follows (at [59]):

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

99    The scheme of the ILUA provisions of the NTA is also important when considering the statutory context to the three provisions of the NTA that are at the centre of this proceeding. The most convenient way to describe that scheme is to quote from my decision in QGC Pty Ltd v Bygrave (No 3) (2011) 199 FCR 94; [2011] FCA 1457 (Bygrave No 3) at [23]–[30] as follows:

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

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

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

…

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

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

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

30    Any party to an area agreement may, if all of the other parties to the agreement agree, apply to the Registrar for the agreement to be registered on the Register (s 24CG(1)): Fesl at [21] …

(Emphasis added)

Paragraphs [27]–[30] above are pertinent because the Adani ILUA was an area ILUA as defined in Subdivision C.

100    The last-mentioned section above (s 24CG) is one of the three provisions of the NTA that is at the centre of this proceeding. It provides as follow:

Application

(1)     Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.

Things accompanying application

(2)    The application must be accompanied by a copy of the agreement and any other prescribed documents or information.

Certificate or statement to accompany application in certain areas

(3)    Also, the application must either:

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

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

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

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

Note:    The word authorise is defined in 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.

Registrar may assist parties

(4)    The Registrar may give such assistance as he or she considers reasonable to help a party to the agreement prepare the application and accompanying material.

Certification not affected if Aboriginal/Torres Strait Islander body subsequently ceases to be recognised

(5)     To avoid doubt, the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected merely because, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect.

101    This section has a central role in this proceeding because the Certificate allowed Adani to comply with s 24CG(3)(a) above. It, in turn, provided the means by which the Registrar could be satisfied that the identification process referred to in s 203BE(5)(a) below had duly occurred and the consent to the agreement of all the persons so identified had been properly obtained.

102    Later in Bygrave No 3, I outlined the process that ensues once an application of the kind mentioned in s 24CG(1) is made to the Registrar (at [33]–[36]), as follows:

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

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

35    … If [the ILUA is certified] … the notice of the agreement under s 24CH [has to include] a notice under s 24CH(2)(d)(i) to the effect that:

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

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

(Emphasis added)

103    As is mentioned in s 24CG(3)(a) above, the Certificate was issued pursuant to QSNTS’ functions under s 203BE(1)(b) of the NTA. Section 203BE is the second of the three provisions of the NTA that is at the centre of this proceeding. It relevantly provides:

General

(1)    The certification functions of a representative body are:

…

(b)    to certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area for which the body is the representative body.

…

Certification of applications for registration of indigenous land use agreements

(5)    A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:

(a)    all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and

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

Note:    Section 251A deals with authority to make the agreement.

Statement to be included in certifications of applications for registration of indigenous land use agreements

(6)    A certification of an application for registration of an indigenous land use agreement by a representative body must:

(a)    include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (5)(a) and (b) have been met; and

(b)    briefly set out the body’s reasons for being of that opinion.

104    It is convenient to digress at this point to identify how QSNTS’ certification function relates to its other functions as a native title representative body under Part 11 of the NTA. Seven such functions are described in s 203B(1) as follows:

(a)    the facilitation and assistance functions referred to in section 203BB;

(b)    the certification functions referred to in section 203BE;

(c)    the dispute resolution functions referred to in section 203BF;

(d)    the notification functions referred to in section 203BG;

(e)    the agreement making function referred to in section 203BH;

(f)    the internal review functions referred to in section 203BI;

(g)    the functions referred to in section 203BJ and such other functions as are conferred on representative bodies by this Act.

105    Notably for the purposes of this matter, the performance of these functions is expressed in obligatory terms in s 203BA(1). That section requires that a native title representative body “must use its best efforts to perform its functions in a timely manner”.

106    The manner in which these various functions interact to facilitate the efficient administration of the NTA was underscored by Barker J in MT (deceased) v State of Western Australia [2013] FCA 1302 (MT v Western Australia) as follows (at [36]–[43]):

36    By s 203BA(1), a representative body must use its best efforts to perform its functions in a timely manner, particular in respect of matters affected by the time limits under the Act and elsewhere. By s 203BA(2), a representative body must perform its functions in a manner that amongst other things maintains organisational structures and administrative processes that promote the satisfactory representation by the body of native title holders and persons who may hold native title in the area for which it is the representative body.

37    By s 203BB(1)(a), a representative body has the function to research and prepare native title applications and to facilitate research into preparation of and making of native title applications.

38    By s 203BC(1)(a), a representative body in performing its facilitation and assistance functions in relation to any matter must consult with, and have regard to, the interests of any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter.

39    By s 203BE(1)(a), a representative body has the function to certify in writing applications for determination of native title.

40    By s 203BF(1)(a), it has a function to assist in promoting agreement in its constituents about the making of native title applications or the conduct of consultations, mediations, negotiations or proceedings about native title applications, future acts, indigenous land use agreements, rights of access and the like under the NTA.

