Federal Court of Australia

Portframe Enterprises ATF Gnaraloo Station Trust v State of Western Australia [2020] FCA 1622

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), the amended originating application filed on 4 June 2020 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    These reasons for judgment relate to an interlocutory application filed by the first and second respondents (the State of Western Australia and that State’s Minister for Lands respectively), which seeks an order that the proceeding be dismissed summarily under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and/or r 26.01 of the Federal Court Rules 2011 (Cth) (2011 FCRs). The interlocutory application is supported by the third respondent, which is a body corporate holding native title rights and interests on behalf of the Baiyungu and/or Thalanyji people pursuant to a consent determination in Peck on behalf of the Gnulli Native Title Claim Group v State of Western Australia [2019] FCA 2090. The respondents contend that the applicant has no reasonable prospect of successfully prosecuting the proceeding and/or that no reasonable cause of action is disclosed.

2    The parties have each filed outlines of submissions in support of their positions. Affidavits have also been provided by the applicant and the first and second respondents. Having regard to the current pandemic, the parties agreed to the matter being heard and determined on the papers and without an oral hearing. Thus no witness was cross-examined.

3    For the following reasons, the interlocutory relief sought will be granted.

Summary of background matters

4    The applicant commenced the substantive proceedings by an originating application filed on 5 May 2020. Relevantly, it sought an order that the parties to the proposed Gnaraloo Tourism Expansion Indigenous Land Use Agreement (ILUA) must include the applicant. The applicant asserts that it has a right under the Native Title Act 1993 (Cth) (NT Act) to be a party to the ILUA. The originating application was accompanied by an affidavit dated 4 May 2020 and affirmed by Mr Norman Richardson, who is a director of the applicant. It outlines the factual background to the dispute and sets out the applicant’s asserted interests in the matter. Mr Richardson subsequently filed several other affidavits.

5    On 4 June 2020, the applicant filed an amended originating application which correctly identified the third respondent.

6    On 16 June 2020, the first and second respondents filed the interlocutory application which is the subject of these reasons for decision. The interlocutory application was accompanied by an affidavit dated 16 June 2020 by Wanjie Song.

7    The relevant background facts may be summarised as follows. The applicant holds a pastoral lease under s 101 of the Land Administration Act 1997 (WA) (LA Act) on which it operates Gnaraloo Station. The pastoral lease comprises approximately 81,044 hectares. The applicant also holds two tourism leases granted under s 79 of the LA Act (known as the 3Mile Camp and Homestead tourism leases respectively). The areas the subject of the tourism leases are linked to the pastoral lease and it is a condition of both tourism leases that the lessee must be the same entity as the party holding the pastoral lease.

8    In 2004, the first and second respondents entered into an agreement with the previous Gnaraloo pastoral lessee which provided for the exclusion of certain land from the Gnaraloo pastoral lease when it was renewed on 30 June 2015 (the 2004 Agreement). The Gnaraloo pastoral lease was acquired by the applicant in 2005 and, as one of the conditions of sale, it agreed to be bound by the 2004 Agreement. In 2007, the applicant surrendered an area of approximately 10,284 hectares to the first and second respondents as required by cl 3 of that 2004 Agreement. In turn, the applicant gained a right to expand the two existing tourism lease areas.

9    On 25 January 2013, the first and second respondents issued two Notices of Intention to Take (NOITTs) in relation to the proposed expansion of the two existing tourism lease areas. The applicant contended that this was done in part fulfilment of the obligations owed by the first and second respondents to the applicant to expand the tourism leases under the 2004 Agreement. It further contended that the purpose of the two NOITTs was compulsorily to acquire all rights and interests in the affected land, including any native title rights and interests, and then grant the two expanded tourism lease areas to the applicant.

10    Matters then took a different course. Instead of proceeding with the NOITTs and compulsorily acquiring the affected land, the first and second respondents decided to negotiate an ILUA with the third respondent. The applicant learnt of this for the first time on 5 September 2017. In her affidavit dated 16 June 2020, Ms Song described the purpose of the proposed ILUA as “to obtain the consent of the native title holders to the proposal to grant two leases to the applicant, and amalgamate those existing leases held by the Applicant, without the need to extinguish native title rights and interests”.

11    Mr Richardson described at some length his attempts during 2017 and 2018 to obtain a copy of the proposed ILUA. This did not occur until 12 April 2018. Subsequently, on 19 November 2019, Mr Richardson was provided with a further copy of an amended draft ILUA. Then on 22 June 2020, and after the proceeding had been commenced (and after the first and second respondents undertook not to execute the proposed ILUA until the proceeding had been resolved), the applicant received a further amended draft ILUA. He noticed that this draft differed from the earlier drafts. In particular, the later draft proposed the ILUA to be a body corporate agreement and not an area agreement as previously proposed.

12    In the interim, it appears that the period of the currency of the two NOITTs was extended on two occasions under s 170(8) of the LA Act. The first extension was to 24 January 2020. The second extension is to 25 January 2021.

