FEDERAL COURT OF AUSTRALIA

Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2025] FCA 490

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth), summary judgment be given for the respondent against the applicants in relation to the whole of the proceeding.

2.    The proceeding is dismissed.

3.    Each party is to bear its own costs of the proceeding.

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

REASONS FOR JUDGMENT

HORAN J:

INTRODUCTION

1    This proceeding arises from notices given by the respondent, the State of Western Australia, under s 29 of the Native Title Act 1993 (Cth) (NTA) of the proposed grant of mining tenements over land in respect of which the first to third applicants hold native title rights and interests, and within the area for which the fourth applicant, the Kimberley Land Council (KLC), is the representative Aboriginal/Torres Strait Islander body under Pt 11 of the NTA. Each of the notices relates to the proposed grant of an exploration licence under the Mining Act 1978 (WA).

2    The proposed grants are future acts that are subject to the “right to negotiate” under Subdiv P of Div 3 of Pt 2 of the NTA. In each case, the notice given by the State under s 29 of the NTA included a statement that the State considers that the grant of the exploration licence is a future act that attracts the expedited procedure (a s 29(7) statement or expedited procedure statement). The inclusion of such a statement in a notice under s 29 of the NTA has the effect that, unless the native title parties lodge an objection with the National Native Title Tribunal (NNTT) within the period of four months after the notification day specified in the notice, the State may proceed to grant the licences without engaging in the “normal negotiation procedure” under Subdiv P. If an objection against the inclusion of the statement is lodged within the four month period, the NNTT must determine whether or not the proposed grant is an “act attracting the expedited procedure” within s 237 of the NTA.

3    The applicants seek judicial review of alleged decisions made by the State to include in each of the relevant notices a statement under s 29(7) that the State considers the act is an act attracting the expedited procedure. In essence, the applicants contend that, in making a decision to include such a statement in each of the notices, the State was required by s 29(7) to consider and apply the definition of “act attracting the expedited procedure” in s 237 of the NTA, by giving active consideration to the criteria set out in paragraphs (a) to (c) of that definition — namely, that the act is not likely to interfere directly with the carrying on of the community or social activities of the native title holders, nor to interfere with areas or sites of particular significance to native title holders in accordance with their traditions, nor to involve (or create rights whose exercise is likely to involve) major disturbance to any land or waters concerned. The applicants allege that the State failed properly to perform the requisite statutory task, and that the s 29(7) statement in each of the notices therefore has no lawful or legal effect. The relief claimed by the applicants includes orders setting aside each of the decisions to include an expedited procedure statement in the notices given under s 29 of the NTA, and declarations that those statements had no lawful effect.

4    The applicants also allege the existence of a policy of the State in relation to the inclusion of expedited procedure statements in notices given under s 29 of the NTA since 1 June 2022, and claim that the alleged policy is inconsistent with the applicable provisions of the NTA.

5    There are two interlocutory applications before the Court for determination.

6    First, by an interlocutory application filed on 5 April 2024, the applicants seek leave to amend their originating application and concise statement, principally in order to add claims for relief in respect of a notice given by the State under s 29 of the NTA in respect of a further proposed grant of an exploration licence, in circumstances where an objection against the inclusion of the s 29(7) statement in that notice was not lodged in the NNTT within the four month objection period. The applicants also apply for a “maximum costs order” to cap the costs as between party and party that may be recovered for the proceeding to $100,000.

7    Second, by an interlocutory application filed on 12 April 2024, the State seeks summary judgment to dismiss the proceeding under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) or r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) on the ground that the applicants have no reasonable prospect of success, or under r 26.01(1)(d) of the Rules on the ground that the proceeding is an abuse of the process of the Court.

8    For the reasons set out below, the application by the State for summary judgment against the applicants under s 31A(2) of the FCA Act is allowed, as a result of which the proceeding must be dismissed. I have concluded that the alleged decisions by the State to include an expedited procedure statement in each of the s 29 notices is not amenable to judicial review. In so far as the applicants dispute that the proposed acts attract the expedited procedure, an objection against the inclusion of the s 29(7) statement may be lodged with the NNTT, which must then inquire into and determine whether or not the act is an act attracting the expedited procedure within the meaning of s 237 of the NTA.

9    I acknowledge the evidence adduced by the applicants that was directed to the additional burdens placed on native title parties and common law holders in having to lodge and maintain objections to the inclusion of expedited procedure statements in s 29 notices given by the State in relation to the grant of exploration licences. In order to obtain the “full” right to negotiate in respect of such future acts, native title parties must lodge objections before the statutory deadline and, unless a satisfactory outcome can be reached by agreement with the grantee party, must then participate in inquiries before the NNTT into the impact of the acts on the native title holders and the land or waters concerned. It is to be hoped, if not expected, that a Government party will only include an expedited procedure statement in a notice given under s 29 of the NTA if it considers the proposed future act “to be suitable for the expedited procedure” on the basis that “it is likely to have no, or only minimal impact on matters of significance to native title holders”: Yanunijarra Aboriginal Corporation RNTBC v Western Australia (2020) 276 FCR 53 (YAC v WA) at [12] (Rares, White and Banks-Smith JJ).

10    Nevertheless, the inclusion of such a statement in a notice under s 29(7) of the NTA is not a final and operative decision of a substantive nature, nor does it involve a decision or an exercise of power under the NTA. The relevant provisions of Subdiv P operate on the fact that an expedited procedure statement is included in the s 29 notice, and not on any anterior decision by the Government party. Accordingly, the inclusion of an expedited procedure statement for the purposes of s 29(7) is not a reviewable decision, and the applicants’ challenge to the “lawful effect” of such statements in the relevant notices must fail. In the absence of any reviewable decision, the applicants are unable to obtain declaratory relief in relation to the alleged policy of the State regarding the inclusion of s 29(7) statements and the alleged inconsistency of that policy with the requirements of the NTA. Further or alternatively, s 29(7) of the NTA does not itself impose any substantive requirements governing the content of the State’s policy on whether or when to include an expedited procedure statement in a s 29 notice.

FACTUAL BACKGROUND

The applicants

11    Each of the first to third applicants is a registered native title body corporate (RNTBC) in relation to land or waters in respect of which there are determinations of native title under the NTA.

(a)    The first applicant, Yanunijarra Aboriginal Corporation RNTBC (YAC), holds native title rights and interests on trust for the common law holders in relation to an area of land and waters of approximately 100,000 square kilometres in a remote area of Western Australia extending south from the Fitzroy River into the Great Sandy Desert. The common law holders identify as Ngurrara people.

(b)    The second applicant, Walalakoo Aboriginal Corporation RNTBC (WAC), holds native title on trust for the common law holders in relation to an area in the Kimberley region of Western Australia, who identify as Nyikina Mangala people. WAC is also the nominated prescribed body corporate in relation to a native title determination application made on behalf of the Boorroola Moorrool Moorrool people.

(c)    The third applicant, Malarngowem Aboriginal Corporation RNTBC (MAC), holds native title on trust for the common law holders in relation to an area in Western Australia that is covered by the Malarngowem native title determinations.

12    The fourth applicant, the KLC, is the native title representative body for the Kimberley area in Western Australia: see the Native Title (Recognition as Representative Body – Kimberley Land Council) Instrument 2023 (Cth) dated 26 June 2023.

The s 29 notices

13    By a letter dated 30 June 2023 (the Malarngowem notice), the State gave notice to MAC pursuant to s 29 of the NTA of the grant of an exploration licence (E80/5754) to Argyle Corridor Resources Pty Ltd over land or waters in respect of which MAC is the RNTBC. The “notification day” for the purposes of s 29(4)(a) of the NTA was specified as 7 July 2023. The Malarngowem notice contained the following statement for the purposes of s 29(7) of the NTA:

[The Department of Mines, Industry Regulation and Safety] considers that the grant of the lease/licence is a future act that attracts the expedited procedure pursuant to section 32(1) of the NTA. The expedited procedure applies if the grant of the lease/licence in relation to land or waters concerned is an act not likely to:

•    interfere directly with the carrying on of the community or social activities of the persons who are holders of native title;

•    interfere with areas or sites of particular significance, in accordance with the traditions of the persons who are holders of native title; and

•    involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance.”

…

If no objection is lodged then the lease/licence application/s can be granted. If an objection is lodged the NNTT will hold an inquiry to determine whether the act is an act attracting the expedited procedure. In the latter event the NNTT will advise you of the procedures that must be followed by the parties.

14    By letters dated 8 September 2023 (the Yanunijarra and Walalakoo notices), the State gave notice to YAC and WAC pursuant to s 29 of the NTA of the grant of an exploration licence (E04/2725) to Swiim Holdings Pty Ltd over land or waters in respect of which each of YAC and WAC is the RNTBC. The “notification day” for the purposes of s 29(4)(a) of the NTA was specified as 15 September 2023. The Yanunijarra and Walalakoo notices each contained a s 29(7) statement in identical terms to that contained in the Malarngowem notice (set out above).

15    On 6 November 2023, MAC lodged with the NNTT an objection under s 32(3) of the NTA against the inclusion of the s 29(7) statement in the Malarngowem notice. In accordance with the prescribed form at that time for an objection to inclusion in an expedited procedure application, the objection included a statement why MAC believed that the proposed grant of the exploration licence was not an act attracting the expedited procedure, and an outline of the type of evidence that MAC would produce to the NNTT, including historical, anthropological, archaeological, genealogical, linguistic and environmental evidence relevant to one or more of s 237(a), (b) and (c) of the NTA. Under the heading “Any other relevant information”, the objection stated:

This objection is made under protest as to the jurisdiction of the Tribunal. The s 29 notice does not comply with the requirements of the NTA, and the s 29(7) statement included within the s 29 notice is ineffective, such that the Tribunal does not have jurisdiction to conduct an inquiry.

16    On 20 and 21 December 2023 respectively, each of WAC and YAC lodged with the NNTT an objection against the inclusion of the s 29(7) statement in the Yanunijarra and Walalakoo notices. Each of those objections contained a similar statement explaining why WAC and YAC believe that the proposed grant is not an act attracting the expedited procedure and an outline of the type of evidence that WAC or YAC will produce to the NNTT, and each objection contained a paragraph in identical terms indicating that the objection was made “under protest as to the jurisdiction of the Tribunal”.

17    In respect of the proposed act the subject of the Yanunijarra and Walalakoo notices, Swiim Holdings later withdrew its application for the grant of exploration licence E04/2725. On 8 May 2024, after having been informed by the State that the grantee party had withdrawn the tenement application, the NNTT advised the parties that “the related objection application is also taken to be withdrawn as there is no longer a future act proposed” and that “[a]ll Tribunal records for the matter/s are now finalised”.

18    On or around 19 June 2023, Uro Western Pty Ltd made an application under the Mining Act for an exploration licence (E80/5931). By letters dated 22 September 2023 (the Second Yanunijarra notices), the State gave notice to YAC pursuant to s 29 of the NTA of the grant of exploration licence E80/5931 to Uro Western over land or waters in respect of which YAC is the RNTBC. The “notification day” for the purposes of s 29(4)(a) of the NTA was specified as 29 September 2023. The Second Yanunijarra notices contained a s 29(7) statement in identical terms to that contained in the Malarngowem notice (set out above).

19    In contrast to the other s 29 notices, YAC did not lodge an objection with the NNTT against the inclusion of the s 29(7) statement in the Second Yanunijarra notices within the four month objection period. The explanation for this failure to lodge an objection under s 32(3) of the NTA is the subject of evidence from Mr Peter Murray, the former Chief Executive Officer of YAC, and Mr Kevin Tromp, the current Acting General Manager of YAC. It will be necessary to address this evidence in the context of the application for leave to amend the originating application and concise statement in order to seek relief in relation to the Second Yanunijarra notice.

Originating application and concise statement

20    By an originating application filed on 22 December 2023, the applicants commenced this proceeding under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), s 213(2) of the NTA, the Administrative Decisions (Judicial Review Act) 1977 (Cth) (ADJR Act) and the FCA Act.

21    Each of the first to third applicants seeks relief under the ADJR Act or the FCA Act including:

(a)    an extension of time to lodge the application pursuant to s 11(1)(c) of the ADJR Act;

(b)    certiorari or an order “quashing or setting aside the decision of the [State] to purport to include in the [s 29 notice] … a statement that the State considered the act was an act attracting the expedited procedure … purportedly pursuant to s 29(7) of the [NTA]”;

(c)    a declaration that the s 29(7) statement “has no lawful effect”, that the NNTT has no jurisdiction to conduct an inquiry in relation to the objections lodged by the applicants against the inclusion of the s 29(7) statement, and that the applicants have the right to negotiate in respect of the grant of the relevant exploration licence “in accordance with s 31(1) of the [NTA]”.

22    The relief sought by KLC in the originating application includes a declaration that “the policy adopted by the [State] on 1 June 2022, as implemented and applied from that time, including in making the [decisions challenged by the first to third applicants] and other decisions purportedly made from time to time pursuant to s 29(7) of the [NTA] from 1 June 2022 (the 2022 Policy) was inconsistent with the requirements of the [NTA] concerning the inclusion of a statement under s 29(7) of the [NTA]”, and an injunction restraining the State from applying that policy in making any future decision to include a statement under s 29(7) of the NTA.

23    In their concise statement accompanying the originating application dated 22 December 2023, the applicants contend that the inclusion of a s 29(7) statement in a notice under s 29 of the NTA “switches the procedural track for the particular future act from section 31 (normal negotiation procedure) to section 32 (expedited procedure)”. The applicants contend that s 29(7) and s 237 of the NTA require the Government party, in making a decision to include a s 29(7) statement, to consider whether the future act is an act attracting the expedited procedure in accordance with the definition in s 237 of the NTA, and that this “requires active consideration, on material reasonably available to the Government party”. Accordingly, the applicants contend that the requisite state of mind (i.e. that the Government party considers the act is an act attracting the expedited procedure) must be formed “reasonably, on a correct understanding of the law, and on the basis of some material”.

24    The applicants relevantly allege that, on or about 1 June 2022, the State adopted the 2022 Policy “concerning its approach to making section 29(7) decisions”, which is alleged to be partly in writing, partly as set out in internal written or oral instructions, and partly as implemented in practice”. The applicants allege that the 2022 Policy involves “an assessment process by the State directed towards identifying future acts comprising mining tenement applications at high risk of a determination by the [NNTT] (as arbitral body, were an objection to be lodged under section 32(3)) under section 32(4) that the act is not an act attracting the expedited procedure”, and that the policy does not otherwise require the State to consider whether a future act is one attracting the expedited procedure in accordance with the requirements of ss 29(7) and 237 of the NTA.