41    Under s 203BH(1), a representative body has the function to be a party to indigenous land use agreements.

42    It may be seen from these briefly stated relevant functions that … a designated native title representative body, has the significant responsibility to inquire into and ascertain who relevant native title holders might be in order to facilitate the efficient administration of the NTA.

43    It may be expected that, in the performance of its responsibilities under the NTA, a native title representative body will necessarily make informed and responsible decisions, but decisions nonetheless that do not always find favour with all persons who may be the holders or potential holders or claimed holders of native title within the representative body’s region; as is shown to be the case here.

107    For the purposes of this matter, there are two other important functions of a native title representative body that were not mentioned in MT v Western Australia above. They appear in ss 203BJ(b) and (d) (the “other functions” section), as follows:

In addition to the functions referred to in sections 203BB to 203BI, a representative body must:

…

(b)    as far as is reasonably practicable, identify persons who may hold native title in the area for which the body is the representative body; and

…

(d)    as far as is reasonably practicable, inform such of the following as the representative body knows are, in relation to the area:

(i)    registered native title bodies corporate;

(ii)    native title holders;

(iii)    persons who may hold native title;

of any matter that the representative body considers may relate to, or may have an impact upon, native title in the area; and

…

108    Returning to s 203BE, first, it is to be noted that the introductory words to sub-ss (5) are, like s 203BA(1) above, expressed in obligatory terms. They place, what is in effect, a negative restriction on the obligatory exercise of a native title representative body’s certification function. They do that by specifying that a native title representative body “must not certify under paragraph (1)(b) an application for registration of an [ILUA]” unless it holds opinions about the matters described in sub-ss (5)(a) and (b).

109    When one turns to the text of s 203BE(5)(a), it can be seen that it revolves around the identification of a particular group of persons. The criterion for that identification is whether those persons “hold or may hold native title in relation to land or waters in the area covered by the agreement”. By its terms, the section requires the native title representative body to be of the opinion that “reasonable efforts” have been made to ensure that all those persons have been identified. Hence, the critical matter upon which the opinion must be held under s 203BE(5)(a) is whether everyone falling into this category of people has been identified.

110    The expression “reasonable” plainly introduces an objective element to the assessment of the identification efforts undertaken. As for the word “all”, in Bygrave No 3 I concluded (at [99]) that, in its second use, it:

must be referring to persons of Aboriginal or Torres Strait Islander descent because it is only those persons who can hold native title rights and interests under the Act … [and] … in this context, [it] is to be given its ordinary meaning which is: “the whole of … any; any whatever … the whole quantity or amount”.

111    There is little difficulty with the first part of the expression “who hold or may hold native title”. It refers to any native title holders as defined in s 224. On this aspect, I interpose to note that it was undisputed that there were no such native title holders in the area covered by the Adani ILUA. Hence, I have, in these reasons, focused on the second part of this expression, namely those who “may hold native title”. As for that part, I respectfully agree with the reasoning of White J in Bright v Northern Land Council [2018] FCA 752 (Bright) that the word “may” introduces an element of objectivity. His Honour expressed that conclusion as follows (at [169]–[170]):

169    In my opinion, all these matters point against the word “may” in the term “who … may hold native title” being used in the sense of mere possibility, so as to encompass persons for whom there is a theoretic possibility that they may hold native title. Instead, it seems more natural to understand the term as referring to persons who, although not yet recognised, should be regarded as potential native title holders. An element of objectivity is involved. The person should be regarded as one who may hold native title because of some known characteristic concerning them. Mere assertion will be insufficient.

170    Thus, I consider the expression “who hold or may hold native title” should be construed as though it read “who hold or, reasonably considered, may hold native title”. It follows that I agree with the opinion of Reeves J in QGC No 3 that the term “may hold” encompasses those in respect of whom there is a reasonable basis for concluding that they may hold native title in the area. There was no error by the Delegate in adopting that approach.

(Emphasis in original)

112    QGC No 3 is the same judgment as Bygrave No 3. My opinion in Bygrave No 3 to which his Honour was there referring had another aspect to it that has some significance in this matter. It was that the expression “hold or may hold native title” had an expansive and inclusive meaning as follows (at [101]):

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

(Emphasis added)

113    These observations apply equally to ss 203BE(5)(a) and (b) because, with the exception of the inclusion of the words in brackets in s 24CG(3)(b)(i) “including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area”, ss 24CG(3)(b)(i) and (ii) are substantially identical in their terms to ss 203BE(5)(a) and (b) respectively. As a consequence, most of the parties in this matter referred to the observations above in their closing submissions.