13    On 17 December 2019, the Court made a native title determination by consent in respect of what was known as the Gnulli Native Title Claim (see Peck). The applicant was a respondent to that claim and consented to the determination being made. It affected the land the subject of the applicant’s leases.

The parties’ positions briefly stated

(a) Applicant’s contentions

14    It is convenient to first outline the applicant’s position in response to the summary judgment application. In brief, the applicant contends that the draft ILUA is linked to the 2015 land exclusion and the surrender process previously agreed to under the 2004 Agreement which is described above. It contends that the draft ILUA is “part of a pre-existing contractual arrangement between the Applicant and the State” (which is a reference to the 2004 Agreement).

15    The applicant contends that it has a right to be a party to the ILUA because of its pre-existing rights and interests which it says are linked to the draft ILUA. Those rights and interests were described by the applicant as follows:

(a)    The applicant has a sole interest in the only existing and contemplated tourism leases at the location, namely the two tourism leases that are being enlarged via the draft ILUA.

(b)    The applicant has sole interests and entitlements to the two new proposed tourism lease extension areas which the State is contractually obliged to grant to the applicant under the provision of the early surrender option of the 2004 Agreement.

(c)    The two tourism leases are tied to the applicant’s pastoral lease and are not able to be held, or expanded, separately from the pastoral lease. The draft ILUA concerns the proposed enlargements of the two existing tourism lease areas and relates to tourism matters that wholly affect the applicant alone and no others.

(d)    The applicant is explicitly identified in the draft ILUA as the “Proponent” and its rights and interests regarding the existing tourism leases at 3Mile Camp and at the Homestead are dealt with (and limited) in detail.

(e)    The draft ILUA concerns parts of the existing Gnaraloo pastoral lease, namely a portion of the proposed expanded area at the Homestead and therefore applies in part to land that is currently still part of the applicant’s pastoral lease.

(f)    The applicant’s interests flowing from the two NOITTs introduce an associated question of law.

16    The applicant raised the following additional contentions:

(a)    The contents and terms of the draft ILUA will greatly affect and impact the terms and conditions of the possible grants of further terms of the two tourism leases in which the applicant holds interests and is the sole beneficiary. For example, upon term expiry, what will or will not be possible regarding a reasonable prospect of the applicant obtaining the renewal of the leases in future or whether this will be precluded by commitments made by the State respondents to others via the draft ILUA.

(b)    The draft ILUA will greatly affect and impact on the applicant’s interests without the applicant even being consulted.

(c)    The applicant has large financial interests in the two existing Gnaraloo tourism leases and intends to invest further in the lease areas upon their expansion. As such, it is reasonable that the applicant be allowed to be included as a party to the draft ILUA as its contents will directly affect and impact the contents of the future leases for the expansion of these two areas.

(d)    The applicant is affected not only by the introduction of the non-extinguishment principle as has been included in the three versions of the draft ILUA since 2018, but also by other important considerations as set out in paragraph 10 of Mr Richardson’s first affidavit.

(e)    Inclusion of the applicant as a party to the draft ILUA would provide it with the opportunity to raise with the respondents these important practical matters for attention, discussion and resolution before completion and execution of the ILUA.

(f)    The applicant needs to protect its legal rights and have the opportunity to be heard in relation to any further unseen amendments to the draft ILUA that otherwise could be done freely by the other parties without the applicant’s knowledge or consent, and against its interests.

(g)    Given these interests, procedural fairness and natural justice allow the applicant to be included in the draft ILUA and so have a right to put its position forward during any planning or agreements on the future of land in which it has significant investments.

(h)    The draft ILUA, once finalised, will affect the applicant the most, and it is not in the applicant’s interests to delay the agreement.

(i)    The applicant’s request for mediation has been repeatedly refused by the respondents, as well as by the National Native Title Tribunal (Perth) (NNTT), on the basis that the applicant is not a party to the draft ILUA.

(j)    Until the applicant is joined as a party to the draft ILUA, there is no possibility for mediation to resolve important practical issues before the new tourism leases are finalised.

(k)    If the applicant is not a party to the draft ILUA, it is not bound to accept any terms of the document (as per s 24EA(2) of the NT Act).

(l)    If the applicant continues to be excluded from being a party to the draft ILUA, and the ILUA is ultimately registered by the NNTT, the applicant will consider judicial review of the registration decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

17    The applicant contended that the change of direction in 2018 away from the previous proposal compulsorily to acquire all rights and interests in the affected land, including any native title rights and interests, adversely affected it as it had expected that the NOITT procedure would be implemented. It contended that the NOITTs triggered the “right to negotiate” provisions in Subdiv P of Div 3 of Pt 2 of the NT Act. The applicant contended that, given that it had sought the expansion of the two existing tourism leases, it was a “grantee party” as defined in s 29(2)(c) of the NT Act. In a draft Deed drafted by the Department of Lands, which provided for the compulsory acquisition of any native title rights and interests in the area covered by the two NOITTs, the applicant was described as the “Grantee Party”. The draft Deed noted that in accordance with the right to negotiate procedures under the NT Act, negotiations had been conducted in good faith in respect of the compulsory acquisition of any native title rights and interests in the subject area between the State, the grantee party and the native title party. The applicant contended that, consequently, it was also a “negotiation party” for the purposes of s 30A in respect of the proposed ILUA. It contended that it had a “procedural right” under s 30A(c) of the NT Act as the grantee party and a negotiation party to be joined as a party to the draft ILUA. It contended that the effect of the change of direction referred to above meant that the State was trying to disapply the right to negotiate provisions with respect to the applicant.