25    The “primary legal grounds” on which the applicants seek the relief in the originating application are identified as follows in the concise statement:

(a)    the alleged 2022 Policy is inconsistent with the task conferred on the State by ss 29(7) and 237 of the NTA;

(b)    the decisions to include the s 29(7) statement in the notices given to each of the first to third applicants were decisions to which the ADJR Act applies (decisions of an administrative character made under an enactment);

(c)    the State failed to perform the task required by ss 29(7) and 237 of the NTA, and in particular failed to give active consideration to each of the criteria in s 237 on material reasonably available to it, or failed to do so reasonably, on a correct understanding of the law, and on the basis of some available material;

(d)    accordingly, the s 29(7) statement in each of the notices has no effect for the purposes of the NTA, including for the purpose of ss 31(1) or 32(1) of the NTA;

(e)    the State has acted unlawfully in making s 29(7) decisions since 1 June 2022 in accordance with the alleged 2022 Policy and, unless restrained from doing so, will continue to make such decisions in accordance with the alleged 2022 policy resulting in the unlawful inclusion of s 29(7) statements in s 29 notices; and

(f)    the alleged harms suffered by the applicants as a consequence of s 29(7) decisions affecting native title parties represented by or within the representative body area of the KLC include the requirement to participate in inquiries before the NNTT “should the native title party wish to retain the right to negotiate procedure under section 31, and ensure that the Government and grantee parties are required to negotiate in good faith with a view to obtaining the native title party’s agreement”, and that this involves the use of resources (including time and money) and can be taxing and distressing for the native title parties and individuals involved.

Objection to competency

26    On 22 January 2024, the State filed a notice of objection to the competency of the application. Such a notice is relevantly required by r 31.05 of the Rules, which is principally concerned with applications under the ADJR Act. However, as such applications can be joined with applications for relief of a kind mentioned in s 39B of the Judiciary Act that arises out of, relates to or is connected to the same subject matter (r 31.01(3)), a notice of objection to competency can encompass threshold objections to jurisdiction in relation to the judicial review proceeding more generally. A failure to file a notice of objection to competency may have the consequence of depriving the respondent of an entitlement to costs in the event that the application is ultimately dismissed as incompetent: r 31.05(4).

27    In the present case, the grounds of the State’s objection to competency are directed to whether the alleged decisions to include s 29(7) statements in the notices were decisions to which the ADJR Act applies, and to the applicants’ standing to seek relief in relation to the alleged decisions or the alleged 2022 Policy.

28    No application has been made for the question of competency to be heard and determined separately: cf. r 31.05(3). To some extent, the matters raised by the objection to competency are either encompassed within, or otherwise overtaken by, the State’s interlocutory application for summary judgment.

Interlocutory applications

29    On 5 April 2024, the applicants filed an interlocutory application seeking:

(a)    leave to amend the originating application and concise statement; and

(b)    an order that, subject to any order the Court may make that each party bear their own costs, the maximum costs as between party and party that may be recovered for the proceeding be $100,000 (maximum costs order).

30    By the proposed amended originating application, YAC seeks to add a claim for relief in relation to an alleged decision to include a s 29(7) statement in the Second Yanunijarra notices given in respect of exploration licence E80/5931. The amended concise statement pleads that alleged decision and the s 29(7) statement have no effect on the ground that the State failed to perform the task required by ss 29(7) and 237 of the NTA in making the decision. Further, each of the first to third applicants seek to add claims for declarations that the alleged 2022 Policy, “as implemented and applied in making” the decisions to include an expedited procedure statement in each of the relevant notices, was inconsistent with the requirements of the NTA.

31    On 12 April 2024, the State filed an interlocutory application seeking summary judgment against the applicants under s 31A(2) of the FCA Act and rr 26.01(1)(a) or (d) of the Rules. The State also applied for orders that the applicants pay its costs. In the alternative, the State sought summary judgment separately against each of the applicants, with separate costs orders requiring each of them to pay a proportionate share of the State’s costs.

32    A considerable volume of evidence has been filed on the interlocutory applications. In so far as this evidence addresses the basis on which the State decided to include s 29(7) statements in the Malarngowem notice, the Yanunijarra and Walalakoo notices and the Second Yanunijarra notices, or the policies and procedures generally followed by the State when issuing notices under s 29 of the NTA, it is unnecessary and inappropriate to resolve any contested factual issues for the purposes of the interlocutory applications. The evidence before the Court on the interlocutory applications is not necessarily complete or exhaustive, nor has the evidence on which each party relies been properly tested by the opposing parties. If the matter were to proceed to trial, there may well be additional evidence, including as the result of discovery or other interlocutory processes. Accordingly, while much of the evidence about the background facts and the State’s policies was not controversial or the subject of significant dispute between the parties on the present applications, I must proceed on the basis that this evidence is not necessarily comprehensive as to the existence or content of any policy developed or followed by the State, or the basis on which the State included an expedited procedure statement in each of the notices.

33    The applicants relied on the following affidavits:

(a)    two affidavits of Justine Toohey, Principal Legal Officer of the KLC and solicitor for the applicants, affirmed on 5 April 2024 and 21 April 2024 respectively, with annexures JMT1 to JMT63;

(b)    two affidavits of Kevin Tromp, Acting General Manager and Country Manager of YAC, affirmed on 4 April 2024 and 17 April 2024 respectively, with annexures KT1 to KT10;

(c)    two affidavits of Peter Murray, interim Chief Executive Officer of the Kimberley Aboriginal Law and Culture Centre and former Chief Executive Officer of YAC, affirmed on 5 April 2024 and 23 April 2024 respectively (noting that the applicants did not rely on paragraphs 10 and 11 of the first Murray affidavit in the light of the Statement of Agreed Facts referred to below);

(d)    an affidavit of Robert Watson, Executive Chair of WAC, affirmed on 18 April 2024;

(e)    an affidavit of Tiffany Labuc, General Manager of WAC, affirmed on 19 April 2024, with annexure TL1;

(f)    an affidavit of Desley Rogers, a Director of MAC, affirmed on 18 April 2024 with annexures DR1 to DR5; and

(g)    an affidavit of Russell Gregory, a Director of MAC, affirmed on 19 April 2024.

34    The State relied on the following affidavits:

(a)    two affidavits of Constance Cocksey, Manager of the Resource Access Branch of the Department of Energy, Mines, Industry, Regulation and Safety, sworn on 29 February 2024 and 11 April 2024, with annexures CEC-1 to CEC-42;

(b)    an affidavit of Alicia Nowak, a solicitor at the State Solicitor’s Office, affirmed on 12 April 2024, with annexures ALN-1 and ALN-2; and

(c)    an affidavit of Martin Wiedemann, Principal Tenement Consultant at MKII Consulting, sworn on 12 April 2024; and

(d)    an affidavit of Sheila Begg, a solicitor at the State Solicitor’s Office, affirmed on 13 May 2024, with annexures SB-1 to SB-5.

35    In addition, the parties filed a brief Statement of Agreed Facts for the purposes of s 191 of the Evidence Act 1991 (Cth) in relation to the receipt by YAC of the correspondence comprising the Second Yanunijarra notices.

LEGISLATIVE FRAMEWORK

36    The NTA commences with a Preamble that “sets out considerations taken into account by the Parliament in enacting the law that follows”. Among other things, the Preamble recognises that “the people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement”, and the consequences of their progressive dispossession of their lands. As is acknowledged in the Preamble, the NTA was enacted in response to the High Court’s decision in Mabo v Queensland (No 2) (1992) 175 CLR 1, as a special law for peoples of the aboriginal race within s 51(xxvi) of the Constitution. The Preamble declares the intention of the people of Australia “to rectify the consequences of past injustices by the special measures contained in this Act … for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders” and “to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire”. The Preamble also states that the NTA is intended, for the purposes of Art 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination (opened for signature 21 December 1965, 660 UNTS 196 (entered into force 4 January 1969)) (ICERD) and the Racial Discrimination Act 1975 (Cth) (RDA), to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders.

37    Foreshadowing the future act regime that is established Div 3 of Pt 2 by the NTA, the Preamble relevantly states:

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

38    These two purposes of protecting native title and providing certainty for acts affecting native title are reflected in the statutory objects set out in s 3(a) and (b) of the NTA, which provide:

233     Objects

Main objects

The main objects of this Act are:

(a)    to provide for the recognition and protection of native title; and

(b)    to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; …

39    Sections 10 and 11 of the NTA provide that native title is recognised, and protected, in accordance with the Act, and is not able to be extinguished contrary to the Act. As North, Dowsett and Jagot JJ said in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (2018) 258 FCR 521 at [22]:

The provisions of the NTA thus govern how the object of the Act specified in s 3(a) (to provide for the recognition and protection of native title) is to be achieved. Similarly, the provisions of the NTA govern how the object in s 3(b) (to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings) may be achieved. The objects are not free-standing. They are not to be achieved other than in accordance with the provisions of the NTA.

40    Division 3 of Pt 2 of the NTA deals with “future acts”, which are defined in s 233(1) as follows:

233    Future act

Definition

(1)    Subject to this section, an act is a future act in relation to land or waters if:

(a)    either:

(i)    it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or

(ii)    it is any other act that takes place on or after 1 January 1994; and

(b)    it is not a past act; and

(c)    apart from this Act, either:

(i)    it validly affects native title in relation to the land or waters to any extent; or

(ii)    the following apply:

(A)    it is to any extent invalid; and

(B)     it would be valid to that extent if any native title in relation to the land or waters did not exist; and

(C)    if it were valid to that extent, it would affect the native title.

41    In other words, a future act is an act that affects native title (or would affect native title if it were valid): see also s 24AA(1). The term “act” is defined in s 226, and relevantly includes “the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument”, and “the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters”: s 226(2)(b), (c). Section 227 provides that an act “affects” native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.

42    Under the NTA, future acts either validly affect native title or are invalid because of native title: see s 4(3)(b). The regime governing future acts contained in Div 3 of Pt 2 of the NTA “provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not”: s 24AA(2). Apart from validity under indigenous land use agreements (ILUA) (see s 24AA(3) and Subdivs B, C and D of Div 3), future acts are only valid if they are covered by the provisions of an applicable subdivision of Div 3 of Pt 2 which is specified in s 24AA(4).

43    Thus, s 24OA provides that, “[u]nless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title”. Essentially, a future act is valid (in the sense that it validly affects native title) if it is covered by an applicable subdivision in Div 3 of Pt 2 of the NTA. Generally speaking, Subdivs F–N and the provisions therein proceed in a descending order, so that a future act covered by a particular subdivision and section is not covered by a section that is “lower in the list” that is set out in s 24AA(4): see s 24AB(2). The hierarchical structure of Div 3 of Pt 2 culminates in the “finishing point” under s 24OA, which is a “residual provision” dealing with the situation where an act “is not covered by an earlier provision or an expressly stated condition of validity in such a provision (such as the operation of Subdiv P, where so identified as a condition of validity) has not been satisfied”: see BHP Biliton at [28]–[29], [34]–[35] (North, Dowsett and Jagot JJ).

44    For example, Subdiv M covers acts that pass the “freehold test”, including non-legislative acts that could be done in relation to the land concerned if the native title holders concerned instead held “ordinary title” (i.e. a freehold estate in fee simple or, in the case of land in the Australian Capital Territory or the Jervis Bay Territory, a lease granted by or on behalf of the Commonwealth): ss 24MB(1), 253. If Subdiv M applies to a future act, the act is valid, “subject to Subdivision P (which deals with the right to negotiate)”: s 24MD(1). As is provided by s 24AA(5):

Right to negotiate

(5)    In the case of certain acts covered by section 24IC (permissible lease etc. renewals) or section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a “right to negotiate”).

45    The right to negotiate is governed by Subdiv P, which applies to certain kinds of future acts done by the Commonwealth, a State or a Territory, including certain conferrals of mining rights: s 25(1)(c). By way of an overview of the subdivision, s 25 relevantly provides:

(2)    Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act. However, in certain circumstances, the Commonwealth, State or Territory can limit its participation in negotiations if the other parties consent.

(3)    If they do not reach agreement, an arbitral body, or a Minister, will make a determination about the act instead.

(4)    If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.

46    The NTA also accommodates a State or Territory enacting their own laws containing alternative provisions to the right to negotiate regime under Subdiv P, provided that those laws address certain matters to the satisfaction of the Commonwealth Minister: see ss 25(5), 43 and 43A.

47    As Rares, White and Banks-Smith JJ stated in YAC v WA at [5], Subdiv P “contains a scheme by which future acts by the Commonwealth, a State or a Territory involving, generally speaking, mining activities, may be valid”, and “[t]he evident intention of Subdiv P is to provide a means by which future acts of this kind may be lawfully undertaken, despite their effect on native title, and to provide some certainty as to whether the acts are permitted”. Their Honours continued (at [6]):

The scheme in Subdiv P contemplates four such means: negotiated agreement; governmental decision when an expedited procedure is appropriate; arbitral determination; or ministerial determination. It puts particular emphasis on the parties negotiating an agreement with respect to the carrying out of future acts.

48    The right to negotiate under Subdiv P relevantly applies (with certain exceptions and exclusions) to future acts that involve the creation of a right to mine, whether by the grant of a mining lease or otherwise: s 26(1A)(c), (1)(c)(i). Such acts will be invalid to the extent that they affect native title unless they satisfy one of the “pathways” set out in s 28(1):

28    Act invalid if done before negotiation or objection/appeal etc.

(1)    Subject to this Act, an act to which this Subdivision applies is invalid to the extent that it affects native title unless, before it is done, the requirements of one of the following paragraphs are satisfied:

(a)    by the end of the period of 4 months after the notification day for the act (see subsection 29(4)), there is no native title party in relation to any of the land or waters that will be affected by the act;

(b)    after the end of that period, but immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act;

(c)    subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;

(d)    a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;

(e)    native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);

(f)    an agreement of the kind mentioned in paragraph 31(1)(b) is made;

(g)    a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with;

(h)    a determination that the act must not be done is declared to be overruled in accordance with section 42.