114    There is a number of other aspects of the text of s 203BE(5)(a) that bear noting. First, by its terms, that sub-section does not expressly require the native title representative body to make the reasonable efforts of identification itself, and nor is it expressly required to express an opinion on whether the persons concerned have been notified about the existence of the agreement concerned. However, given the other functions of a native title representative body mentioned above (see at [108]), it can be inferred that the native title representative body for the area covered by an agreement will have already taken “reasonably practicable” measures to identify the persons in that area who may hold native title and inform them, among others, of the existence of any agreement that may have an impact on their native title. In this respect there is an obvious intersection between a native title representative body’s certification function and the two “other functions” it is required to perform, as mentioned above.

115    Turning then to the text of s 203BE(5)(b), by its terms, it only requires the native title representative body concerned to hold an opinion about whether the persons identified by the reasonable efforts mentioned in s 203BE(5)(a) “have authorised the making of the agreement”. The word “authorised” takes one to s 251A because, as the note below s 203BE(5)(b) indicates, s 251A deals with “the authority to make the agreement”.

116    From the abovementioned features of s 203BE(5)(a) and (b), it can be seen that the primary purpose of s 203BE(5) is to ensure that all those indigenous persons whose native title could be adversely affected by a proposed ILUA are identified and given an opportunity to participate in the process by which that ILUA is authorised, or consented to. These provisions do that by requiring that the native title representative body certifying the application for registration is satisfied that the identification process referred to above has duly occurred and the consent of all those persons has been properly obtained.

117    The involvement in this registration process of the native title representative body for the area in which the proposed ILUA is to operate provides an additional level of assurance to those persons. That is so because, as has already been mentioned above, the obligatory functions of a native title representative body include identifying persons who may hold native title in their representative area and informing them about any matter that may impact on that native title.

118    Section 251A(1) is the third of the three provisions of the NTA that is at the centre of this proceeding. It provides:

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

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

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

119    There is a number of aspects of the construction of this section that impact on the outcome of this matter. First, I agree with Logan J in Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150; [2008] FCA 1469 (at [60]) that one is compelled “to construe the reference in the preamble to s 251A to ‘persons holding native title’ as if it read ‘persons holding or who may hold native title’ …”.

120    Secondly, in Bygrave No 3, based on the observations of Branson J in Kemp v Native Title Registrar (2006) 153 FCR 38; [2006] FCA 939, and the text of s 24CG(3)(b) and s 251A, I concluded (at [90]–[92]) there were two distinct groupings of persons referred to in ss 24CG(3)(b) (cf 203BE(5): see at [112] above) and ss 251A(1)(a) and (b), each of which may hold different elements of the native title, or the native title rights and interests concerned. The first of those two distinct groupings of persons is described relatively broadly as “persons who hold or may hold native title in relation to land and waters” in the area concerned (s 24CG(3)(b)(i) (cf 203BE(5)(a)). The second grouping is described in relatively confined terms as “the persons who hold or may hold the common or group rights comprising the native title” (ss 251A(1)(a) and (b)). The broader scope of the first grouping can be seen from the absence of the definite article “the” before the words “persons” and “native title”, and the use of the broader expression “in relation to” when referring to the area of land and waters concerned. The more confined scope of the second grouping can be seen from the use of the definite article before each of the words or phrases “persons”, “common or group rights” and “native title”.

121    Thirdly, as to the different elements of native title I have mentioned above, it is first to be noted that the general reference to “native title” in the first expression encompasses the broader range of native title, or native title rights and interests, as defined in s 223(1) of the NTA. Importantly for present purposes, as well as including communal or group rights and interests, that definition also includes individual rights and certain statutory rights and interests that have replaced the common law rights and interests defined in s 223(1) (see s 233(3)). By comparison, the second expression is expressly confined to the “common or group rights” element of that definition. It thereby excludes the individual rights and the statutory rights and interests mentioned above to the extent that the latter do not relate to “common or group rights” (see Bygrave No 3 at [90]–[92]). Finally, the usage of the definite article mentioned above, further confines the second expression to “the” native title concerned (see Bygrave No 3 at [97]–[98] and [119]).

122    Fourthly, it is to be noted that the first grouping of persons mentioned above is the same grouping of persons as that referred to in the introductory words to s 24CG(3)(b)(ii) (cf 203BE(5)(b)) (“all of the persons so identified”); and it is the same grouping of persons referred to in the opening words of s 251A (“persons holding [or who may hold] native title in relation to”); and, finally, it is the same grouping of persons referred to in the words “the persons” at the end of s 251A(1)(a), and at the beginning of s 251A(1)(b) (“… the persons authorise the making of the agreement …” ). In contradistinction, the second grouping of persons mentioned above, namely that group of persons who “hold or may hold the common or group rights comprising the native title”, are the persons referred to in the body of s 251A(1)(a) and 251A(1)(b).