18    The applicant also complained that it was not made aware until 22 June 2020 that the draft ILUA had been changed from an area agreement to a body corporate agreement, which adversely affected the causes of actions pleaded by it in the originating application, which was drafted on the basis of the proposed ILUA being an area agreement.

19    With respect to the proper construction of s 24BD of the NT Act (which addresses who must or may be a party to an ILUA), the applicant sought to overcome the difficulties presented to its case by the use of the term “may” in s 24BD(3) by stating that it should be in no worse a position than the State. It emphasised that the State was a party to the proposed ILUA even though the extinguishment of native title rights and interests was not proposed. Accordingly, the State did not have to be a party to the ILUA; rather, the position was entirely discretionary as is reflected by the use of the term “may” in s 24BD(2). The applicant contended that the discretionary powers under s 24BD should not be used in a one-sided way so as to preclude the applicant from being a party to the draft ILUA in circumstances where the State respondents were proposed to be parties even though there was no obligation for them to be so.

20    The applicant submitted that Dowsett J’s observations in Gibson v Rivers-McCombs [2014] FCA 144 at [51], which were relied upon by the respondents, were inapplicable because Gibson was distinguishable. It is convenient to set out [51] of Gibson (emphasis added):

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

21    The applicant said in its outline of written submissions dated 6 August 2020 at [4(d)] that the point of distinction between this case and Gibson was as follows:

The Draft ILUA in the present matter does not exist in isolation, but is part of, and inextricably bound to, a pre-existing contractual agreement between the State and the Applicant, being the 2004 Gnaraloo Exclusion Agreement where the State and the Applicant signed an agreement with contractual terms that obligates the State to, amongst other things, enlarge the two tourism areas at Gnaraloo with native title addressed, as set out in paragraph 4 of the First Richardson Affidavit. As a result of the 2004 Agreement, the Applicant was required to forego its rights to compensation under section 114 of the LAA for improvements on the large parcel of land (~10,284 ha) excluded from the pastoral lease in 2015, as set out in paragraph 5 of the Second Richardson Affidavit. This gives the Applicant direct interests in the Draft ILUA. The existing tourism lease areas are native title free, as set out in paragraph 10(i) of the First Richardson Affidavit. The State provided the Applicant with subsequent, repeated and detailed advices over a long period of time as to how the expanded tourism areas would be granted to the Applicant after all rights, including native title rights, had been taken , as set out in paragraphs 4 – 5 of the First Richardson Affidavit. This gave rise to a reasonable expectation by the Applicant that the expanded tourism areas would be provided native title free by the State.

(b) The first and second respondents’ contentions

22    In support of the interlocutory application, the first and second respondents provided an outline of submissions which may be summarised as follows.

23    The purpose of the proposed ILUA is for the State parties to obtain the consent of the native title holders to the offer of the expanded tourism leases to the applicant, and the amalgamation of those leases into existing leases held by the applicant. The parties to the draft ILUA have agreed that the non-extinguishment principle should apply to these proposed future acts.

24    Section 24BD of the NT Act requires only the relevant registered native title bodies corporate (and in certain cases, the Commonwealth, State or Territory) to be parties to an ILUA. Other persons may be, but are not required to be, parties. There is no provision in the NT Act which entitles the applicant to be party to the ILUA. The applicant is not a person who must be included as a party to a body corporate agreement, as required by s 24BD of the NT Act.

25    Subject to provisions of the NT Act, the form of an ILUA is a matter for agreement between the parties.

26    Upon registration, an ILUA is given contractual force if it does not already have it (s 24EA(1)(b)). In addition all native title holders for the agreement area who are not already parties to the ILUA are bound by the ILUA “in the same way” as are the relevant registered native title bodies corporate (s 24EA(1)(b)).

27    Apart from those native title holders, an ILUA will not have the effect of binding any non-parties (s 24EA(2)). Thus the applicant will not bound by the ILUA in any way.

28    The issue of whether persons who are given the benefit of the future acts consented to under an ILUA must be parties to that agreement arose in Gibson. There, at [52], Justice Dowsett observed that the operative effect of an ILUA is to record the consent of the native title holders to particular future acts, which can include acts that have not yet been performed.

29    The operative effect of an ILUA is not to bind the persons who may take advantage of the future act consents given by the native title holders in the agreement. It follows that there is no requirement that those persons must be included as parties to that ILUA. Reliance was also placed on what Dowsett J said in Gibson at [51] (see [20] above).

30    The draft ILUA reflects the proposed terms of a private agreement between the first and second respondents and the third respondent, which does not bind the applicant. There is no provision in the NT Act which supports the Court making an order joining the applicant as a party to that private agreement.