49    The starting point is the requirement on the Government party to give notice of the proposed future act to any RNTBC in relation to any of the land or waters that will be affected by the act, along with any registered native title claimant (unless there are one or more RNTBCs in relation to all of the affected land or waters) and any representative Aboriginal/Torres Strait Islander body in relation to any land or waters that will be affected by the act: s 29(2)(a), (b). Any such RNTBC or registered native title claimant is referred to as a “native title party” (see also s 30). If a person has requested or applied for the doing of the act, the Government party must also give notice to that person, who is referred to as the “grantee party”: s 29(2)(c). Finally, the Government party must give notice of the proposed future act to the registrar or other proper officer of the applicable arbitral body, such as the NNTT (s 29(3)) and, unless there is a RNTBC in relation to all of the affected land or waters, either the Government party or the grantee party must notify the public of the act “in the determined way” (s 29(4)).

50    Notices given under s 29 of the NTA must specify a day as the “notification day” for the act, which “must be a day by which, in the Government party’s opinion, it is reasonable to assume that all notices under subsections (2) and (3) in relation to the act will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those subsections”: s 29(4)(a), (6). The notification day is relevant for the calculation of time periods, including in particular the period within which a native title party may lodge an objection against the inclusion in the notice of an expedited procedure statement. The notice must also be accompanied by any prescribed documents and include any prescribed information: s 29(4)(c).

51    Section 29(7) deals with acts attracting the expedited procedure, and provides as follows:

Acts attracting the expedited procedure

(7)    The notices under this section may include a statement that the Government party considers the act is an act attracting the expedited procedure.

52    The phrase “act attracting the expedited procedure” is defined in s 237:

237    Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:

(a)    the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)    the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

53    In broad terms, the expedited procedure provides an alternative “pathway” to the validity of a future act under Subdiv P.

54    The “normal negotiation procedure” applies “[u]nless the notice includes a statement that the Government party considers the act attracts the expedited procedure”: s 31(1). This involves the Government party giving all native title parties an opportunity to make written or oral submissions to it regarding the act: s 31(1)(a). The Government party, any native title parties and any grantee party (the “negotiation parties”) are then required to negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act, or the doing of the act subject to conditions to be complied with by any of the parties: s 31(1)(b). Mediation by the NNTT (or other applicable arbitral body) is available to assist in obtaining an agreement between the parties: s 31(4).

55    If at least six months have passed since the notification day without any agreement having been made in relation to the act, any negotiation party may apply to the arbitral body for a determination that the act must not be done, or may be done, or may be done subject to conditions to be complied with by any of the parties: ss 35(1), 38(1). The arbitral body must take all reasonable steps to make a determination in relation to the act as soon as possible: s 36(1). If an agreement or a determination has not been made by four months after the application to the arbitral body, the relevant Minister may give a written notice to the arbitral body requesting it to make a determination within a period specified in the notice (which must be at least six months after the application was made to the arbitral body): s 36(4). If there is still no agreement or determination by the end of that specified period, the relevant Minister may be able to make a determination in relation to the act: ss 36A, 36B, 36C. If the arbitral body is the NNTT and it does not make a determination within six months, it must provide the Commonwealth Minister with an explanation of the reasons for not doing so and give an estimate of when the determination is likely to be made: s 36(3).

56    In making a determination under s 38, the arbitral body must take into account the matters specified in s 39(1), which include matters such as the effect of the act on the native title parties’ enjoyment of their registered native title rights and interests; their way of life, culture and traditions; the development of their social, cultural and economic structures; their freedom of access to the land or waters concerned and their freedom to carry out traditional rites, ceremonies or other activities of cultural significance on the land or waters; any areas or sites of particular significance to the native title parties in accordance with their traditions; their interests, proposals, opinions or wishes in relation to the management, use or control of the affected land or waters; the economic or other significance of the act; and any public interest in the doing of the act.

57    The “expedited procedure” is set out in s 32 of the NTA, which provides as follows:

32    Expedited procedure

(1)    This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).

Act may be done if no objection

(2)    If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.

Kinds of objection

(3)    A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.

Objections against inclusion of statement

(4)    If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.

Act not attracting expedited procedure

(5)    If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.

Withdrawal of objection

(6)    At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If all such objections are withdrawn, the Government party may do the act.

Withdrawal of statement about expedited procedure

(7)    At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.

58    Salient points to be made in relation to the operation of s 32 of the NTA are:

(a)    the expedited procedure applies “if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure”;

(b)    the Government party may do the act if:

(i)    the native title party or parties do not, within four months after the notification day, lodge an objection with the arbitral body against the inclusion of the expedited procedure statement in the s 29 notice;

(ii)    any such objection is withdrawn by the native title party before the arbitral body makes a determination; or

(iii)    the arbitral body determines that the act is an act attracting the expedited procedure;

(c)    if one or more native title parties lodge an objection within the four month period and the arbitral body determines that the act is not an act attracting the expedited procedure, s 31(1) applies as if the s 29 notice “did not include a statement that the Government party considers the act attracts the expedited procedure” — that is, the “normal negotiation procedure” must be followed; and

(d)    the normal negotiation procedure under s 31 must also be followed if the Government party withdraws the expedited procedure statement at any time before the arbitral body makes its determination.

59    In other words, putting to one side the absence or withdrawal of any objection by the native title parties or the withdrawal by the Government party of the s 29(7) statement, whether or not the normal negotiation procedure must be followed will ultimately turn on the determination made by the arbitral body as to whether the act is an act attracting the expedited procedure within the definition in s 237.

60    Division 2 of Pt 3 of the NTA deals with applications that may be made to the NNTT in relation to the right to negotiate. Section 75 relevantly provides that an “[e]xpedited procedure objection application” may be made to the NNTT by a native title party, and describes such an application as one “objecting as mentioned in subsection 32(3) against the inclusion of a statement that an act is an act attracting the expedited procedure”.

61    Section 139(b) requires the NNTT to hold an inquiry into a right to negotiate application covered by s 75. The parties to such an inquiry are the Government party, the grantee parties and, for an expedited procedure objection application, any native title party that has lodged an objection in accordance with s 32(3) and has not withdrawn the objection: s 141(2). Division 5 of Pt 6 of the NTA governs the conduct of inquiries by the NNTT, and includes provisions dealing with the opportunity of parties to present their case and to make submissions in relation to evidence (s 142), representation of parties (s 143), the determination of questions of law arising in an inquiry (s 144), the reference of questions of law to the Federal Court (s 145), powers to dismiss applications (ss 147–149A), the holding of conferences and hearings (ss 150–159). The Tribunal is required to make a determination about the matters covered by a right to negotiate application, and must state in the determination any findings of fact upon which it is based: s 162. A party to an inquiry in a right to negotiate application has a right of appeal to the Federal Court on a question of law from any decision or determination of the NNTT in that proceeding: s 169.

62    As considered further below, the prospect that a native title party can withdraw an objection against the inclusion of the expedited procedure statement provides a practical opportunity for native title parties and grantee parties to seek to reach an agreement about the manner in which the acts, or activities authorised by the act, are carried out.

63    It is apparent from the definition in s 237 that the expedited procedure is directed to future acts that are unlikely to involve direct interference with the community or social activities of native title holders, nor interference with areas or sites of particular significance to native title holders, nor major disturbance to any land or waters concerned.

64    For completeness, it is relevant to note other provisions of the future act regime contained in Div 3 of Pt 2 of the NTA that address future acts with minimal impact on native title rights and interests or on the land or waters in respect of which those rights and interests are held.

(a)    First, s 24LA (contained in Subdiv L) deals with “low impact future acts” which take place before an approved determination of native title is made in relation to the land or waters, and do not consist of, authorise or involve matters such as: the grant of a freehold estate; the grant of a lease; the conferral of a right of exclusive possession; excavation or clearing; mining (other than fossicking by using hand-held implements); the construction or placing of buildings, structures or fixtures; or the disposal or storage of garbage or poisonous, toxic or hazardous substances.

(b)    Section 26A confers power on the Commonwealth Minister to determine that an act or a class of acts is an “approved exploration etc. act”, where the act “consists of the creation or variation of a right to mine that is a right to explore, prospect or fossick” which is “unlikely to have a significant impact on the particular land or waters concerned”. Before making such a determination, the Commonwealth Minister is required to notify and invite submissions from relevant representative Aboriginal/Torres Strait Islander bodies and the public. The Commonwealth Minister must also be satisfied that RNTBCs, registered native claimants and representative Aboriginal/Torres Strait Islander bodies that will be affected by the act will be afforded the same rights to be notified and to be heard by an independent person or body about the doing of the act as other persons with an interest in the land or waters, and that RNTBCs or claimants will be consulted for the purpose of minimising the impact of the act on the exercise of native title rights and interests.

65    However, neither of those provisions have any operation in the circumstances of the present case.

APPLICATION FOR SUMMARY JUDGMENT

66    Section 31A(2) of the FCA Act provides:

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

67    There is no significant dispute between the parties as to the principles governing the State’s application for summary judgment. It is accepted that the State bears the onus of establishing that the applicants’ claims have no reasonable prospect of success. The relevant inquiry under s 31A(2) is whether there is a “reasonable” prospect of prosecuting the proceeding, as opposed to “whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer v Commonwealth (2010) 241 CLR 118 at [52] (Hayne, Crennan, Kiefel and Bell JJ), see also at [22] (French CJ and Gummow J). In other words, certainty of failure on the applicants’ part is not required in order for a respondent to succeed on an application for summary judgment: Tran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1628 at [2] (Bromwich J). Section 31A(3) expressly provides that the proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success. Nevertheless, the power to dismiss an action summarily must be exercised with caution or “great care”: Spencer at [24] (French CJ and Gummow J), [60] (Hayne, Crennan, Kiefel and Bell JJ); see also Danthanarayana v Commonwealth [2016] FCAFC 114 at [4] (Jagot, Bromberg and Murphy JJ).

68    The present case is not one where there is “unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment”: cf. Spencer at [22] (French CJ and Gummow J). Although the State has put on substantial evidence about its policies and procedures in relation to the inclusion of expedited procedure statements in s 29 notices, it cannot be said that such evidence is unanswerable or beyond any challenge or elaboration at trial. Thus, in my view, there may remain real questions of fact about the alleged 2022 Policy and the basis on which the State included the s 29(7) statements in the relevant notices. The applicants would be entitled to take advantage of the “usual interlocutory processes” before any final determination of those facts at a trial in the proceeding: see Spencer at [24] (French CJ and Gummow J), referring to Agar v Hyde (2000) 201 CLR 552 at [57] (Gaudron, McHugh and Hayne JJ); cf. Spencer at [48] (Hayne, Crennan, Kiefel and Bell JJ).

69    However, that does not exhaust the possible scope of s 31A(2) of the FCA Act. Summary judgment may also be granted where it is clear that “the pleadings disclose no reasonable cause of action and their deficiency is incurable”, or where it is clear as a matter of law that the facts pleaded by a party do not entitle the party to the relief sought: see Spencer at [21]–[22] (French CJ and Gummow J), referring to Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1 at [94]–[95] (Lord Hope). Thus, irrespective of the facts that may ultimately be established in relation to the alleged s 29(7) decisions the subject of the originating application and the State’s policy in relation to the inclusion of expedited procedure statements in s 29 notices given under the NTA, there is a threshold question of law as to whether the case pleaded by the applicants involves any decisions that are amenable to judicial review.

70    Where the relief claimed by a party to a proceeding depends on their success on a question of law, the Court may be presented with a choice as to whether it is appropriate for that question to be resolved on an application for summary judgment.

71    In opposing the State’s interlocutory application in the present case, the applicants submit that there is a sufficient prospect of their preferred construction of s 29(7) of the NTA being accepted such that the matter ought to proceed to trial. There is some support in the authorities for such an approach, at least where the legal questions are sufficiently arguable. For example, in Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at [48], Reeves J said:

[A]s a general principle, the moving party on an application for summary dismissal is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel.

(Emphasis added.)

See also Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [29(d)] (McKeracher J).

72    In Spencer, French CJ and Gummow J (at [25]) appeared to contemplate that summary dismissal would be more suited to cases in which the legal position is clear, and that existing authority at first instance or even at intermediate appellate level might not be determinative:

Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

However, any such resort to “the development of the law” may only be taken so far — see Advanced Holdings Pty Ltd v Commissioner of Taxation (2020) 281 FCR 149 at [74], where Steward J (with whom Allsop CJ and Bromwich J agreed) said:

Nor can an applicant avoid summary judgment in every case by making a simple proclamation that it wishes to develop the law before the High Court. If such a submission were to be made to a primary judge, in applying s 31A that judge would still need to assess the probability of that development taking place in determining whether the applicant had reasonable prospects of success.

73    As addressed below, the State submits that the present case is one in which the questions raised by the proceeding are “well settled on authority” such that the question whether the applicants have a reasonable prospect of success can be readily determined without the necessity for a full trial. On the other hand, the applicants submit that any existing authorities against them either can be distinguished or are plainly wrong. On the applicants’ submissions, the questions of law on which their success depends are difficult, serious and important and their resolution requires lengthy argument.

74    Even accepting for present purposes that there are arguable questions of law concerning the construction of s 29(7) of the NTA and the amenability to judicial review of expedited procedure statements in s 29 notices, it remains necessary to consider whether the arguments are sufficiently strong to warrant the matter going to trial, or whether the legal issues can be resolved at a summary hearing “in the interests of saving costs and time”: see Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257; 78 IPR 586 at [28] (Emmett J).

75    In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at [131], Gordon J recognised that it may be appropriate to determine an arguable question of law in order to exercise the power to give summary judgment against a party. After having noted that it is unlikely that a proceeding or part of a proceeding will have no reasonable prospect of success where there is a real issue of fact relevant to the pleaded cause of action, Gordon J continued:

By contrast, the existence of a real issue of law does not necessarily preclude summary judgment. This is so because, assuming that there is no relevant factual dispute (or if the relevance of the factual dispute depends, as in the instant case, on the resolution of the legal dispute), the court can generally hear and decide a disputed point of law without the need for a trial or evidentiary hearing. In such cases, the proper course for the court would be to accept submissions and hear argument from the parties in connection with the notice of motion hearing. Even under the earlier, different and more stringent test, “argument, perhaps even of an extensive kind” was permitted “to demonstrate that the case of [a party] is so clearly untenable that it cannot possible succeed”: [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125] at 130. Once the court resolves the issue or issues of law, it will then be clear whether the opposing party has reasonable prospects of success and summary judgment can be granted or refused accordingly.