123    Self-evidently this second grouping will comprise a subgroup within the first grouping mentioned above. Assuming it is a registered claim group, as the W & J claim group is in this matter, it will also be a party to the proposed area ILUA (see s 24CD(2)(a)). Accordingly, and importantly for this matter, it will be the process of decision-making of that second grouping of persons that must be utilised to authorise the making of an agreement under s 251A. That is to say, if that group of persons has a process of decision-making under its traditional laws and customs, then the first grouping of persons (which will obviously include the second grouping) must authorise the making of the agreement in accordance with that process (s 251A(1)(a)). Alternatively, if that second group of persons does not have such a traditional decision-making process, the first grouping of persons must authorise the making of the agreement in accordance with a process of decision-making that is agreed to and adopted by the persons in that second group (see s 251A(1)(b)). Finally, these aspects of the text and context of s 251A indicate that the expression “hold or may hold the common or group rights comprising the native title” is to be given a confined and exclusive meaning (see Bygrave No 3 at [92] and [121]).

The scope and purpose of the three central provisions

124    From this review of the three provisions at the centre of this matter, it can be seen that these provisions act together to achieve various of the elements of the scheme of the ILUA provisions of the NTA mentioned earlier (at [95]). In particular, by providing that the relevant native title representative body is obliged (unless unable to form opinions about the matters in s 203BE(5)) to certify the application to register an agreement as an ILUA, s 24CG(3)(a) provides an element of certainty to the parties wishing to register such an agreement. It is to be noted that, in most cases, at least one of these parties will be a member of the native title group as defined in s 24CD(2).

125    As can be seen above, s 24CG(3)(a) is linked, in turn, to ss 203BE and 251A, which together operate to ensure that all the indigenous persons whose native title may be affected by the provisions of a proposed ILUA have been identified and given an opportunity to participate in deciding whether or not to consent to that agreement being made. The consent of all of these persons is very important in the scheme of the ILUA provisions of the NTA because, once the details of an ILUA are entered on the Register, it will be binding on them (ss 24EA and 24EB). In particular, they will be bound by any provisions of the ILUA, as registered, that consent to future acts that adversely affect any native title that they may hold in the land or waters it covers.

126    Finally, s 251A provides an additional measure of protection to a particular group of persons, namely those who may hold the common or group rights comprising the native title. It does that by providing that that group is to determine the decision-making process by which the agreement is authorised, or consented to. In the present matter, where it is undisputed that the Wangan and Jagalingou People have the only registered native title claim for the whole of the area covered by the Adani ILUA, that group is the W & J claim group. It follows that it fell to the W & J claim group to determine the decision-making process that had to be utilised by the broader group of persons mentioned above to authorise, or consent to, the Adani ILUA.

THE UNREASONABLENESS GROUND HAS NO MERIT

The unreasonableness ground as pleaded

127    With these observations in mind, I turn now to consider Ms Kemppi’s three grounds of challenge to the registration of the Adani ILUA, commencing with the unreasonableness ground (see at [4] above).

128    That ground was pleaded at [35] of the Fourth Further Amended Statement of Claim (the FASC), as follows:

The decision of [QSNTS] to issue the 203BE Certificate was legally unreasonable in that no reasonable representative body, aware of the matters pleaded in [34A], [34B], [34C], [34CA] and [34D], could hold the opinion set out in [34(a)] of this statement of claim.

129    The opinion set out at [34(a)] of the FASC is that expressed in part (a) of the Certificate (see at [34] above). Since that part corresponds to the opinion required by s 203BE(5)(a), it follows that this unreasonableness ground is confined to the opinion expressed under that subsection.

130    Five particulars were provided of the allegation in [35], one of which (particular (h)) Ms Kemppi accepted was a matter of law and therefore not a proper particular. The other four particulars were:

(a)    A reasonable representative body would not have so certified, on the information available to [QSNTS], in circumstances where large numbers of people not previously in the database maintained by [QSNTS] had attended and taken part in the 16 April 2016 authorisation meeting;

(b)    A reasonable representative body would not have so certified, on the information available to [QSNTS], in circumstances where large numbers of people who had not previously attended any properly advertised meetings of the members of the Wangan & Jagalingou Native Title Claim Group had attended and taken part in the 16 April 2016 authorisation meeting;

(d)    A reasonable representative body would not have so certified in the circumstances of paragraphs (a) and (b) of these particulars in circumstances where neither the resolutions nor the draft minutes of the meeting indicated the carrying out of any process by which the meeting could discuss and rule upon the claims of persons to Wangan & Jagalingou identity, particularly, those persons whose details were not in the database maintained by [QSNTS] and those persons who had not previously attended any properly advertised meetings of the members of the Wangan & Jagalingou Native Title Claim Group;

(f)    A reasonable representative body would not have so certified in circumstances where the registration process for the meeting did not involve requests for identification; did not involve any cross-checking of registrants against the database maintained by [QSNTS]; did not involve any questions as to whether the person identified as a member of the Wangan & Jagalingou People; did not involve any questions as to whether the person was accepted by the acknowledged body of Wangan & Jagalingou People as a member; and did not involve any process of questioning whether registrants identified as members of other Indigenous Peoples or whether they were members of any other Native Title Claim Group;

131    The knowledge pleaded at [34A]–[34D] of the FASC fell into a number of different categories. First, [34A] described the documents that were before Mr Smith and which he considered when he prepared the Certificate. It is unnecessary to set them out because they broadly correspond to the documents set out in the agreed facts (see at [32] above).