31    In any event, there would be no utility in making such an order if the purpose of the applicant in seeking to be joined as a party to the ILUA is to oppose or change the draft ILUA. There is no basis to conclude that the other parties would agree to any changes sought by the applicant.

32    The applicant is not bound by the ILUA and is free to not take advantage of the future act consents given by the native title holders in the ILUA.

33    In brief, the first and second respondents’ position in their submissions in reply may be summarised as follows:

(a)    The proposed ILUA does not determine or affect the content, term, legal effect or value of the proposed tourism leases and the ILUA is not part of any contractual or other agreement between the applicant and the State.

(b)    The applicant’s complaint that it held a reasonable expectation that the expanded tourism areas would be provided to it free of native title rights and interests is misconceived for the following four reasons:

(i)    The 2004 Agreement is silent on how any native title issues relating to the expanded lease areas are to be dealt with, nor is the 2004 Agreement inextricably bound to the proposed ILUA. The two agreements relate to the same subject matter but there is nothing in either of them which binds or necessarily affects a party to the other agreement.

(ii)    The applicant’s interests in the lease areas are not affected by the continued existence of native title pursuant to the non-extinguishment principle having regard to the terms and effect of s 238 of the NT Act, as construed by the High Court in Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [7].

(iii)    If, contrary to the above, the proposed ILUA had a detrimental effect upon the applicant’s interests, there is no utility in joining the applicant as a party to the ILUA. In particular, there is no reason to believe that the third respondent would be persuaded to agree to the complete extinguishment of its native title rights and interests in relation to the lease areas even if the applicant were to be joined as a party.

(iv)    Use of the term “may” in s 24BD(3) indicates that it is purely a matter of permission whether or not the applicant is to be made a party to the IULA. Moreover, the Court lacks jurisdiction to make an order which would have the effect of requiring the applicant to become a party to the proposed ILUA. The Court’s broad jurisdiction under s 213(2) of the NT Act “in relation to matters arising under” that legislation does not empower the Court to grant the relief sought by the applicant.

34    The first and second respondents rejected the applicant’s claim that Gibson is distinguishable. They also rejected the applicant’s claim that there is any significance in the proposed ILUA being a body corporate agreement as opposed to an area agreement. They contended that the relevant provisions in the NT Act dealing with “other parties” to all ILUAs are substantially the same regardless of whether they relate to an area agreement or a body corporate agreement.

(c) The third respondent’s contentions

35    The third respondent supported the contentions of the other respondents. In response to any concern by the applicant arising from the fact that the draft ILUA did not propose to extinguish native title rights and interests, the third respondent submitted that this presented no detriment to the applicant because its rights under the future granted leases would prevail over native title rights, having regard to s 44H of the NT Act. It added that the non-extinguishment of native title rights and interests did not affect the applicant’s rights under the proposed leases, as confirmed by s 238 of the NT Act.

36    The third respondent agreed that there was no utility in a mediation with the applicant because the parties to the proposed ILUA reached their agreement back in March 2020 and there is no basis to suggest that any party to the ILUA would be willing to renegotiate or change the agreement. In particular, it confirmed that there was no reason why it would agree to native title being extinguished by the proposed leases.

37    The third respondent also asked that the applicant bear its costs.

(d) The parties’ supplementary submissions

38    The parties took advantage of an opportunity to file supplementary submissions concerning the applicant’s claim that it is “grantee party” and accordingly had a right to negotiate under Subdiv P of Div 3 of Pt 2 of the NT Act.

39    The first and second respondents accepted that the right to negotiate provisions applied to a proposed compulsory acquisition (referring to s 26(1)(c)(iii) of the NT Act). They further accept that before any compulsory acquisition of the affected land could occur, the negotiation parties would be required to negotiate in good faith with a view to obtaining the third respondent’s agreement, as the native title party, to the doing of the compulsory acquisition (referring to s 31(1)(b) of the NT Act). They acknowledged that if the proposed compulsory acquisition was to occur, the grant of leases could then occur without any future act processes under the NT Act. Importantly, however, they submitted that the compulsory acquisition is not the proposed future act in question in this proceeding because it has been overtaken by the proposal to enter into the ILUA. The proposed ILUA is intended to ensure the validity of the proposal to grant leases to the applicant without having to proceed with the proposed compulsory acquisition. They contended that notwithstanding that a s 29 notice had been issued, nothing in the legislation required the first and second respondents to proceed with the doing of a future act, such as the originally proposed compulsory acquisition. They submitted that it was open to them to adopt a different course to ensure validity of the proposed grant of the leases via the ILUA. They added that the parties had agreed to adopt this alternative course because it avoided any extinguishment of native title by the doing of the future act.

40    In substance, the first and second respondents submitted that the applicant’s claim was misconceived because it confused a compulsory acquisition of native title (which is subject to the relevant statutory right to negotiate processes) with the present proposal to grant leases without extinguishing native title (which it said was not subject to those right to negotiate processes). They emphasised that the proposed ILUA did not involve any compulsory acquisition. The first and second respondents submitted that it was clear that the right to negotiate processes do not apply to a proposed future act covered by a registered ILUA, referring to ss 26(2)(a) and 24EB of the NT Act.