76    Similarly, Rares J in Jefferson Ford (at [73]) appeared to acknowledge the Court’s discretion to determine a question of law as a qualification on the principle that a matter ought to be allowed to go to trial if the applicant can establish that there is a real issue of fact or a real issue of law capable of being decided in its favour. The existence of such a judicial discretion was also supported by Finkelstein J (at [23]), who said:

On questions of law, the judge should conduct an inquiry into their merit, not for the purpose of resolving them (though this can be done — see Rosser v Austral Wine & Spirit Company Pty Ltd [1980] VR 313 at 320) and also not simply to determine whether the argument is hopeless, but in order to decide whether it is sufficiently strong to warrant a trial. If the judge is satisfied that he (or she) is able to resolve any contested legal issue at a summary hearing and without undue delay, it may be better all around if that be done. If not, then at least the merits must be tested. That will then give s 31A a substantial operation, which is what, it seems to me, was intended.

77    The observations of Finkelstein J and Gordon J respectively in Jefferson Ford were synthesised as follows by Emmett J in Bradken Resources at [28]:

The object is not simply to determine whether the argument is hopeless, but whether the argument is sufficiently strong to warrant the matter going to trial. If the Court can resolve contested legal issues at a summary hearing, without undue delay, it may be preferable to do so in the interests of saving costs and time. Where there is a real issue of law, the Court can hear and decide it without the need for a trial or evidence. Once the issues of law are resolved, it may be clear, one way or the other whether the matter should be allowed to go to trial.

78    The approach of Gordon J in Jefferson Ford in relation to the resolution of disputed issues of law on an application for summary judgment has not received universal agreement: see e.g. J F Keir Pty Ltd v Sparks [2008] FCA 611 at [52] (Graham J). In this regard, it remains open to a party to apply for the separate hearing and determination of a question that, if it substantially disposes of the proceeding or renders unnecessary the further trial of the proceeding, may found an application for judgment or an order dismissing the whole or any part of the proceeding: see rr 30.01 and 30.02 of the Rules.

79    Nevertheless, the comments made by Gordon J in Jefferson Ford have been endorsed and applied in several recent decisions of this Court: see Binqld Finances Pty Ltd (in liq) v Binetter [2024] FCA 361 at [11] (Kennett J); Shafran v Secretary of the Department of Veterans’ Affairs [2024] FCA 621; 183 ALD 375 at [76] (Banks-Smith J); see also East Rockingham RRF Project Co Pty Ltd as Trustee for the East Rockingham RRF Project Trust v Acciona Construction Australia Pty Ltd [2024] FCA 759 at [95] (Feutrill J); Portframe Enterprises ATF Gnaraloo Station Trust v Western Australia [2020] FCA 1622 at [59], [63] (Griffiths J); Liaoning Zhongwang Group Co Ltd v Alfield Group Pty Ltd [2017] FCA 1223 at [10] (Gleeson J).

80    The approach of determining a contested question of law on an application for summary judgment may in some cases be analogous to a proceeding by way of demurrer, in which the legal merits of a claim or defence are finally determined on the basis of the material facts alleged by the pleadings. However, as Rares J pointed out in Jefferson Ford (at [69]–[70]), a demurrer can be distinguished from the determination of a question of law on a summary judgment application under s 31A of the FCA Act, which turns on whether there is a reasonable prospect that the relevant claim or defence will be successfully prosecuted or defended.

81    Accordingly, in circumstances where it is generally accepted that the exercise of the power to give summary judgment under s 31A of the FCA Act is “not limited to simple cases” (see Babscay Pty Ltd v Pitcher Partners [2019] FCA 480 at [14] (Middleton J); SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 at [115] (Flick J)), it is open to the Court to consider the merits of an issue of law in determining whether or not it is appropriate to give summary judgment under s 31A of the FCA Act. While there are cases in which it may be preferable to defer the resolution of the issue to a final hearing, there are other cases in which “a pure question of law can often be decided just as conveniently and authoritatively on a summary dismissal application as on any other occasion”, particularly where the question does not depend on any evidence that may be adduced at the final hearing: Binqld Finances at [11] (Kennett J). In such circumstances, “the fact that the arguments on the point are complex and require detailed review of the case law does not prevent a firm view as to the correct answer being reached and given effect”: ibid. Ultimately, it remains a matter in the exercise by the Court of its discretion under s 31A of the FCA Act, having regard to all of the circumstances of the case, including “whether the point or question is novel, what is at stake for the parties, and the cogency of the parties’ arguments on each side of the question”: DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth [2020] FCA 958 at [52] (Mortimer J); see also Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [31] (Spender, Graham and Gilmour JJ).

82    In the circumstances of the present case, I am satisfied that it is appropriate to resolve the questions of law as to the proper construction of s 29(7) of the NTA for the purposes of determining the application for summary judgment. This encompasses the threshold questions as to whether the alleged decisions by the State to include an expedited procedure statement in the relevant notices given under s 29 are amenable to judicial review on the grounds contained in the originating application, and whether the applicants have any reasonable prospect of obtaining the relief sought in the originating application. These questions were fully argued on the hearing of the interlocutory applications, and their resolution does not depend on the evidence that may ultimately be adduced at the trial of the proceeding nor any findings of fact that might be made based on such evidence. To borrow the words of Siopis J in McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 at [40], “I have had the benefit of full argument on the points of law in issue”, and “I am in no worse a position to determine those points of law than I would be at the end of a trial”. I note that this is consistent with the approach taken in Holt v Manzie (2001) 114 FCR 282, in which Olney J upheld an objection to competency in a judicial review proceeding that raised similar issues to the present case. Accordingly, I do not accept that it is sufficient to dispose of the summary judgment application simply to determine whether the questions of law are arguable or have some prospect of being resolved in favour of the applicants.

Evidence on the summary judgment application

83    The following is intended to summarise key aspects of the evidence that was relied on by the parties on the application for summary judgment under s 31A of the FCA Act. As discussed above, I consider that the threshold questions of law concerning the construction and application of s 29(7) of the NTA can be resolved independently of this evidence, and without determining any contested issues of fact. Nevertheless, it is useful to address the factual context in which the issues that the applicants seek to agitate in the proceeding arise.

84    It appears that, prior to 1 June 2022, the State adopted a “blanket” approach under which expedited procedure statements were generally included in all notices given under s 29 of the NTA for exploration licences proposed to be granted in Western Australia. Such an approach was referred to in the KLC’s written submissions dated 29 November 2019 to the Senate Legal and Constitutional Affairs Committee Inquiry into the Native Title Legislation Amendment Bill 2019 (Cth), which asserted that “in Western Australia it has been the practice of the State since 1998 to apply the expedited procedure statement to all exploration licences issued in the State without undertaking the consideration required by s 29(7)”. The KLC had submitted to the Committee that this had the practical effect of shifting to native title parties the cost of determining whether or not the expedited procedure did in fact apply to the particular grant, including by objecting to the inclusion of the expedited procedure statement.

85    Although the KLC’s submissions to the Committee are not direct evidence of any policy on the part of the State, the historical existence of a “blanket” approach by the State to the inclusion of an expedited procedure for “exploratory titles” granted prior to 1 June 2022 is recognised in the documents evidencing the new policy that was adopted by the State with effect from that date.

86    The 2022 Policy as alleged by the applicants is comprised in a number of documents published by the Department of Mines, Industry Regulation and Safety (DMIRS), as it was then known, on behalf of the State.

87    On 30 May 2022, DMIRS issued a news release entitled “New expedited procedure process”, which stated as follows:

The Department of Mines, Industry Regulation and Safety (DMIRS) has published the new expedited procedure process, which will be implemented on 1 June 2022.

Prior to 2022, State policy on the inclusion of the expedited procedure statement in notices issued under section 29 of the Native Title Act 1993 (Cth) applied a ‘blanket approach’ to the application of the expedited statement to particular kinds of tenements. These were prospecting licences, exploration licences, and retention leases [sic] (exploratory titles).

The new process allows DMIRS greater discretion in the application of the expedited statement to such tenements.

In particular, the new expedited procedure process involves:

a.    The introduction of an early risk assessment and triage process to identify tenement applications that are at high risk of a determination by the National Native Title Tribunal (NNTT) that the expedited procedure does not apply, should an objection to the assertion of the expedited procedure statement be lodged with the Tribunal.

b.    The implementation of a case management approach to encourage applicants and native title parties (NTPs) to achieve early agreement making.

c.    Education and engagement with NTPs about the reforms (on request).

d.    Clear engagement protocols for applicants and NTPs to promote early engagement and agreement making between industry and NTPs.

e.    Ongoing discussions with the NNTT regarding the operation of the expedited procedure process.

f.    Ongoing discussions with the Chief Magistrate regarding matters to be resolved in the Warden’s Court.

The purpose of the new process is to encourage early agreement making between parties and reduce delay to the grant of exploratory titles.

More information on the new expedited procedure process is available on the department’s website …

88    The information about the “Expedited Procedure Reforms” available on the Department’s website includes a number of documents.

(a)    An “Engagement Protocols” form, by which grantee parties are requested to provide their current contact details together with details of proposed works and, if requested, an outline of “how the applicant intends to mitigate the risk of a determination by the [NNTT] that the grant of the application does not attract the expedited procedure” and “any prior or planned negotiations with the [native title party]”. The form states that it is intended “[t]o ensure applicants for the grant of a tenement attracting the expedited procedure under the [NTA] are set up for success, and to enable the grant of that tenure in a timely fashion”. It directs the applicant to indicate that it will “[a]ctively engage with the [native title party] as early as reasonably possible to address any concerns the [native title party] has about the grant”. Under the Protocols, if the applicant does not actively engage with the native title party or does not actively participate in proceedings before the NNTT, the Department may give a s 29 notice without the expedited procedure statement, or withdraw the expedited procedure statement, or refuse the application for the tenement.

(b)    A document entitled “Expedited Procedure Case Management Guidelines”, the stated purpose of which is “[t]o provide guidance on the expedited procedure case management process commencing 1 June 2022”, and which “specifically relates to exploratory title assessment and the application of the expedited statement”. The objectives of the Case Management Guidelines are “to provide advice to industry, [native title parties], and the wider community about … [t]he procedure [Department] will follow when progressing an application through the expedited procedure process” and “[w]hat is expected from applicants and [native title parties] to facilitate engagement”. The Case Management Guidelines provide that the Department will commence a case management process when an application for an exploratory title is lodged, and outline the steps in that process.

(c)    A flow chart diagram headed “Guide to Expedited Procedure Case Management within the Resource Access Branch (RAB): DMIRS Case Management Outcomes”.

(d)    A procedure entitled “Guide to the Exploratory Title Assessment and Case Management Process Pursuant to the Native Title Act 1993: Expedited Procedure” (the Procedure), which outlines a seven step assessment and case management process.

(e)    A document entitled “Guidelines for Assessing Hot Spots for Exploratory Titles” (the Hot Spot Guidelines), the stated intent of which is “to provide guidance on how the [Department] will determine if an application is within an area ‘at risk’ of failing a [NNTT] inquiry into whether the expedited procedure applies”. The Hot Spot Guidelines establish an “early risk assessment and triage process” that is undertaken by the Department “[w]hen considering whether the expedited procedure should apply to the grant of a particular tenement”. The term “hot spot” refers to specific areas of the State that have been considered in previous determinations by the NNTT that the expedited procedure does not apply to the grant of an exploratory tenement, or areas in respect of which an expedited procedure statement has been withdrawn on a previous occasion, or where there are sites known to the Department that are considered particularly significant pursuant to s 237 of the NTA. If a “hot spot” is identified, it will be given a “risk rating” based on a range of factors, including the circumstances and the reasoning or findings in any previous NNTT determination.

89    These documents provide evidence of a case management process which is followed by the State when deciding whether an expedited procedure statement is to be included in a notice given under s 29 of the NTA for the proposed grant of an exploratory tenement, such as an exploration licence, a prospecting licence, or a retention licence under the Mining Act. Reading the documents together, the case management process involves the following steps.

(a)    The grantee party must agree to the Engagement Protocols, which encourage engagement and negotiation with native title parties as early as possible.

(b)    The Department undertakes a preliminary assessment of the tenement application to identify whether it attracts the expedited procedure in accordance with the Hot Spot Guidelines.

(c)    If the Department does not identify any “known risk factors to the application of the expedited procedure to the application”, the application will be referred for notification under s 29 of the NTA with the expedited procedure statement.

(d)    If the Department identifies any “known risk factors”, it will conduct a “comprehensive assessment”. This involves correspondence with the grantee party seeking further information, including the existence of any heritage protection agreement (HPA); or negotiations between the grantee party and the native title party, and how the grantee party “intends to mitigate the likelihood of an adverse finding”; or to defend any objection to the inclusion of the expedited procedure statement in a s 29 notice if the matter were to proceed to an inquiry by the NNTT.

(e)    The application is then referred for notification under s 29 of the NTA, either with or without the expedited procedure statement.

(f)    If the expedited procedure statement is included in the s 29 notice and no objection is lodged by a native title party, the Department will “proceed to clear the application for grant as it has fully complied with the future act requirements of the NTA”. If an objection is lodged, the Department will monitor and case manage the application through the expedited procedure process until the objection is withdrawn or determined. Depending on the outcome of the objection, the Department will either clear the application for grant or proceed in accordance with the “full” right to negotiate (that is, the normal negotiation procedure in accordance with s 31 of the NTA).

(g)    The normal negotiation procedure under s 31 of the NTA will be applied if the application is notified without the expedited procedure statement, or if the Department withdraws the expedited procedure statement (including where the grantee party fails to respond to requests for information or does not actively engage with the native title party or actively participate in defending an objection lodged with the NNTT).

90    The State relied on the affidavits of Constance Cocksey, who is the Manager of the Resource Access Branch of the Department that is responsible for the preparation of notices under s 29 of the NTA. In her affidavits, Ms Cocksey described the processes and procedures followed by the State in determining whether or not to include the expedited procedure statement in a s 29 notice. Those processes and procedures are broadly consistent with those set out in the documents addressed above.

(a)    After receiving any application for the grant of an exploratory tenement, the Department undertakes an assessment to determine whether the expedited procedure statement is to be included in the s 29 notice. As a matter of practice, the State does not include an expedited procedure statement in relation to applications for mining leases, which are likely to authorise activities involving major disturbance to land or waters.

(b)    The Department identifies “Hotspot Affected Applications” by reference to an internal database that contains information concerning all past determinations made by the NNTT under s 32(4) of the NTA since 2000, as well as geospatial data in relation to the areas covered by the tenement applications. The Department generates a “quick appraisal” of the relevant area which identifies tenure interests, any registered sites under the Aboriginal Heritage Act 1972 (WA) within five kilometres, any Aboriginal pastoral lease within ten kilometres, and any native title determinations or registered native title claims.