132    Thereafter, [34B] of the FASC and following purported to plead matters of which Mr Smith and, through him, QSNTS, was aware. It is difficult to see how any of these matters relate to the opinion identified above, nonetheless they are set out below.

133    The matters pleaded in [34B] of the FASC all concerned what occurred, or did not occur, at the 16 April 2016 authorisation meeting. They were as follows:

(a)    the 16 April 2016 authorisation meeting was conducted at the direction of only 7 of the 12 Applicant Members, namely, Patrick Malone, Irene White, Priscilla Gilmore (sic – Gyemore), Craig Dallen, Norman Johnson Jnr, Gwendoline Fisher and Les Tilley;

(b)    340 people claiming to be Wangan & Jagalingou people attended the 16 April 2016 authorisation meeting;

(c)    at least one person claiming to hold native title rights in the area to which the Project Agreement applies other than as a Wangan & Jagalingou person, Erica Walker, registered to attend and did attend and participate in the 16 April 2016 authorisation meeting;

(d)    the meeting procedures adopted for the 16 April 2016 authorisation meeting did not include a process by which the meeting could discuss and rule upon the claims of persons to Wangan & Jagalingou identity, particularly, whether persons who claimed to qualify by reference to descent from an apical ancestor, in fact, also had a history of identifying as a Wangan & Jagalingou people, and were in fact accepted by other members of the Wangan & Jagalingou people as so identifying;

(e)    the failure to have a process by which the meeting could discuss and rule upon the claims of persons to Wangan & Jagalingou identity set out in the preceding sub-paragraph was reflected by the circumstance that no resolution was made at the authorisation meeting confirming that the persons present who asserted Wangan & Jagalingou identity were members of the native title claim group for the Native Title Claim;

(f)    none of the draft minutes of or the resolutions passed at the 16 April 2016 authorisation meeting or any other document before, and considered by, Mr Smith evidenced any step taken to identify whether Ms Walker was a person who holds, or may hold, native title rights and interests in the area to which the Project Agreement applies;

(g)    representatives of [QSNTS] attended at the authorisation meeting and assisted with registration of attendees;

(h)    the 16 April 2016 authorisation meeting was asserted by those who had convened and conducted it to have been a meeting of persons who hold or may hold native title, convened for the purpose of securing agreement of persons who hold or may hold native title to the making of the Project Agreement and the “Ancillary Agreement” (as defined in the Project Agreement);

(i)    the 16 April 2016 authorisation meeting was not asserted by those who had convened and conducted it to have been a meeting of the Wangan & Jagalingou native title claim group or a meeting competent to make decisions authorising or directing the conduct of the Native Title Claim or the Applicant Members in respect of that claim.

134    The matters pleaded in [34C] of the FASC began by rehearsing the functions QSNTS had performed as a native title representative body generally, and specifically for the W & J claim group and then reverted to what had occurred, or not occurred, at the 16 April 2016 authorisation meeting, as follows:

As at 26 April 2016, when he issued the 203BE certificate, Mr Smith, through his existing position as chief executive of [QSNTS], and [QSNTS], itself, were also aware of the following matters:

(a)    [QSNTS] was the Native Title Service Provider funded under s.203FE of the Native Title Act 1993 (Cth) for the Southern and Western Queensland Region to perform all of the functions of a representative body;

(b)    the area of land and waters covered by the Project Agreement is wholly within the area for which [QSNTS] was funded to perform functions under the Native Title Act 1993 (Cth), the Southern and Western Queensland Region;

(c)    the only native title determination application in respect of the land and waters covered by the Project Agreement was the Native Title Claim;

(d)    [QSNTS] had been assisting members of the applicant in the Native Title Claim with aspects of that claim, as part of its facilitation and assistance functions pursuant to s.203BB (1) of the Native Title Act 1993 (Cth), including the holding of meetings of the Wangan & Jagalingou Claim Group since early in the claim process;

(e)    [QSNTS] had undertaken extensive anthropological and genealogical research in relation to the Native Title Claim and the area the subject of the Project Agreement;

(f)    [QSNTS] maintained a database of details concerning the identification of Wangan & Jagalingou people which had been continuously updated prior to the 16 April 2016 authorisation meeting;

(g)    the representatives of [QSNTS] who attended at the 16 April 2016 authorisation meeting to assist with the registration of attendees were assisted by members of [QSNTS’] in-house anthropological staff;