41    The third respondent supported the supplementary submissions of the first and second respondents.

42    In its supplementary submissions, which were filed in response to the supplementary submissions of the respondents, the applicant contended that it continued to have rights and interests flowing from the two NOITTs and that those NOITTs triggered the right to negotiate processes. It contended that the subsequent decision by the respondents not to proceed with the proposed compulsory acquisition did not terminate the applicant’s ongoing rights to negotiate. It emphasised that, notwithstanding the respondents’ subsequent decision to proceed by way of an ILUA, it was significant that the State extended the currency of the NOITTs to 25 January 2021 and did not let them lapse on 24 January 2020.

43    The applicant further contended that the failure of the State respondents to notify it of the second extension of the NOITTs to 25 January 2021 (prior to receipt of those parties’ written submissions filed on 7 October 2020) breached the notification obligations under s 170(9)(b) of the LA Act. The applicant did not submit that this affected the validity of the second extension. Instead, it submitted that the effect of the extension was to leave it open to the third respondent to consider an “agreed acquisition to gain the benefit of compensation” under the relevant provisions of the NT Act.

Summary of legislation and legal principles

(a) Relevant provisions of NT Act

44    The main objects of the NT Act are set out in s 3. They include providing for the recognition and protection of native title (s 3(a)) and establishing “ways in which future dealings affecting native title may proceed and to set standards for those dealings” (s 3(d)).

45    Section 4 contains an overview of the legislation. It refers in s 4(3)(b) to “future acts” which either validly affect native title or are invalid because of native title. “Future act” is defined in s 233. It was common ground that the State’s proposal to issue two expanded tourism leases to the applicant was a “future act” within that definition. Likewise, it was common ground that the grant of those leases was an “act” within the meaning of s 226. Section 227 defines what is an “act affecting native title”.

46    Division 3 of Pt 2 contains provisions concerning future acts. The overview provision (s 24AA) relevantly provides in sub-section (3) that a future act will be valid if the parties to certain agreements (called ILUAs) consent to it being done and, when the future act is done, details of such an ILUA are on the Register of ILUAs. Provisions relating to body corporate ILUAs are set out in Subdiv B of Div 3 of Pt 2.

47    Section 24BD of the NT Act provides (emphasis added apart from heading):

24BD    Parties to body corporate agreements

Registered native title bodies corporate

(1)    All of the registered native title bodies corporate in relation to the area must be parties to the agreement.

Governments

(2)    If the agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, a State or a Territory as mentioned in paragraph 24BB(e), the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party.

  Others

  (3)    Any other person or persons may be parties.

…

48    Subdiv E of Div 3 of Pt 2 deals with the effect of registration of ILUAs. Under s 24EA(1), once registered, an ILUA is taken to have a contractual affect between the parties to it and it also binds all native title holders for the area regardless of whether they are parties to it. Significantly, s 24EA(2), which is an avoidance of doubt provision, provides that a person is not bound by an ILUA unless the person is a party to the ILUA or a person to whom s 24EA(1)(b) applies (being all persons holding native title in relation to any of the land or waters in the area covered by the ILUA who are not already parties to the ILUA). Accordingly, if the applicant is not a party to the ILUA, once it is registered it will not be bound by the terms of that agreement.

49    Section 24EB is an important provision for the purposes of this proceeding. It explains the effect of registration of an ILUA on proposed acts covered by ILUAs. Relevantly, ss 24EB(1) to (3) provide (emphasis added apart from heading):

24EB    Effect of registration on proposed acts covered by indigenous land use agreements

Coverage of section

(1)    The consequences set out in this section apply if:

   (a)    a future act is done; and

(b)    when it is done, there are on the Register of Indigenous Land Use Agreements details of an agreement that includes a statement to the effect that the parties consent to:

(i)    the doing of the act or class of act in which the act is included; or

(ii)    the doing of the act, or class of act in which the act is included, subject to conditions; and

(c)    if the act is, apart from this Subdivision, an act to which Subdivision P (which deals with the right to negotiate) applies—the agreement also includes a statement to the effect that Subdivision P is not intended to apply; and

Note:    The fact that, under the “right to negotiate” provisions in Subdivision P, agreements can be made after notice of an act is given as mentioned in section 29 does not prevent an indigenous land use agreement being made that consents to the doing of the act.

(d)    if the act is the surrender of native title under an agreement covered by Subdivision B or C—the agreement also includes a statement to the effect that the surrender is intended to extinguish the native title rights and interests.

Validation of act

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

Non‑extinguishment principle

(3)    Unless a statement of the kind mentioned in paragraph (1)(d) in relation to the act is included in the agreement, the non‑extinguishment principle applies to the act.

…

50    Section 24OA provides that, unless a provision of the NT Act provides otherwise, a future act is invalid to the extent that it affects native title.