(c)    Applications may be referred to an officer for further assessment using a “risk matrix” based on considerations such as the existence of Aboriginal communities in or near the area of the tenement application, previous NNTT decisions regarding the applicability of the expedited procedure in or near that area, and the existence of registered heritage places in or near that area. The assessment process differs according to the level of risk derived from these considerations, and is described as one of a “basic”, “beavy”, or “heavy” assessment. The risk rating that is assigned to an application ranges from “extremely low” to “extremely high”, each of which is expressed in the risk matrix by reference to the “likely hood [sic] of failure”, which is presumably intended to mean the chance of a determination by the NNTT that the grant is not an act attracting the expedited procedure.

(d)    Ms Cocksey states that the Department’s case management approach “seeks to encourage engagement and agreement making between applicants and native title parties with a view to reaching suitable heritage or native title agreements as appropriate”. Similarly, Ms Cocksey also states that “[t]he purpose of referring the matter into case management is to encourage the applicant to agree to engagement protocols … in order to mitigate the risk of an adverse decision and also to encourage a native title party to actively engage with an applicant as early in the process as possible”.

(e)    The annexures to Ms Cockey’s affidavit include internal documents containing “process maps” (such as “TNT-007 Native Title Expedited Process” and “RTD-034 Preliminary assessment and case management process on hotspots for Exploratory Titles”), along with template notification letters to grantee parties and the native title parties respectively.

91    Ms Cocksey states that, in the period from 1 June 2022 to 31 March 2024, the State gave 3,239 notices under s 29 of the NTA that included the expedited procedure statement, of which 109 notices were given in relation to tenement applications in the Kimberley region. No objections were lodged against the inclusion of the expedited procedure statement in 1,120 (that is, roughly 35%) of those s 29 notices, and those tenements were cleared for grant accordingly.

92    On 8 November 2023, the KLC wrote to the Department in order to provide notice of its intention to commence the current proceeding. Referring to the 2022 Policy, the KLC claimed that the State’s approach to the expedited procedure was inconsistent with the NTA, including because it required the State “to focus upon the risk of a s 29(7) decision being overturned by the [NNTT], rather than the s 237 criteria”. The KLC indicated that it would file an originating application in this Court “seeking a declaration that the June 2022 policy is inconsistent with the NTA, and a final injunction restraining the State from making future section 29(7) decisions in reliance on the June 2022 policy”, and that it may also seek judicial review on behalf of affected native title parties of identified s 29 notices.

93    By letter dated 1 December 2023, the Department advised the KLC that it did not accept the claims regarding the 2022 Policy. The Department referred to the preliminary assessment carried out pursuant to the Case Management Guidelines, and stated that the “risk factors” that were considered in that assessment are “risk factors to the application of the expedited procedure to the application”, and “not solely ‘the risk of a s 29(7) decision being overturned’”. Accordingly, the Department maintained that the assessment process requires an assessment of whether the tenement application attracts the expedited procedure, and that Departmental officers are required to consider the matters in the definition of “act attracting the expedited procedure” in s 237 of the NTA. The Department nevertheless advised the KLC that it was “reviewing the content of documents associated with the June 2022 policy in order to provide greater clarity of expression wherever needed”.

94    For the purposes of the present application, it is unnecessary to make any findings of fact regarding the content or implementation of the State’s policy regarding the inclusion of the expedited procedure statement in notices given under s 29 of the NTA. The evidence adduced on the interlocutory applications has not been tested, and might be supplemented by further evidence if the matter were to progress to a final hearing.

95    Nevertheless, there is at least a prima facie case that, while the State had previously adopted a “blanket” approach to the inclusion of s 29(7) statements in notices for the proposed grant of exploratory tenements, such statements have not been included as a matter of course in s 29 notices given after 1 June 2022. In so far as the inclusion of expedited procedure statements from 1 June 2022 is based on a risk assessment by reference to available information about “hot spots”, this arguably involves some direct or indirect consideration of the criteria in s 237 of the NTA, even if only by reference to past NNTT determinations or the existence of circumstances (such as proximate heritage sites or Aboriginal communities) which may be relevant to those criteria. Nevertheless, there might be a real question for determination as to whether this amounts to “active consideration” of the statutory definition in s 237, if it were to be assumed that such consideration is required as a matter of law on the proper construction of s 29(7) of the NTA.

96    The evidence adduced on the interlocutory application is consistent with a conclusion that the State does engage in a decision-making process in relation to the inclusion of an expedited procedure statement in s 29 notices. That is, at least since 1 June 2022, the Department determines or decides whether or not it will include an expedited procedure statement in each s 29 notice that is given in relation to the proposed grant of an exploratory tenement, and may subsequently make a further decision under s 32(6) of the NTA to withdraw such a statement in relation to a particular notice.

97    It is also relevant to note briefly some aspects of the evidence in relation to the lodging of objections against the inclusion of expedited procedure statements in s 29 notices given by the State in the Kimberley region.

98    The KLC has instructions from multiple native title parties to lodge objections on their behalf against the inclusion of expedited procedure statements in any s 29 notice given to those native title parties, unless the grantee party has entered into a suitable HPA. The KLC usually represents those native title parties in any subsequent negotiations with the grantee party, which may result in the withdrawal of an objection if a suitable HPA is entered into by the grantee party. Having regard to the large number of s 29 notices that include an expedited procedure statement, a significant proportion of the KLC’s financial and other resources may be tied up in dealing with s 29(7) statements for exploratory tenements.

99    Ms Toohey, as the Principal Legal Officer of the KLC, believes that native title parties “are generally able to negotiate HPAs with stronger protections in respect of their native title rights and interests and cultural heritage when the ‘normal negotiation procedure’ applies under section 31 of the NTA”, and that grantee parties “are often less flexible in their position on particular terms of the proposed HPA when the [native title party] does not have any statutory procedural rights on which to rely”. Ms Toohey also refers to the logistical challenges and resources involved in collecting evidence for NNTT inquiries, and the “significant time and emotional energy” required from individual common law native title holders who give evidence for such inquiries. Ms Toohey expressed her belief that “the processes required under the NTA can be tiring, emotionally draining and re-traumatising” for native title holders, and that the diversion of resources to the expedited procedure processes can “undermine the ability of [native title parties] (RNTBCs and individual common law holders) to proactively use, enjoy or benefit from the formal legal recognition” of native title.

100    Some of the other witnesses who gave evidence on behalf of the first to third applicants also expressed their frustration about the processes involved in lodging objections against the inclusion of expedited procedure statements in s 29 notices that are given by the State in respect of the land and waters over which they hold native title rights and interests.

(a)    Mr Robert Watson, the Executive Chair of WAC and a Nyikina Mangala native title holder, stated that lodging objections was resource intensive and occupied a lot of time in Board meetings, and that it was “exhausting for us as a community going through these continuous and repetitive processes”. Mr Watson said that “[i]f mining companies go out on Country without talking to native title holders first, it is a huge breach of trust and respect in the eyes of Nyikina and Mangala people”. He considers that the expedited procedure “puts us native title holders in a vulnerable negotiating position at the outset” and “puts us on the back foot when it comes to negotiating with mining companies for an HPA”, and that “[i]t feels like the State just want to tick a procedural box and move past our rights at the lowest possible cost, with a minimum amount of effort and a short-term vision”.

(b)    Mr Desley Rogers, a director of MAC and a Malarngowem native title holder, also bemoaned the time taken in dealing with expedited procedure objections, especially when the State “keep putting mining and exploration on the same areas and keep humbugging the same Traditional Owners”. Mr Rogers stated that his people are “getting tired of being asked about these areas … we already proved native title, and objecting to the expedited procedure feels like we have to prove it again every time, again and again”. Mr Rogers stated that MAC wants “to make sure that the Government and mining companies come and talk to us first, so we can make sure that country is protected”, and that the expedited procedure bypasses the “rightful people” and is disrespectful.

(c)    Mr Russell Gregory, another director of MAC and a Malarngowem native title holder, stated that a large proportion of Board meetings are occupied in dealing with future acts, including mining and exploration. Mr Gregory also emphasised the importance of HPAs in protecting their country and sacred sites, and building good relationships between mining companies and traditional owners. Mr Gregory stated that the expedited procedure “effectively bypasses the important step of companies talking to the Malarngowem Traditional Owners”, which “goes against the cultural rules around accessing country and seeking permission from the right people”. He considered that “[w]hen the expedited procedure is applied, we have even less hope in getting a HPA in place and forming a good relationship with proponents than we have under the [right to negotiate]”.

(d)    Ms Tiffany Labuc, the General Manager of WAC, referred to the time and resources required to respond to s 29 notices, and the logistical difficulties for WAC in managing that process. Ms Labuc referred to the volume of s 29 notices received by WAC, and stated that she worries about the risk that they might miss a s 29 notice with an expedited procedure statement and that “something will be granted without WAC being able to have a say”.

101    Against that evidentiary background, it is necessary to turn to the parties’ submissions on the summary judgment application.

The State’s submissions

102    The State submitted that the applicants’ claims are based on three central contentions, each of which is demonstrably wrong: first, that the alleged decisions made by the State to include s 29(7) statements in notices under s 29 of the NTA are judicially reviewable decisions; second, that the result of the alleged errors in those decisions is that the expedited procedure statements have no legal or lawful effect; and third, that the Court can declare that the right to negotiate under s 31 of the NTA applies to the proposed grant of the exploration licences the subject of the Malarngowem notice, the Yanunijarra and Walalakoo notices, and the Second Yanunijarra notices.

103    In relation to the first element, the State submitted that the s 29(7) statement is no more than a statement of the Government party’s view that the act is one attracting the expedited procedure, and that the inclusion of such a statement is not governed or restricted by any prescribed criteria, conditions or procedures. In the State’s submission, a notice given by a Government party that includes a s 29(7) statement does not finally determine the substantive issue whether the act is an act attracting the expedited procedure, nor whether or how the proposed future act can be done. While the inclusion of an expedited procedure statement attracts s 32 of the NTA, there are a number of possible outcomes under that section. Any objection by a native title party is “against the inclusion of the statement” rather than alleging error in the view formed by the Government party, and the NNTT as the arbitral body is then required to inquire into and determine the substantive question whether or not the act is an act attracting the expedited procedure: s 32(4). The Government party can give written notice withdrawing its s 29(7) statement at any time before the arbitral body makes a determination, in which case the normal negotiation procedure under s 31 will apply: s 32(7). Otherwise, if the NNTT determines that the act is not an act attracting the expedited procedure within the meaning of s 237, the normal negotiation procedure under s 31 will apply as if the notice did not include the expedited procedure statement.

104    The State submitted that the statutory consequences under ss 29, 31 and 32 of the NTA attach to the fact that the notice includes a statement that the Government party considers the act is an act attracting the expedited procedure, and that the final and operative decision whether the expedited procedure applies is made by the NNTT (assuming that an objection is lodged), subject to a right of appeal to this Court on a question of law (see s 169 of the NTA). While the decision to include an expedited procedure statement has the consequence that s 32 of the NTA applies, the State contends that this does not serve to identify a reviewable decision.

105    The State argued that, at least under the ADJR Act, a reviewable decision must be final and operative and must be a substantive determination: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335–338 (Mason CJ, with whom Brennan and Deane JJ agreed). In the case of a s 29 notice, nothing is finally determined by the inclusion of an expedited procedure statement. The jurisdiction of the NNTT is based on the existence of a s 29(7) statement and the lodgement of an objection against the inclusion of that statement: see Cheinmora v Striker Resources NL (1996) 142 ALR 21 at 41–42 (Carr J). The NNTT is not required to consider or review the basis on which the Government party reached its view that the act is one attracting the expedited procedure. The State submits that the applicants’ construction would result in “fragmentation, inefficiency and uncertainty” in the operation of the right to negotiate under Subdiv P.

106    The State further submitted that the applicants’ claims are inconsistent with the decision of Olney J in Holt, which is addressed below, and that the decision in Holt is correct and should be followed and applied to the present case.

107    The State disputes the Court’s power to make a declaration that a s 29(7) statement has no legal effect, or that the relevant s 29 notice has effect as if the statement had not been included. It submits that there is no legislative purpose revealed by Subdiv P to “invalidate” an expedited procedure statement if the Government party does not properly consider that the act attracts the expedited procedure. Further, the State submitted that the ability of a Government party to withdraw an expedited procedure statement under s 32(7), or for the NNTT to determine under s 32(4) whether or not the expedited procedure applies, is inconsistent with any legislative intention that an alleged error in the decision by the Government party to include the statement is capable of depriving the statement of its legal effect under s 32 of the NTA.

108    Thus, the State argued that s 32 of the NTA prescribes the only circumstances in which an expedited procedure statement can be disregarded, and that a declaration that s 31(1) applies to a particular act can only be made in accordance with the provisions of the NTA. That is, the State submitted that “the Court has no power to grant relief which disregards or ignores the fact of the s 29(7) statement or to make a declaration otherwise than in accordance with those statutory criteria”.

109    In so far as it was suggested that, in the absence of judicial review, a Government party might “without thought” include an expedited procedure statement in a s 29 notice, the State argued that this was a “resort to the extreme”, noting that there was no allegation of bad faith, fraud or dishonesty in the present case. The State’s answer to this suggestion was that the NTA confers on native title parties an opportunity to lodge an objection against the inclusion of an expedited procedure statement in a s 29 notice given by a Government party.

110    In so far as the applicants seek declaratory or injunctive relief in relation to the 2022 Policy and its alleged inconsistency with the NTA, the State submitted that this claim fails for the same reasons, namely that “there is no decision identified that is capable of review or remedy in this Court”. The State submitted that the Court cannot review the alleged 2022 Policy “in a vacuum” and in the absence of a decision that is sufficient to enliven jurisdiction. It says that the alleged 2022 Policy is a policy of the State that is neither required nor authorised by the NTA, and does not give rise to a “matter” arising under the NTA.

Applicants’ submissions 

111    The applicants submitted that the proceeding “raises questions of substantial legal and practical importance about what (if anything) is required of a Government party before it includes a s 29(7) statement in a s 29 notice, whether the [State] is complying with any such requirement, and what (if any) relief may be sought by a person affected by any such non-compliance”. The applicants argued that such questions are inapt for summary dismissal, on the basis that they have serious consequences and involve consideration of the correctness of a previous decision of a single judge of the Court. For the reasons set out above, however, I have reached the view that it is appropriate to resolve the questions of law as to the proper construction of s 29(7) of the NTA for the purposes of determining the State’s application for summary judgment.