(h)    despite the matter pleaded in the preceding paragraph, [QSNTS’] anthropological and genealogical research and the contents of [QSNTS’] database concerning the identification of Wangan & Jagalingou people had not been made available to the persons who conducted the 16 April 2016 authorisation meeting and that research material and database were not used for the purpose of conducting the meeting;

(i)    despite the matters pleaded in sub-paragraph (g) of this paragraph of the statement of claim, people who attended the 16 April 2016 authorisation meeting were asked only their name and the apical ancestor through whom they claimed and they were not asked for identification, or corroboration or, otherwise vetted as identifying bona fide as members of the Wangan & Jagalingou People;

(j)    on its proper construction, the phrase “who may hold the common or group rights comprising the native title” in s.251A of the Native Title Act 1993 (Cth) referred to the group or groups of Aboriginal persons who had filed a native title determination application under part 3 of the Act and had that application duly registered under part 7 of the Act.

135    Paragraph [34CA] of the FASC set out the details of 11 different native title claim groups for whom QSNTS had, prior to 26 April 2016, performed its facilitation and assistance functions.

136    Finally, paragraph [34D] of the FASC set out the details of the facilitation and assistance functions QSNTS had performed for the W & J claim group. Having done so it, too, reverted to what had occurred, or not occurred, at the 16 April 2016 authorisation meeting, as follows:

As at 26 April 2016, when Mr Smith issued the 203BE certificate, the following information was known by [QSNTS] through its prior involvement in facilitating and assisting members of the applicant in the Native Title Claim (as pleaded in sub-paragraph 34C(d) of this statement of claim) and through the attendance of its representatives at the 16 April 2016 authorisation meeting and through its role in facilitating and assisting members of other Native Title Claim Groups in their native title determination applications including those pleaded in [34CA] and by Mr Smith, through his existing position as chief executive of [QSNTS]:

(a)    the meeting procedures adopted for previous meetings of the Wangan & Jagalingou Native Title Claim Group had included a process by which the meeting could discuss and rule upon the claims of persons to Wangan & Jagalingou identity, particularly, whether persons who claimed to qualify by reference to descent from an apical ancestor, were so descended and/or whether they, in fact, also had a history of identifying as a Wangan & Jagalingou people, and were in fact accepted by other members of the Wangan & Jagalingou people;

(b)    the meeting procedures adopted for previous meetings of the Wangan & Jagalingou Native Title Claim Group by which the meeting could discuss and rule upon the claims of persons to Wangan & Jagalingou identity as set out in the preceding sub-paragraph included the moving and passage of a resolution at those meetings confirming that the persons present who asserted Wangan & Jagalingou identity were members of the native title claim group for the Native Title Claim;

(c)    many more people attended the 16 April 2016 authorisation meeting claiming to be members of the Wangan & Jagalingou People and took part in the meeting purporting to be members of the Wangan & Jagalingou Native Title Claim Group than had attended previously properly advertised meetings of the members of the Wangan & Jagalingou Native Title Claim Group;

(d)    many of the people who attended the 16 April 2016 authorisation meeting claiming to be members of the Wangan & Jagalingou People and took part in the meeting purporting to be members of the Wangan & Jagalingou Native Title Claim Group were people whose information had not previously been recorded in the database of details concerning the identification of Wangan & Jagalingou people referred to in [34C(f)] of this statement of claim;

PARTICULARS

Approximately 60 per cent of those people attending the 16 April 2016 authorisation meeting who claimed to be members of the Wangan & Jagalingou people had not been recorded by [QSNTS] as attending any previous meeting of the Wangan & Jagalingou Native Title Claim group in respect of any aspect of the Native Title Claim.

(e)    a number of people who attended the authorisation [meeting] claiming to be members of the Wangan & Jagalingou People and took part in the meeting purporting to be members of the Wangan & Jagalingou Native Title Claim Group were people known to [QSNTS] as persons who claimed identity as members of other native title claim groups and as members of Indigenous Peoples whose identification as members of those other groups and peoples were inconsistent with their identification as members of the Wangan & Jagalingou People and as members of the Native Title Claim Group;

PARTICULARS

Such persons include:

(a)    Norman Johnson Jnr, who identifies as a Western Kangoulu person and other persons who identified as members of the Kangoulu People, attended the 16 April 2016 authorisation meeting and took part in the meeting on the basis that he was a member of the Wangan & Jagalingou Native Title Claim Group;

(b)    Marshall Saunders, Elgan Saunders and Russell Saunders, who identify as Gunggari People, attended the 16 April 2016 authorisation meeting and took part in the meeting on the basis that they were members of the Wangan & Jagalingou Native Title Claim Group;

(c)    Daniel Georgetown, Richard Sandow and Eric John Fisher, who identify as Bigambul People, attended the 16 April 2016 authorisation meeting and took part in the meeting on the basis that they were members of the Wangan & Jagalingou Native Title Claim Group;