51    Subdivision P contains various provisions concerning the “right to negotiate”. The right to negotiate applies to certain future acts done relevantly by a State, including certain compulsory acquisitions of native title rights and interests (s 25(1)(b)). It specifies that before a relevant future act is done, the parties must negotiate with a view to reaching an agreement about the act (s 25(2)). It further provides that if the procedures in Subdiv P are not complied with, the act will be invalid to the extent that it affects native title (s 25(4)).

52    Section 26 then explains when Subdiv P applies. Relevantly to this proceeding, sub-sections 26(1)(c)(iii) and 26(2)(a) provide as follows:

Subdivision also applies to certain future acts

(1)    This Subdivision also applies to a future act if:

…

(c)    subject to this section, the act is:

…

(iii)    the compulsory acquisition of native title rights and interests, unless:

(A)    the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on the Government party and the Government party makes a statement in writing to that effect before the acquisition takes place; or

(B)    the purpose of the acquisition is to provide an infrastructure facility; or

…

Exclusions

(2)    This Subdivision does not apply to the extent that the act is:

(a)    an act covered by section 24EB (which deals with the effects of indigenous land use agreements) or by any of the sections listed in paragraphs 24AA(4)(a) to (i); or

…

53    It is important to note that s 26(2)(a) provides that Subdiv P does not apply to the extent that the relevant act (which is a future act) is covered by s 24EB, which deals with the effects of ILUAs.

54    Section 29, which is also in Subdiv P, identifies the parties affected by a future act to whom the Government party must give notice. Relevantly, s 29(2)(c) requires the Government party to give notice to:

(c)    if the doing of the act has been requested or applied for by a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied) – that person (a grantee party); and

…

55    Section 30A defines who are “negotiation parties” for the purposes of the right to negotiate regime under Subdiv P of Div 3 of Pt 2, which includes a “grantee party” (it is common ground that the applicant is a grantee party for the purposes of the proposed compulsory acquisition as contemplated by the NOITTs):

30A    Negotiation parties

Each of the following is a negotiation party:

(a)    the Government party;

(b)    any native title party;

(c)    any grantee party.

56    Section 44H provides that the rights conferred by various instruments, including leases, prevail over any native title rights and interests:

44H    Rights conferred by valid leases etc.

To avoid doubt, if:

(a)    the grant, issue or creation of a lease, licence, permit or authority is valid (including because of any provision of this Act); and

(b)    the lease, licence, permit or authority requires or permits the doing of any activity (whether or not subject to any conditions); and

(ba)    an activity is done in accordance with the lease, licence, permit or authority and any such conditions;

then:

(c)    the requirement or permission, and the doing of the activity, prevail over any native title rights and interests and any exercise of those rights and interests, but do not extinguish them; and

(d)    the existence and exercise of the native title rights and interests do not prevent the doing of the activity; and

(e)    native title holders are not entitled to compensation under this Act for the doing of the activity.

Note 1:    Any compensation to which the native title holders may be entitled under this Act for the grant of the lease, licence, permit or authority may take into account the doing of the activity.

Note 2:    This section is not intended to imply that the person carrying on the activity is not subject to the laws of a State or Territory.

57    Finally, s 238 describes the “non-extinguishment principle”:

238    Non‑extinguishment principle

Effect of references

(1)    This section sets out the effect of a reference to the non‑extinguishment principle applying to an act.

Native title not extinguished

(2)    If the act affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly.

Rights and interests wholly ineffective

(3)    In such a case, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act.

Rights and interests partly ineffective

(4)    If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency.

Who the native title holders are

(5)    Despite the fact that the native title rights and interests have no effect (as mentioned in subsection (3)) or have only limited effect (as mentioned in subsection (4)) in relation to the act, the persons who are entitled in accordance with the traditional laws and customs, as applying from time to time, to possess those rights and interests continue to be the native title holders, subject to Division 6 of Part 2 (which deals with the holding of native title on trust).

Complete removal of act or its effects

(6)    If the act or its effects are later wholly removed or otherwise wholly cease to operate, the native title rights and interests again have full effect.

Partial removal of act or its effects

(7)    If the act or its effects are later removed only to an extent, or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent.

Example of operation of section

(8)    An example of the operation of this section is its application to a category C past act consisting of the grant of a mining lease that confers exclusive possession over an area of land or waters in relation to which native title exists. In such a case the native title rights and interests will continue to exist but will have no effect in relation to the lease while it is in force. However, after the lease concerned expires (or after any extension, renewal or re‑grant of it to which subsection 228(3), (4) or (9) applies expires), the rights and interests again have full effect.

(b) Relevant provisions of LA Act

58    Section 170 deals with the circumstances in which the Minister must issue a notice of intention to take interests in land other than by way of an agreement. Under s 170(7), a NOITT remains current for 12 months or for such longer period as determined under s 170(8). Subsections 170(8) and (9) of the LA Act relate to an extension of a NOITT. They are as follows:

170    Notice of intention to take required interest, issue of etc.

…

(8)    The Minister may, in respect of a particular notice of intention, determine that a longer period applies for the purposes of subsection (7).