112    The applicants submitted that, on its proper construction, s 29(7) requires that the Government party actually to consider whether a future act is an act attracting the expedited procedure as defined in s 237, before it includes an expedited procedure statement in a notice given under s 29. The applicants submit that the Government party must give “active” consideration to each limb of the definition in s 237 on the material reasonably available to it. In other words, the Government party does not have “untrammelled discretion” to include a s 29(7) statement. The applicants emphasised that the language of s 29(7) is that the Government party “considers” the act is an act attracting the expedited procedure, and not that it “asserts” or “contends” that to be the case. The term “considers” refers to a state of mind, which the applicants argued should be construed as a precondition to the exercise of power by the Government party. What must be considered by the Government party mirrors the task of the arbitral body under s 32(4), and requires the definition in s 237 to be read into s 29(7).

113    The applicants acknowledged that the grammatical syntax of s 29(7) does not expressly condition the inclusion of an expedited procedure statement on the Government party first having formed an opinion that the act is one attracting the expedited procedure — cf. Holt at [25], where Olney J observed that “[t]he right to include an expedited procedure statement is not expressed to be conditional”. Nevertheless, the applicants argued that the text of s 29(7) was a “more economical expression” of the idea that, if the Government party considers that an act is an act attracting the expedited procedure, it may include a statement of that opinion in the s 29 notice. The applicants noted that this was consistent with the manner in which Lee J described a predecessor provision in Western Australia v Ward (1996) 70 FCR 265 at 271 (WA v Ward).

114    The applicants submitted that such a construction is supported by the statutory context. In particular, s 213A(3)(b) of the NTA contemplates that a grantee party may apply to the Attorney-General for assistance in relation to the development of a standard form of agreement which would make it more likely that the Government party doing a future act “would consider it an act attracting the expedited procedure”. The applicants submitted that s 213A(3)(b) is premised on Government parties engaging in active consideration whether or not future acts are acts attracting the expedited procedure. The applicants sought to characterise the normal negotiation procedure under s 31 of the NTA as the “default procedure”, which is disapplied by a s 29(7) statement unless the native title parties lodge an objection, and either the statement is withdrawn or the objection is upheld by the NNTT.

115    The applicants referred to the Full Court’s identification in YAC v WA (at [17]) of “the Government party’s decision that the act attracts the expedited procedure”. They distinguished a decision to include an expedited procedure statement from a decision to commence a proceeding which enlivens the jurisdiction of a tribunal, but does not itself affect rights: cf. Holzinger v Attorney-General (Qld) (2020) 5 QR 314 at [50] (Sofronoff P, Morrison and Mullins JJA); Byrne v Marles (2008) 19 VR 612 at [70]–[71] (Nettle JA, with whom Dodds-Streeton JA and Coghlan AJA agreed); Keasey v Director of Housing (2022) 66 VR 45 at [28] (Niall, Emerton and Whelan JJA). In the applicants’ submission, an objection by a native title party against the inclusion of the s 29(7) statement is directed towards the Government party’s decision to include the statement, as opposed to the statement itself. Section 29(7) is given an operation that is independent from s 29(1), in that the notice under s 29(1) can be deemed not to include the s 29(7) statement in certain circumstances and the notice remains effective.

116    In relation to purpose, the applicants submitted that the right to negotiate under Subdiv P is a special measure for the advancement and protection of Aboriginal and Torres Strait Islanders for the purposes of Art 1(4) of ICERD and s 8(1) of the RDA. The expedited procedure is intended to qualify the means by which that purpose is achieved, in order to ensure that the special measure is proportionate to that end. The applicants submitted that the construction of s 29(7) for which they contend does “less harm”, by placing the burden of considering the matters in s 237 on the Government party rather than requiring native title parties continually to prove that s 237 does not apply. The applicants foreshadowed their intention to make detailed submissions on this point at the final hearing, including by relying on the principle that statutory provisions should as far as is possible be interpreted consistently with international law.

117    Accordingly, the applicants submitted that ss 31(1) and 32(1) of the NTA do not refer merely to the fact that specified words have or have not been included in a s 29 notice, but rather should be construed as referring to a statement made in accordance with the requirements of s 29(7) read with s 237. If a s 29(7) statement is legally ineffective, the “pathway to validity” is governed by the normal negotiation procedure under s 31 of the NTA, leading to the satisfaction of one of s 28(1)(f), (g) or (h). Injunctive or declaratory relief is available, irrespective of whether non-compliance with s 29(7) results in invalidity: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [100] (McHugh, Gummow, Kirby and Hayne JJ).

118    The applicants sought to distinguish the decision in Holt, in which Olney J held that a decision to include an expedited procedure statement in a s 29 notice was not reviewable under the ADJR Act. The applicants further submitted that Olney J’s reasoning in Holt was plainly wrong. In so far as Olney J concluded that the inclusion of a s 29(7) statement is “determinative of nothing” (at [25]), the applicants argued that the inclusion of such a statement “is determinative of the validity of the future act, without the native title party being afforded the right to negotiate”. While a native title party can attempt to “switch the tracks” by lodging an objection under s 32(3), it was submitted by the applicants that the decision to include an expedited procedure statement in the s 29 notice “determines whether the native title party’s procedural and substantive statutory rights under Subdiv P will be those on the track starting at s 31(1) or those on the track starting at s 32(1)”.

119    The applicants relied on Griffith University v Tang (2005) 221 CLR 99 at [89], where Gummow, Callinan and Heydon JJ held that reviewability under the ADJR Act “does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise” (emphasis in original). Such an effect on the native title party’s legal rights is sufficient to attract certiorari and declaratory relief: see e.g. Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33 at [59] (Kiefel CJ, Bell, Gageler and Keane JJ); Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [25] (French CJ, Crennan, Bell, Gageler and Keane JJ).

120    The applicants submitted that a person who is affected by an executive policy can seek declaratory relief that the policy is inconsistent with statute and therefore unlawful: Green v Daniels (1977) 51 ALJR 463 at 469 (Stephen J); Minister for Home Affairs v G (2019) 266 FCR 569 at [62] (Murphy, Moshinsky and O’Callaghan JJ). The applicants noted that the “precise incidents” of the 2022 Policy would be a matter of fact for trial, but that they had at least a reasonable prospect of establishing that the alleged policy was inconsistent with what is required by ss 29(7) and 237 of the NTA, particularly in so far as it was focused on “mitigating the risk of ‘adverse’ findings by the Tribunal, rather than whether a particular act meets the s 237 criteria”. The applicants submitted that they had standing in relation to a justiciable controversy in relation to the lawfulness of the alleged 2022 Policy, and that the declarations sought would have foreseeable consequences for the parties.

Construction of Subdivision P

The decision in Holt

121    The proceedings in Holt arose from notices given by the Northern Territory Minister for Resource Development of his intention to grant various exploration licences, mineral claims or petroleum exploration permits in relation to land or waters within the area for which the Northern Land Council or the Central Land Council was the representative Aboriginal/Torres Strait Islander body. At the relevant time, there were no RNTBCs or registered native title claimants in relation to any of the relevant land or waters. The notices contained an expedited procedure statement.

122    The applicant commenced representative proceedings against the Minister and the Territory under Pt IVA of the FCA Act, asserting that he and the group members were aggrieved by alleged “notice decisions” and “expedited procedure decisions”: Holt at [7]. The group on whose behalf the proceedings were brought comprised all persons who were or might be native title holders in relation to any of the land or waters and who might be affected by any applications under the Mining Act 1980 (NT) to which Subdiv P applied: ibid. The application claimed (at [8]) review of certain “notice decisions”, by which the Minister gave notice of his intention to do an act to which Subdiv P applied, and certain:

… expedited procedure decisions”, being “the decisions and conduct of the first and/or second respondents in respect of those applications for exploration licences set out in Schedule A by which the first respondent determined to include a statement under s 32 of the Act in the said notices that the second respondent considers that the granting of those exploration licences is an act attracting the expedited procedure defined in s 237 of the [NTA].

The applicant invoked jurisdiction under the ADJR Act and s 39B of the Judiciary Act, together with associated jurisdiction and accrued jurisdiction, and sought both declaratory relief and orders setting aside each decision: Holt at [6].

123    The applicant in Holt relevantly sought review of the expedited procedure decisions on the following grounds:

(a)    that procedures required by law to be followed in making those decisions were not followed, “in that a notice under section 29 of the Act could only include an expedited procedure statement if the first and second respondents had considered whether the act was an act attracting the expedited procedure, and neither the first nor the second respondent had given proper, genuine and realistic consideration to that issue”;

(b)    that the expedited procedure decisions were an improper exercise of the power in that:

(i)    “the first respondent failed to take relevant considerations into account, namely the matters specified in paragraphs 237(a), (b) and (c)”;

(ii)    “the power was exercised in accordance with a rule or policy that such a statement would be included in all the notice decisions which relate to applications for exploration licences, without regard to the question of whether the particular act is an act attracting the expedited procedure”; and

(iii)    “the decisions were so unreasonable that no reasonable person could have so exercised the power”: Holt at [9].

The applicant also alleged that the notice decisions were invalid in that they incorporated the expenditure procedure decisions, which were invalid for the reasons set out above: ibid.

124    The respondents filed a notice of objection to competency under the ADJR Act: Holt at [10]. However, there was no application for summary judgment or for the hearing and determination of a separate question. Rather, the proceeding went to trial, at which affidavit evidence was adduced by each of the parties without any major objections. As Olney J observed (at [11]), the issues for determination by the Court were “not dependent on any contentious question of fact”.

125    The objection to competency was ultimately upheld, and the proceeding was dismissed. Referring to the judgment of Mason CJ in Bond, Olney J held that neither the notice decisions nor the expedited procedure decisions involved a reviewable decision under the ADJR Act, nor was amenable to relief under the Judiciary Act: Holt at [26], [28].

126    In relation to the notice decisions, Olney J observed that a failure to give notice in accordance with s 29 of the NTA had “its own remedy”, in that the future act would be invalid to the extent that it affected native title: Holt at [20]. In his Honour’s view, “[w]hether or not the notices in question have been given in accordance with s 29 does not depend upon any decision, or conduct in relation to a decision, on the part of the first respondent”, but rather on the form and content of the notices and the manner which they had been given: ibid. Section 29 imposed a mandatory requirement to give a notice before doing the future act, as a condition of doing that act, such that “[a]ny decision made in relation to that process was made by Parliament” and not the respondents: ibid.

127    The applicant contended that there were two “elements” implicit in the inclusion of the expedited procedure statement in the notices relating to the exploration licences: first, that the Government party “considers” that the act attracts the expedited procedure by satisfying the definition in s 237 of the NTA; and second, that the Government party made a discretionary determination that it should include the expedited procedure statement: Holt at [22]. In particular, the applicant submitted that the text, context and purpose of s 32 of the NTA pointed to “a construction of the section as requiring that the Government party actually give consideration to whether the act is an act attracting the expedited procedure within the terms of s 237”, and that “[i]t would be nonsensical if a Government party could include the statement when it did not hold the view that s 237 is satisfied, or when it had not considered that issue”: ibid.

128    Justice Olney commenced his consideration of these submissions as follows (at [23]):

At the outset it may be observed that the submission seems to suggest that the inclusion of the expedited procedure statement is made pursuant to s 32 of the Native Title Act. This is clearly erroneous. Section 32 deals with the effect of the inclusion of such a statement. The statutory basis for including a statement that the Government party considers the act is an act attracting the expedited procedure is found in s 29(7); and that subsection must be construed in the context in which it appears.

After noting (at [24]) that s 29(7) was “couched in permissive terms” and “[did] not involve any value judgment being made”, Olney J continued (at [25]):

The right to include an expedited procedure statement is not expressed to be conditional. It does not involve the Government party making a reasonable assumption (as in subs (6)) nor does it express a requirement that the Government party has first formed the opinion that the proposed act attracts the expedited procedure as a preliminary step to the inclusion of the statement in a notice. The Government party has the option in every case to include or not include such a statement. The option to include the statement is entirely unfettered. The inclusion of the statement is determinative of nothing. It merely places the onus on the native title parties to consider whether or not to lodge an objection against the inclusion of the statement, a step, if taken, that has the effect of enlivening the function of the arbitral body whose role is to determine whether the act is one which attracts the expedited procedure. The inclusion of the expedited procedure statement in a notice under s 29 does not involve a process of decision making that is in any way determinative, nor does it involve any conduct in relation to a decision to which the [ADJR Act] applies.

129    His Honour proceeded (at [21]) to address the Court’s jurisdiction under s 39B of the Judiciary Act, stating that:

The only claim made by the applicant is for review of the decisions identified in the application and no argument has been put to suggest that any different considerations apply to the exercise of the Court’s jurisdiction under the Judiciary Act than apply to an application for review under [the ADJR Act].

Accordingly, Olney J concluded that “[i]n the absence of any decision, there can be no review of a decision whatever jurisdictional basis is relied upon”.

130    It should also be noted that, prior to the decision in Holt, Carr J had reached a similar conclusion in Cheinmora. In that case, the applicants had brought an appeal from determinations made by the NNTT under s 32(4) of the NTA that the grant of exploration licences were acts attracting the expedited procedure: Cheinmora at 23. The applicants relevantly submitted that it was a condition precedent to the exercise of jurisdiction by the NNTT that the Government party “had given consideration to whether the act is an expedited procedure before making a statement to that effect in the notice given under s 29”: Cheinmora at 41. Justice Carr (at 42) contrasted the wording of former s 29(4) (the predecessor to current s 29(7)) with “the mandatory language of s 31(1)” of the NTA, and stated:

A proper construction of s 29(4) does not require, in my opinion, that before the Tribunal may embark upon its inquiry and determination, it be shown that the Government party has directed its mind to the criteria set out in s 237. All that is required is that the Government party includes in its notice a statement that it considers the act is an act attracting the expedited procedure. In those circumstances, the statutory scheme is that if there is no objection from a native title party then the Government party may do the act. If there is an objection then it is for the tribunal to make its predictive assessment and decide whether what is proposed is an act attracting the expedited procedure within the meaning given to that expression by s 237 of the Act. As Mr McIntyre conceded in oral argument, the Tribunal, by carrying out that task in these matters, has effectively “done the job” which, on his submission, it should have been satisfied (as a threshold jurisdictional issue) had been done by the Government party. The duplication involved in such a requirement reinforces my opinion that there should be no such implication read into s 29(4).