(d)    Stuart White and Matthew Malone, who identify as Iman People, attended the 16 April 2016 authorisation meeting and took part in the meeting on the basis that he was a member of the Wangan & Jagalingou Native Title Claim Group;

(e)    Five members of the Button family; eight members of the MiMi family; one member of the Bligh family; and four members of the Bone family, all of whom identify as Wakka Wakka People, attended the 16 April 2016 authorisation meeting and took part in the meeting on the basis that they were members of the Wangan & Jagalingou Native Title Claim Group;

(f)    One member of the Georgetown family; four members of the Saunders family; four members of the Watson family; and one member of the Clevens family, all of whom identify as Bigambul people, attended the 16 April 2016 authorisation meeting and took part in the meeting on the basis that they were members of the Wangan & Jagalingou Native Title Claim Group;

(g)    Two members of the Cressbrook family, one member of the Alberts family, six members of the Langton family, three members of the Brown family; nine members of the Kirk family, two members of the White family, one member of the Toby family and three members of the Anderson family, all of whom identify as Iman People, attended the 16 April 2016 authorisation meeting and took part in the meeting on the basis that they were members of the Wangan & Jagalingou Native Title Claim Group;

(h)    One member of the Barnes family, who identify as the Koreng-Goreng language group, attended the 16 April 2016 authorisation meeting and took part in the meeting on the basis that they were members of the Wangan & Jagalingou Native Title Claim Group;

(i)    Two members of the Smallwood family, who identify as Birriah and Bindal Peoples, attended the 16 April 2016 authorisation meeting and took part in the meeting on the basis that they were members of the Wangan & Jagalingou Native Title Claim Group;

(j)    Ten members of the Thaiday family and seven members of the Ahwang family, who identify as Torres Strait Islander traditional owners, attended the 16 April 2016 authorisation meeting and took part in the meeting on the basis that they were members of the Wangan & Jagalingou Native Title Claim Group;

(k)    Two members of the Kina family who identify as Kabi Kabi People, attended the 16 April 2016 authorisation meeting and took part in the meeting on the basis that they were members of the Wangan & Jagalingou Native Title Claim Group;

(l)    Three members of the Blair family, who identify as Jinibara People, attended the 16 April 2016 authorisation meeting and took part in the meeting on the basis that they were members of the Wangan & Jagalingou Native Title Claim Group.

(f)    a number of people who attended the 16 April 2016 authorisation meeting claiming to be members of the Wangan & Jagalingou People and took part in the meeting purporting to be members of the Wangan & Jagalingou Native Title Claim Group were people known to [QSNTS] as persons who were not descendants of the apical ancestors of the Wangan & Jagalingou People and who did not identify as Wangan & Jagalingou People;

PARTICULARS

These people included:

(a)    Dawn Malone, who registered as a descendant of Charlie McAvoy but is not is a descendant of Charlie McAvoy having a grandmother who was a Gunggari woman and a grandfather who was a Kullilli Man;

(b)    two members of the Watson family;

(c)    members of the Fisher, Johnson and Bligh families from Cherbourg;

(d)    a daughter of Burra Bone who identifies as a Wakka Wakka person.

(g)    the “Persons Claiming to Hold Native Title” in the Native Title Claim, as shown in the form 1 native title determination application for the Native Title Claim and the extract of the Register of Native Title Claims for the Native Title Claim are described as “… made up of families whose members identify as Wangan and Jagalingou, in accordance with traditional laws acknowledged and traditional customs observed by them. … Membership of the native title group must be in accordance with traditional laws acknowledged and traditional customs observed by them …”.    

The relevant principles on “legal unreasonableness”

137    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li), the High Court held that a decision made by the Migration Review Tribunal to refuse an adjournment to an applicant for a student residence visa was unreasonable and had resulted in jurisdictional error. The vitiating “legal unreasonableness” was described in different ways, but to similar effect, in the three judgments in Li (see French CJ at [26] and [29], Hayne, Kiefel and Bell JJ at [63] and Gageler J at [88]–[90]). For example, in describing the essence of the principle and the range of circumstances to which it may apply, French CJ said (at [26]):

The rationality required by “the rules of reason” is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. They may be express statutory conditions or, in the case of the requirements of procedural fairness, implied conditions. Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account.

(Footnotes omitted)

On the importance of the scope and purpose of the statutory power being exercised, see also Hayne, Kiefel and Bell JJ at [73]–[74] and Gageler J at [109].

138    However, there are constraints on this form of unreasonableness review. Two of them were illuminated by Gageler J in his judgment. After observing (at [106]) that the label “Wednesbury unreasonableness” indicates “the special standard of unreasonableness which has become the criterion for judicial review of administrative discretion”, his Honour identified those constraints as stringency and the difficulty that arises when policy considerations are involved. He said (at [108]):

Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.