(9)    A determination under subsection (8) -

(a)    must be made while the notice of intention is current; and

(b)    must be notified in writing to the relevant persons mentioned in subsection (5)(b) and (c); and

(c)    may be made more than once.

(c) Summary of relevant legal principles

59    The relevant legal principles guiding the exercise of the power under s 31A(2) of the FCA Act and r 26.01 of the 2011 FCRs were helpfully summarised by McKerracher J in Buurabalayja Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 at [3] (with particular reference to summary dismissal being sought by a respondent party, as is the case here):

Without reference to all the well-known authorities, the parties agree that it is well established that the Court may give judgment for a defending party in relation to the whole or any part of a proceeding where the Court is satisfied that the prosecuting party has no reasonable prospects of successfully prosecuting the proceeding or a part of the proceeding. Further:

•    the claim need not be hopeless or bound to fail for it to have no reasonable prospects of success: s 31A of the Federal Court Act;

•    a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd (2008) 250 ALR 82 per Logan J (at [41]);

•    there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: Ship “Sam Hawk” v Reiter Petroleum Ltd (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]);

•    s 31A is amenable to resolving straightforward questions of law: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [16]). However, summary judgment may still be appropriate if a question raised is of some complexity: SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]);

•    if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J (at [127]);

•    it is clear that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment, including summary dismissal, below that fixed by previous authorities: Spencer v Commonwealth of Australia (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ; Jefferson Ford per Gordon J (at [127]);

•    s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial: McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited);

•    summary dismissal will not apply to ‘a real question of law that is serious, important or difficult, involves conflicting authority, or is apparently arguable yet novel’: Nichol v Discovery Africa Ltd (2016) 343 ALR 594 per Greenwood, McKerracher and Moshinsky JJ (at [134]);

•    the moving party bears the onus of persuading the Court the application has no reasonable prospects of success. The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of a value judgement in the absence of a full and complete factual matrix and argument, with a result that the provision vests a discretion in the Court. That discretion includes whether to deal with the motion at once or at some later stage in the proceedings, when the legal and factual issues have been more clearly defined: Kimber v The Owners of Strata Plan No 48216 [2017] FCAFC 226 per Logan, Kerr and Farrell JJ (at [62]) quoting with approval Eliezer v University of Sydney (2015) 239 FCR 381 per Perry J (at [37]);

•    despite the threshold for summary dismissal having been lowered, it must still be exercised with caution. The power is not to be exercised lightly: Spencer v Commonwealth per Hayne, Crennan, Kiefel and Bell JJ (at [60]);

•    the Court does not, in such an application, conduct a ‘mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial’. Rather, it ‘requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial’: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [46]); and

•    each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant facts and circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect materials available to the Court for considering the application, for example, where the pleadings have been exchanged, or discovery of documents has occurred: Cassimatis per Reeves J (at [46]).

60    Particular caution needs to be exercised in determining whether summary dismissal should be granted in circumstances where there are factual disputes and the evidence is not in its final form. Some relevant principles were summarised by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; 236 ALR 720 at [43]-[45]:

… Obviously, where there is a contested application under s 31A, both parties will be present to explain their case, but not in the context of a trial. The procedure envisaged by s 31A is summary. The concept of a party having ‘no reasonable prospect of successfully prosecuting a proceeding’ has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. That test was authoritatively stated by the Judicial Committee in Hocking v Bell (1947) 75 CLR 125 at 130-1; [1948] 1 ALR 85 at 87-8 (Hocking (1947)), approving the following statement from the dissenting judgment of Latham CJ (Hocking v Bell (1945) 71 CLR 430 at 441-2 (Hocking (1945))):

If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case. [Emphasis added]

…

I am of opinion that in assessing what reasonable prospects of success are for the purposes of s 31A, the court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking (1947), contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorise a summary termination of the proceedings which s 31A envisages. In moving the second reading of the bill introducing s 31A (the Migration Litigation Reform Bill 2005) the Attorney-General said that it strengthened “the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”.

61    The need for caution before dismissing an action summarily was emphasised by the Full Court in Danthanarayana v Commonwealth of Australia [2016] FCAFC 114 at [4] (see also Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 at [22] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ):

… to summarily dismiss a proceeding, and thereby preclude a person from having their case determined on its merits at a final hearing, is a serious step taken only with great care and if it is possible to conclude with confidence that there is no reasonable prospect of success; this is so despite the fact that under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the Court Act) the power to summarily dismiss a proceeding is not dependent on the case being “hopeless” or “bound to fail” for it to have no reasonable prospect of success (Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [17]-[26]).

Consideration and determination

62    It is not difficult to understand the applicant’s deep frustration regarding the events which have occurred. It feels aggrieved because the State parties and the third respondent have embarked upon a course of action which has effectively suspended the applicant’s rights as a grantee party to take advantage of the negotiation provisions the subject of Subdiv P regarding the State’s initial proposal compulsorily to acquire the relevant land from the third respondent, including any native title rights and interests therein. As matters stand at present, that proposal has been put on hold pending the execution and registration of the ILUA. The applicant’s sense of grievance is exacerbated by the fact that these developments have occurred substantially without notice to it and without it having an opportunity to influence those developments. A matter of particular concern to the applicant is the practical ramification for it of contractual commitments made by the State parties to the third respondent under the ILUA.