Is there a reviewable “decision”?

131    It is apparent that the grounds sought to be advanced by the applicants in the present case bear a close similarity to the arguments that were considered and rejected by this Court in Holt. Ordinarily, a previous decision by a single Justice should be followed unless it is plainly wrong. Nevertheless, having regard to the present context of an application by the State for summary judgment against the applicants, I have considered the proper construction of s 29(7) of the NTA for myself, and have reached the conclusion that the decision in Holt is correct. The inclusion of an expedited procedure statement in a s 29 notice given by a Government party does not involve a decision that is amenable to judicial review under the ADJR Act or in the exercise of the jurisdiction conferred by s 39B of the Judiciary Act.

132    The question turns on the text of s 29(7), construed in the light of its context and purpose. A convenient restatement of the task of statutory construction is found in DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16 at [23], where Gageler CJ, Gordon, Edelman and Gleeson JJ stated:

The principles of statutory construction are well established. The language which has actually been used in the text, in light of its context and purpose, is the surest guide to legislative intention. One reason that the context and purpose of a provision are important to its proper construction is that an object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. Or, as was explained in [Project Blue Sky Inc at [69] (McHugh, Gummow, Kirby and Hayne JJ)], statutory construction requires deciding what the legal meaning of the relevant provision is “by reference to the language of the instrument viewed as a whole”. Further, the purpose of the legislation is not to be derived from any a priori assumption about the desired reach or operation of the relevant provisions.

(Footnotes omitted.)

See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (French CJ); Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [23]–[26] (French CJ and Hayne J).

133    Section 29(7) of the NTA provides that a notice given under s 29 “may” include an expedited procedure statement. On a natural reading of the permissive language used, there is no obligation on the Government party to include, or even to consider including, such a statement in the notice. However, the inclusion of an expedited procedure statement has statutory consequences. While these consequences might be described as procedural in nature, that is not to understate their practical importance in relation to the requirements that must be satisfied in order for the future act validly to affect native title. As discussed above, the mandatory steps required under the “normal negotiation procedure” in s 31(1) are applicable unless the notice includes an expedited procedure statement. The inclusion of such a statement will bring the proposed future act within the “expedited procedure” in accordance with s 32, under which the “normal negotiation procedure” (i.e. the “full” right to negotiate) will only apply if a native title party lodges an objection and the arbitral body determines that the act is not an act attracting the expedited procedure (s 32(5)), or if the Government party withdraws the expedited procedure statement before the arbitral body makes a determination (s 32(7)). As the applicants submitted, the practical effect of the inclusion of a s 29(7) statement is to alter the procedural pathway to validity by “switching the tracks” that the future act must follow from the normal negotiation procedure under s 31 to the expedited procedure under s 32. And if no objection is lodged by a native title party within the four month period, the act is allowed to proceed.

134    Nevertheless, the inclusion of an expedited procedure statement in a s 29 notice does not determine whether or not the act is an “act attracting the expedited procedure”. It is not a substantive determination in that sense. The future act may be done without the normal negotiation procedure only if no objection is lodged within the four month period, in which case it is unnecessary to determine whether the act is in fact one attracting the expedited procedure, or if there is a determination by the arbitral body that the act is not an attracting the expedited procedure. The fact that the s 29 notice includes an expedited procedure statement does not reflect a final or operative decision in relation to the nature or character of the future act or whether and how it may be validly done in accordance with the NTA. As Olney J stated in Holt, “[t]he inclusion of the statement is determinative of nothing”: at [25]. To the extent that there is any substantive determination whether or not the act is an act attracting the expedited procedure, that determination is made by the arbitral body under s 32(4).

135    Starting with the statutory text, s 29(7) does not expressly condition the inclusion of an expedited procedure statement on any decision being made or any state of satisfaction being formed by the Government party. In my view, it is difficult to read the provision as simply an “economical” way of saying, [i]f the Government party considers the act is an act is an act attracting the expedited procedure, it may include a statement that it so considers in the notices under this section”, as the applicants submit. I do not regard the manner in which Lee J paraphrased the operation of s 29 in WA v Ward (at 271) as of assistance in relation to the proper construction of s 29(7) of the NTA. The subject of the language used in s 29(7) is “[t]he notices under this section”, and the object of that language is the statement included in the notices. The focus is on the inclusion in the notices of an expedited procedure statement, and it is the inclusion of the statement that is given statutory consequences under Subdiv P, as opposed to any opinion formed by the Government party.

136    This is supported by the statutory context of s 29(7). Each of ss 31(1) and 32(1) operate by reference to whether the s 29 notice includes an expedited procedure statement. Section 32(3) allows a native title party to lodge an objection with the arbitral body “against the inclusion of the statement”. Section 32(7) provides that the Government party may withdraw its statement, upon which s 31(1) applies “as if the notice did not include such a statement”. These provisions are concerned with the inclusion of a statement in the s 29 notices, and not with the anterior decision by the Government party to include that statement nor the state of mind on which that decision was based. The inclusion of the statement commences a process by which, if an objection is lodged by a native title party, it may be determined whether the act is an act attracting the expedited procedure.

137    Other provisions elsewhere in the NTA refer to the expedited procedure statement without referring to any opinion formed or held by the Government party — for example, s 75 describes an expedited procedure objection application as an “[a]pplication objecting as mentioned in subsection 32(3) against the inclusion of a statement that an act is an act attracting the expedited procedure” (emphasis added). This is consistent with the nature of the proceedings on any such objection application, which are not directed to demonstrating any error in the view formed by the Government party that the act is an act attracting the expedited procedure. Similarly, in setting out the pathways to validity of a future act to which Subdiv P applies, s 28(1)(c) describes s 32(2) as applying “if no objection is made after the giving of notice that the act attracts the expedited procedure” (emphasis added). These provisions do not suggest that any effect is attached by the NTA to the state of mind formed by the Government party in relation to the inclusion of an expedited procedure statement in a s 29 notice.

138    In so far as the applicants sought to find support for their position in s 213A(3)(b) of the NTA, that provision simply permits the grant of assistance by the Attorney-General to a grantee party in relation to the development of agreements which would make it more likely that the Government party would consider that a future act is an act attracting the expedited procedure. This might be said to provide some statutory recognition of the decision-making process that may be engaged in by a Government party when considering whether to give a notice under s 29 that includes an expedited procedure statement. However, it does not itself alter the construction of s 29(7), nor require a conclusion that s 29(7) confers a power or function on the Government party to satisfy itself that the proposed future act is an act attracting the expedited procedure within the meaning of s 237 of the NTA.

139    It may be accepted that s 29(7) refers to a statement that the Government party “considers” that the act is an act attracting the expedited procedure, and not that it “asserts” or “contends” or even “believes” that the act meets that description. However, I consider that this language is relatively neutral on the issue of construction raised in the present case. The critical question is whether the provisions operate on the fact that the notice includes an expedited procedure statement, as opposed to the formation of a state of mind by the Government party, however that state of mind might be described or characterised. The statement of the Government party’s view or opinion that the expedited procedure applies is a mechanism by which that question may be raised for determination by the arbitral party, if a native title party joins issue by lodging an objection against the inclusion of the expedited procedure statement.

140    Section 29(7) does not expressly confer any statutory power or discretion on a Government party. Rather, the subsection contemplates that a notice given by the Government party may include a statement which has certain procedural consequences under Subdiv P. It can be accepted that, when the Government party includes an expedited procedure statement in a s 29 notice, it makes a decision of some kind to do so. In Holt, Olney J referred to the Government party’s “option” to include the statement: at [25]. In exercising that option, the Government party is taking a step which must involve a decision to include the statement. But in so far as any power is exercised by the Government party in deciding to include an expedited procedure statement in a s 29 notice, it is not a power that is conferred or governed by the NTA. The power may perhaps be sourced in the executive power of the State. It is unnecessary to decide whether the exercise of such power might be reviewable on the grounds of fraud or bad faith or improper purpose, as no such allegation has been raised in the present case. The grounds of review in the originating application are concerned primarily with an alleged failure by the State to give genuine and proper consideration to the definition in s 237 when deciding to give a notice that includes a statement under s 29(7), and are similar to the grounds of review relied upon in Holt.

141    In so far as the inclusion of an expedited procedure statement in a notice given by a Government party initiates a process by which it may be determined whether the act attracts the expedited procedure, an analogy might be drawn with decisions to commence or institute a proceeding before a court or tribunal. As was held in Holzinger, in the context of a challenge to a decision by the Attorney-General not to refer a petition of mercy to the Court of Appeal under s 672A of the Criminal Code 1899 (Qld), a decision to commence litigation before a court is not ordinarily subject to judicial review, on the basis that such a decision does not itself create or extinguish rights or liabilities: at [50] (Sofronoff P, Morrison, Mullins JJA). Similarly, while the inclusion of an expedited procedure statement has procedural consequences under Subdiv P, by allowing a native title party to invoke the jurisdiction of the arbitral body to determine an expedited procedure objection application, the decision to include the statement does not itself determine the substantive issue that remains for determination by the arbitral body. Thus, if the decision of a native title party to lodge an objection under s 32(3) would not be amenable to judicial review, it is difficult to see why the inclusion of an expedited procedure statement in a s 29 notice should be independently reviewable for “error”.

142    It may also be noted that a decision by the Government party not to include an expedited procedure statement in a s 29 notice would not be amenable to judicial review (for example, by a grantee party), nor would a decision by the Government party under s 32(7) to withdraw such a statement. While this might simply reflect the absence of any obligation on the Government party to include a statement under s 29(7), irrespective of whether the proposed future act is in fact an act attracting the expedited procedure within the meaning of s 237; it does not bolster the applicants’ argument that native title parties should be able to seek judicial review of a decision by the Government party to give a notice that includes an expedited procedure statement. This is even more so in circumstances where Subdiv P explicitly provides an avenue through which a native title party can challenge the inclusion of an expedited procedure statement in a s 29 notice, by lodging an objection with the arbitral body within the four month objection period.

143    In that regard, it seems clear that the arbitral body, here the NNTT, has jurisdiction to determine an expedited procedure objection application irrespective of whether or not there is any “error” in a decision by the Government party that it considers that the act is an act attracting the expedited procedure. In so far as the applicants submitted that the NNTT’s jurisdiction depended on the legal “validity” of the Government party’s decision to include an expedited procedure statement in the s 29 notice, this would give rise to intolerable uncertainty and would undermine the purposes of Subdiv P. Apart from the principles derived from cases such as Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; 2 ALD 1, the question of the NNTT’s jurisdiction in relation to an objection application was determined by Carr J in Cheinmora. An analogous submission was also rejected in a different context in Kemmpi v Adani Mining Pty Ltd (No 2) (2019) 271 FCR 423 at [82] (Rares ACJ and Robertson J, with whom Perry J agreed), in relation to the determination of an objection to the registration of an ILUA following its certification by the representative Aboriginal Torres/Strait Islander body.

144    The applicants in Cheinmora had objected to the jurisdiction of the NNTT on the ground that “it was a condition precedent to the exercise of the tribunal’s jurisdiction under s 32 that the government party has given consideration to whether the act is an act attracting the expedited procedure before making a statement to that effect in the notice given under s 29”: at 41 (Carr J). On an appeal to this Court from the NNTT’s decision, Carr J held (at 42) that it did not need to be shown that the government party had directed its mind to the criteria in s 237 before the NNTT could “embark upon its inquiry and determination” — in other words, the Tribunal’s jurisdiction was enlivened by the inclusion of the expedited procedure statement and the objection by a native title party, and did not depend on any decision-making process engaged in by the Government party when including the expedited procedure statement in the s 29 notice, nor on the legal “efficacy” of such a statement. An allegedly “erroneous” s 29(7) statement does not divest the NNTT of jurisdiction, nor prevent the application of s 32 of the NTA if a native title party invokes the jurisdiction of the NNTT by lodging an objection.

145    Accordingly, on their proper construction, ss 29(7), 31 and 32 of the NTA operate on the fact that the notice given by the Government party includes an expedited procedure statement, and not on any anterior consideration or the formation of any opinion by the Government party that the act is an act attracting the expedited procedure within the meaning of s 237 of the NTA.

146    In my view, such a construction is consistent with the purposes of the NTA, including in particular Subdiv P. The applicants emphasised that the right to negotiate was a special measure for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders, and submitted that the expedited procedure was directed to ensuring that this special measure was proportionate to that purpose and consistent with Art 1(4) of the ICERD. However, that does not assist in determining the balance that was ultimately struck by the provisions contained in Subdiv P, including the balance between the statutory objects of providing for the recognition and protection of native title, and establishing ways in which future dealings may proceed and setting standards for those dealings: see NTA, s 3(a) and (b). As Carr J observed in Cheinmora (at 35), the object stated in s 3(a) should not be given precedence over the object in s 3(b), and “[t]he extent of parliament’s protective intent should … be discerned from the language used by parliament rather than any presumption taken from the particular constitutional source” (i.e. as a law enacted under the power conferred by s 51(xxvi) of the Constitution).

147    Subdivision P reflects and gives effect to a choice by the Parliament not to require the “full” right to negotiate where the proposed future act is unlikely to result in interference with the community or social activities carried on by native title holders, or interference with areas or sites of particular significance to native title holders in accordance with their traditions, or major disturbance to the land or waters concerned. In such circumstances, rather than requiring the parties to engage in the normal negotiation procedure under Subdiv P, the Parliament has established an “expedited” process to determine whether or not the proposed future act is of that character. Under this process, native title parties have a right to object to the inclusion of an expedited procedure statement in a s 29 notice, and the arbitral body must ultimately determine whether the proposed future act may be done without the normal negotiation procedure (unless either the objection or the expedited procedure statement is earlier withdrawn). Any objection by a native title party must be lodged within the period of four months after the notification day specified in the s 29 notice.

148    In my view, the legislative intention to establish an “expedited” procedure is not consistent with the insertion of a process by which the Government party is required to make an administrative decision that it considers that the act is an act attracting the expedited procedure, which may then be subject to judicial review on the ground that the Government party has made a legal or jurisdictional error in its consideration or application of the definition contained in s 237. This would give rise to fragmentation, uncertainty and delay that is antithetical to the notion of an expedited process. It would potentially undermine or frustrate the exercise by the NNTT or other arbitral body of its jurisdiction to inquire into and determine any expedited procedure objection applications.