139    After drawing an analogy between judicial review and appellate review, his Honour made the following remarks about the difficulty in reviewing “state of satisfaction” decisions (at [111]):

It has nevertheless been observed that “in practice the comparative familiarity of an appellate court with judicial discretions and the usual confines of a judicial discretion make the appellate court more sensitive to an unreasonable exercise of discretion and more confident of its ability to detect error in its exercise”. That is because it is “harder to be satisfied that an administrative body has acted unreasonably, particularly when the administrative discretion is wide in its scope or is affected by policies of which the court has no experience”. Similar observations have been made as to the inability of a court “effectively” to review a state of satisfaction forming a pre-condition to an exercise of a statutory power or performance of a statutory duty “where the matter of which the [repository] is required to be satisfied is a matter of opinion or policy or taste”.

(Footnotes omitted)

This matter falls into the latter category. That is, the issuing of the Certificate was premised on Mr Smith holding the two opinions described in s 203BE(5).

140    One of the authorities cited in support of these observations was the decision of Gibbs J in Buck v Bavone (1976) 135 CLR 110. With respect to the difficulties associated with state of satisfaction reviews, his Honour said (at 118–119):

… It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.

(Emphasis added)

141    However, it cannot be doubted that a decision based on a state of satisfaction or opinion is reviewable. That was clearly stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 where the plurality (Brennan CJ, Toohey, McHugh and Gummow JJ) said (at 275):

It is no longer the case that a decision as to “satisfaction” is unreviewable. It used to be so. In Ex parte Walsh and Johnson; In re Yates, Knox CJ said:

“When the operation of a law is made conditional upon the opinion, as to certain matters, of some person named or described, or on proof of certain matters to his satisfaction, the question whether his opinion is justified, or whether he should have been satisfied on the materials before him, is not examinable by the Courts.”

As Windeyer J noted in Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd, that statement “is now too far-reaching”. In England, this has been so at least since Secretary of State for Education and Science v Tameside Metropolitan Borough Council. At common law, a similar position had been reached earlier in Australia. From the classic dictum of Sir Owen Dixon in Avon Downs Pty Ltd v Federal Commissioner of Taxation was derived a list of matters upon which “satisfaction” could be reviewed. In considering a power of the Federal Commissioner of Taxation to make certain decisions based upon satisfaction as to the state of corporate voting power, his Honour said:

“His decision, it is true, is not unexaminable. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review.”

This statement of principle has been applied in numerous cases.

(Footnotes omitted)

Thereafter, their Honours went on to quote from that part of the judgment of Gibbs J in Buck v Bavone set out above.

142    The recent High Court judgment in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 should also be mentioned in this review of the guiding principles on legal unreasonableness. In that judgment, Kiefel CJ observed (at [10]–[12]):

10    In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.

11    Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.

12    In Minister for Immigration and Citizenship v Li reference was made to what had been said in Klein v Domus Pty Ltd regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision-maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts.

(Footnotes omitted; emphasis added)

143    In their judgment, Nettle and Gordon JJ made the following observations about, among other things, an outcome focused approach in an legal unreasonableness review (at [82]):

Nor is the abuse of statutory power limited to a decision which may be described as “manifestly unreasonable”, or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused – where, for instance, there is no “evident and intelligible justification” for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, “[r]eview by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’”.

(Footnotes omitted; emphasis added)

144    Their Honours also went on to emphasise that a legal unreasonableness review is “invariably fact dependent” (see at [84]). This is consistent with what the Full Court of this Court said in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (Singh) at [42]. Having mentioned Singh, it is also worth mentioning the following observations made in that judgment at [47] concerning the use of reasons:

This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the Court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that Court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

(Emphasis added)

Disposition

145    Having regard to these principles, I consider Ms Kemppi’s unreasonableness ground is entirely devoid of merit. First, and most fundamentally, I do not accept the construction of s 203BE(5)(a) advanced by Ms Kemppi, namely that the critical question for a native title representative body, in forming the opinion referred to in s 205BE(5)(a), is “whether the efforts taken were reasonable in the sense of identifying, both inclusively and exclusively, every person of [Indigenous] descent who may hold native title, or otherwise has a characteristic from which it is reasonable to conclude they hold native title in the agreement area” (emphasis added). This contention draws on the observations I made in Bygrave No 3 (see at [112] above) and the observations White J made in Bright (see at [111] above). However, by combining those two sets of observations, I consider the effect of both of them has been distorted. The essence of my observations in Bygrave No 3 (to which I adhere) is that the identification process the object of the opinion in s 203BE(5)(a) is intended to be inclusive and expansive. That is, it is intended to cast the widest possible net so that any person who may hold native title in the area of the proposed ILUA is identified and given the opportunity to participate in the process of authorising, or consenting to, the making of that ILUA. As I have already observed above, the inclusion of those persons in this process is very important because, insofar as their native title is concerned, they will be statutorily bound by the ILUA once registered, even though they may not be a party to it.