63    Whatever sympathy one may hold for the applicant’s position, the central question nevertheless is whether the proceeding which has been brought by the applicant arising from these events should be summarily dismissed. This question turns on a proper construction of the relevant provisions of the NT Act and their application to the particular circumstances here, while taking into account the relevant principles applying to an application for summary dismissal which are summarised above.

64    For the following reasons and notwithstanding the applicant’s sense of grievance, which I find is sincerely held, I consider that the respondents have correctly described the meaning and effect of relevant provisions of the NT Act. First, I reject the applicant’s submission that it has a legal right to be a party to the ILUA. Undoubtedly the applicant could be a party to that agreement, but I do not accept that it has a legally enforceable right to bring about that state of affairs. The absence of any such right is reflected in the terms of s 24BD of the NT Act (see [47] above), which draw a clear distinction between the circumstances when a particular entity must be a party to a body corporate ILUA, as opposed to the circumstances where such an entity may be a party. Those terms should be given their ordinary meanings. The distinction between them is plain. As Dowsett J observed in Gibson at [51] (see [20] above), there is nothing in the NT Act which supports the proposition that the parties who or which are to perform a relevant future act must be a party to an associated ILUA. I am not persuaded that those observations ought not to be applied here in circumstances where the applicant will be granted the expanded leases following registration of the ILUA.

65    I do not doubt the significance of the applicant’s interest in the ILUA and its desire to be involved in the negotiations concerning the final terms and conditions of that agreement, but its claim to have a legal right to become a party is unsustainable and unsupported by the legislation as it currently stands.

66    If the applicant’s circumstances in the present proceeding expose a lacuna in the legislation, that is a matter which is appropriate for Parliamentary consideration with a view to determining whether the legislation should be amended to recognise and protect the rights and interests of a person in the position of the applicant. It may well be, however, that the lacuna is deliberate, not the least because the ILUA will not bind the applicant having regard to the terms and effect of s 24EA(2) (see [48] above). See also the relevant terms of the Preamble to the NT Act which refers to the holders of the native title having a “special right to negotiate” and Charles v Sheffield Resources Ltd [2017] FCAFC 218; 257 FCR 29 at [54] per North and Griffiths JJ.

67    Secondly, the first and second respondents did not dispute the proposition that the applicant is a “grantee party” and has a right to negotiate under the provisions of Subdiv P. They emphasise, however, and I accept, that they are not obliged to carry out the NOITTs and compulsorily acquire the relevant land as initially contemplated. Nothing in either the NT Act or LA Act is inconsistent with that proposition. I accept their further submission that before the applicant’s affected land could be compulsorily acquired, the negotiation parties (including the applicant) would be required to negotiate in good faith with a view to obtaining the third respondent’s consent. As matters stand at present, however, the proposed compulsory acquisition is not the relevant proposed future act because it has effectively been overtaken by the ILUA process. I accept the State parties’ submission that it was open to them to pursue an alternative course of action, involving the proposed execution and registration of the ILUA, rather than proceed as initially proposed compulsorily to acquire the relevant land. Apparently one of the reasons for this change of direction is because, under the ILUA, the parties have agreed that the non-extinguishment principle will apply to the proposal to issue expanded leases to the applicant. Thus no question of compensation will arise under this option.

68    If for some reason the ILUA is not executed nor registered, it may be open to the State parties to decide to pursue the initial compulsory acquisition proposal before granting the applicant the expanded leases although this may require a further extension depending upon the timing of such a decision. It is clear, however, that if this was to occur, there would need to be compliance with the right to negotiate provisions in Subdiv P. Otherwise, the future act would be invalid as provided for in s 28 of the NT Act.

69    Thirdly, as to the applicant’s submission that summary dismissal is inappropriate at this time given the complexity of the issues of law and the alleged presence of disputed facts, I respectfully disagree. The issues of statutory construction, although somewhat complex, are capable of being resolved at this point and need not await a full trial. It is also significant that copies of all relevant agreements and proposed agreements have been put in evidence and are capable of being construed. I do not accept that there are any other potential disputed facts which are relevant to the issues raised by the interlocutory application which warrant the matter going to a full trial. None of the matters raised by the applicant is sufficiently compelling to avoid summary judgment being granted against it.

Conclusion

70    For these reasons, the interlocutory application should be upheld and the amended originating application summarily dismissed. Although as noted above costs were sought by the third respondent, neither the first nor second respondents sought costs. This may well reflect the terms and effect of s 85A of the NT Act, which provides that unless the Court orders otherwise, each party to a proceeding must bear his or her own costs. I am satisfied that s 85A applies to this proceeding, which is properly regarded as a proceeding “in relation to applications filed in the Federal Court that relate to native title” within the meaning of s 80 of the NT Act. I do not consider that the applicant has engaged in any “unreasonable conduct” which would warrant an order for costs being made against it.

Associate:

Dated:    9 November 2020