149    The applicants’ construction of s 29(7) of the NTA finds no support in the extrinsic material. With the caveat that one cannot substitute such material for the statutory text, the explanatory memoranda for the Native Title Bill 1993 (Cth) and subsequent amending legislation are consistent with an assumption that the provisions operate on the fact of an expedited procedure statement having been included in a s 29 notice, as opposed to any anterior decision made by the Government party as to the application of s 237 of the NTA.

150    Part B of the Explanatory Memorandum to the Native Title Bill 1993 (Cth) (1993 Explanatory Memorandum) contained a flow chart “showing how future acts can be done and how the right to negotiate applies”: at pp 13–14. This flow chart distinguished the processes applicable where, on the one hand, the situation where “notice states expedited procedure applies” and, on the other hand, where there was “no statement about expedited procedure”: at p 14. The notes to the individual clauses, in relation to what became s 29(4) (the predecessor to current s 29(7)), that “the government intending to do the act may state in the notice given under this clause that it believes the act falls under the expedited procedure set out in clause 31”: at p 21. In relation to the clause that became s 32 of the Act, the 1993 Explanatory Memorandum stated that the expedited procedure would operate where “the relevant government includes in its notice a statement that the act is one that attracts the expedited procedure”, and either the native title parties do not object or “the relevant arbitral body decides that the criteria in clause 222 are met and the act does attract the expedited procedure”: at p 22. The process envisaged by the 1993 Explanatory Memorandum turned on the inclusion in the notice of a statement that the expedited procedure was applicable, as opposed to the underlying state of mind formed or held by the Government party. Similarly, an expedited procedure objection application was described in the 1993 Explanatory Memorandum as “an objection to using the expedited procedure for a future act”: at p 39.

151    In 1998, the NTA was substantially amended by the Native Title Amendment Act 1998 (Cth), including the future act regime and a new Subdiv P. The Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) (1997 Explanatory Memorandum) identified the purpose of the amendments to the right to negotiate provisions as being “to streamline the right to negotiate processes so that unnecessary delays are eliminated while maintaining the protection of the legitimate interests of native title holders and claimants”: at p 150 [18.11]. The 1997 Explanatory Memorandum later described the expedited procedure as “one way in which the right to negotiate process can be fast-tracked” (at p 174 [20.13]), and stated that “[i]n essence the expedited procedure allows future acts covered by the right to negotiate provisions to be done without negotiations taking place if native title parties do not object, are unsuccessful in their objections or withdraw their objections” (at p 180 [20.34]).

152    In relation to s 29(7), the 1997 Explanatory Memorandum stated that “[a]s under the existing NTA, a notice under section 29 may specify that the Government party thinks the act will attract the expedited procedure”: at p 176 [20.24]. Thus, it was contemplated that the Government party could give notice that the expedited procedure applies to a future act (i.e. as an act attracting the expedited procedure) and, if native parties objected to the expedited procedure for that particular act, the arbitral body was required to determine whether the act meets the requirements set out in s 237 of the NTA: 1997 Explanatory Memorandum at p 181 [20.39]. A diagram setting out an overview of the processes under the right to negotiate provisions identified this step in the following terms: “Notice states that expedited procedure applies and statement has not been withdrawn”: 1997 Explanatory Memorandum at pp 148–149, diagram 18.1.

153    Nothing in the extrinsic material suggests that s 29(7) confers a separate decision-making power or function on the Government party requiring an application of the criteria set out in s 237 and a decision that the act is an act attracting the expedited procedure before it includes a s 29(7) statement in a notice given under s 29 of the NTA. That is not to suggest that the Government party need not have regard to the terms of s 237 when including an expedited procedure statement in a s 29 notice, nor does it mean that an expedited procedure statement can be included even if the Government party does not consider that the future act is an act attracting the expedited procedure, let alone if it considers that the future act is not such an act within the meaning of s 237. As Lee J noted in WA v Ward at 271, it might be expected that the Government party would only include an expedited procedure statement where there were grounds for considering that the act was one attracting the expedited procedure. There may nevertheless be practical limits on the information available to the Government party when giving the notice. The inclusion by the Government party of an expedited procedure statement cannot be equated with the evaluative and predictive exercise performed by the arbitral body in applying s 237 of the NTA. The critical point is that the applicable provisions in Subdiv P operate on the fact that an expedited procedure statement is included in a s 29 notice, and the decision by the Government party to include such a statement in the notice does not involve the exercise of a power or the performance of a function under the NTA, nor does that decision comprise a discrete step in the right to negotiate under Subdiv P.

154    The inclusion of an expedited procedure statement in a s 29 notice commences or triggers a process. Under that process, a native title party is given an opportunity to object against the inclusion of the statement and, unless the objection is otherwise resolved, the arbitral body will ultimately determine whether or not the act in question is an act attracting the expedited process. The decision by the Government party to include an expedited procedure statement lacks “the character or quality of finality” in the nature of a determination resolving a substantive issue, and is therefore not a “decision” for the purposes of the ADJR Act: Bond at 336 (Mason CJ). The inclusion of an expedited statement might even be described as a procedural step or formality, rather than a substantive determination that confers, alters or affects legal rights or obligations: cf., in relation to a decision to give a notice prior to bringing proceedings to recover a penalty under the Income Tax Assessment Act 1936 (Cth), Guss v Deputy Commissioner of Taxation (2006) 152 FCR 88 at [22], [35], [38]–[43] (Edmonds J), but cf. at [5], [11], [17] (Gyles J), [68]–[69], [75], [82] (Greenwood J). Every case will depend on the particular statutory framework in which the alleged decisions are made.

155    Nor can the Government party’s decision to include an expedited statement be regarded as an essential preliminary or a condition precedent to the making of an ultimate decision that will affect legal rights and interests: cf. Bond at 339, 340 (Mason CJ), 377 (Toohey and Gaudron JJ); see also Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159–160, 165, 170 (Brennan CJ, Gaudron and Gummow JJ). In determining an expedition procedure objection determination, the arbitral body is not required to have regard to any decision of the Government party, nor the reasons why the Government party considered that the act meets the criteria set out in s 237 of the NTA.

156    I do not consider that this conclusion is affected by the decision in Tang, which was primarily concerned with the question whether a decision was made “under an enactment”, in the sense that the decision is required or authorised by a statute and affects legal rights or obligations by virtue of statute. In the present case, the decision by a Government party to include an expedited procedure statement in a s 29 notice is neither required nor authorised by the NTA. Rather, the relevant provisions treat the inclusion and existence of an expedited procedure statement in a s 29 notice as a factum upon which the processes in Subdiv P operate.

157    While the applicants also rely on the jurisdiction conferred by s 39B of the Judiciary Act, I do not consider that this overcomes the essential difficulties set out above: cf. Holt at [28] (Olney J). The grant of certiorari is directed at removing the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has a discernible or apparent legal effect on rights: see Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at [28] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). For the reasons set out above, the inclusion of an expedited procedure statement in a s 29 notice does not have any discernible or apparent legal effect on the rights of native title parties that is capable of being quashed or removed by an order in the nature of certiorari. Declaratory relief is not available because s 29(7) is not conditioned on a valid decision by the Government party that it considers that the act is an act attracting the expedited procedure on a correct understanding of the law and based on some material. Rather, ss 29(7), 31 and 32 operate on the fact that the notice given under s 29 includes an expedited procedure statement. Accordingly, no question arises whether or not the inclusion of the expedited procedure statement in a particular notice is in breach of the NTA and unlawful: cf. Project Blue Sky at [100] (McHugh, Gummow, Kirby and Hayne JJ).

158    Moreover, it is doubtful that the Court could make a declaration that the expedited procedure statements in the relevant notices have “no lawful effect”, such that the s 29 notices could be treated as if they did not include such a statement. As the State submits, a declaration that s 31(1) of the NTA applies to a future act can only be made if that is in accordance with the provisions of the NTA. Under Subdiv P, s 31(1) only applies if the notice given under s 29 does not include an expedited procedure statement, or if the statement is withdrawn by the Government party under s 32(7), or if the arbitral body determines that the act is not an act attracting the expedited procedure. Further, even if it were possible to “invalidate” the expedited procedure statement as a result of some legal or jurisdictional error in the anterior decision by the Government party to include the statement in the s 29 notice, this would give rise to questions whether the invalid s 29(7) statement could be severed from the giving of notice under s 29(1).

The 2022 Policy

159    The relief claimed by the KLC in the originating application included a declaration that the alleged 2022 Policy is “inconsistent with the requirements of the [NTA] concerning the inclusion of a statement under s 29(7) of the [NTA]”. The declaratory relief is directed to the implementation and application of the 2022 Policy from 1 June 2022, including in making the alleged decisions to include an expedited procedure statement in the Malarngowem notice and the Yanunijarra and Walalakoo notices, as well as “other decisions purportedly made from time to time pursuant to s 29(7) f the [NTA] from 1 June 2022”.

160    I note that the proposed amended originating application expands the relief sought by YAC, WAC and MAC to include an additional declaration that the 2022 Policy, as implemented and applied in the respective decisions to include an expedited procedure statement in the relevant s 29 notices, was inconsistent with the requirements of s 29(7) of the NTA.

161    As set out above, I am not satisfied that the applicants have no reasonable prospect of successfully proving the existence of the alleged 2022 Policy, and its application in making decisions under s 29(7) of the NTA including in relation to the Malarngowem notice, the Yanunijarra and Walalakoo notices and the Second Yanunijarra notices.

162    However, for the reasons set out above, I have not accepted the applicants’ submissions regarding the construction of s 29(7) and other relevant provisions in Subdiv P. Accordingly, on the proper construction of those provisions, the NTA does not impose the requirements that the applicants allege are inconsistent with the 2022 Policy. In other words, the foundation on which the applicants base their claims regarding the inconsistency of the 2022 Policy with the NTA cannot be made out.

163    Further, and perhaps more importantly, the conclusion reached above that the alleged decisions by the State to include an expedited procedure statement in the s 29 notices are not amenable to judicial review under the ADJR Act or the Judiciary Act precludes or renders inutile any declaratory relief in relation to the implementation or application of the 2022 Policy in making those decisions.

164    It can be readily accepted that a policy adopted by an administrative decision-maker must not be inconsistent with the statute under which the relevant decision is made. This may provide a ground on which to challenge an administrative decision that is made in the application of any such policy. Further, where the policy is contained in an instrument or direction that is made or given pursuant to a power conferred by statute, it might be possible to challenge the validity of the instrument or direction as exceeding the limits of the relevant statutory power on the ground of inconsistency with the governing statute.

165    However, where the alleged policy does not have statutory force, it is more difficult to see how such an administrative policy can itself be reviewable in the abstract, divorced from its application in the context of a particular administrative decision that affects rights or interests. Judicial review of a particular decision might provide a vehicle to consider whether a policy that was applied in making that decision is consistent with the legal requirements governing the exercise of the administrative power. The question is not necessarily the validity of the policy, but the legality of the decision that was made pursuant to that policy. Unless and until the policy is applied, there is unlikely to be any matter or controversy that is capable of being the subject of declaratory relief.

166    In the present case, the alleged 2022 Policy is not required or authorised by or under the NTA. The question whether the 2022 Policy is consistent with the requirements of Subdiv P does not itself give rise to a matter arising under the NTA: cf. s 213(2); see also Judiciary Act, s 39B(1)(c). In so far as the 2022 Policy may have been followed or applied by the Government party in making decisions to give notices under s 29 that include an expedited procedure statement, those decisions are not reviewable under the ADJR Act or the Judiciary Act.

Conclusion — no reasonable prospect of success

167    Accordingly, I am satisfied that the applicants have no reasonable prospect of successfully prosecuting the proceeding within the meaning of s 31A(2) of the FCA Act. The interlocutory application by the State is therefore granted, and judgment must be given for the State against the applicants in relation to the whole of the proceeding, which will be dismissed.

Abuse of process

168    Under r 26.01(d) of the Rules, a party may apply for an order that judgment be given against another party because the proceeding is an abuse of process of the Court.

169    The State submitted that the proceeding was an abuse of process on the basis that the first to third applicants had made a “forensic decision” to lodge objections with the NNTT against the inclusion of the expedited procedure statement in the Malarngowem notice and the Yanunijarra and Walalakoo notices. The jurisdiction of the NNTT having been enlivened, the NNTT is able to deal with the substantive issue whether each of the identified acts is an act attracting the expedited procedure. Indeed, the State submitted that the NNTT is under a duty to determine the applicants’ objections, if they are not withdrawn. The State also argued that the proceeding is unfairly oppressive and would bring the administration of justice into disrepute if it were allowed to proceed, relying on their arguments about the construction of the relevant provisions in Subdiv P and the evidence that had been adduced as to the State’s process concerning the inclusion of expedited procedure statements in notices given under s 29 of the NTA.

170    As Kiefel CJ, Bell and Keane JJ stated in UBS AG v Tyne (2018) 265 CLR 77, the circumstances in which the use of the Court’s processes will amount to an abuse “do not lend themselves to exhaustive statement”: at [1]. They include cases where “the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute”: ibid.; see also Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507 at [25] (French CJ, Bell, Gageler and Keane JJ). In Walton v Gardiner (1993) 177 CLR 378 at 392–393, Mason CJ, Deane and Dawson JJ stated that “[t]he inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness”. Their Honours gave examples of proceedings that “can be clearly seen to be foredoomed to fail”, proceedings in relation to which the court is “a clearly inappropriate forum”, or proceedings whose “continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings”: ibid. It may also include cases involving unreasonable or unjustifiable delay, or proceedings that are instituted for an improper purpose: see e.g. Walton at 410–411 (Brennan J).

171    The question whether a proceeding is an abuse of process requires an evaluation of all of the circumstances of the particular case. The power rests upon public interest considerations including “preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes” and “the necessity of maintaining confidence in, and respect for, the authority of the courts”: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [69]–[70] (French J).

172    In the light of my conclusion above that the proceeding should be dismissed under s 31A(2) of the FCA Act, it is strictly unnecessary for me to determine the State’s application for judgment against the applicants under r 26.01(d) of the Rules. Nevertheless, if it were otherwise established that the applicants had a reasonable prospect of success in the proceeding, I would not have been satisfied that the commencement or continuation of the proceeding was an abuse of the process of the Court.

173    The applicants lodged their objections with the NNTT largely for protective purposes, under protest as to the NNTT’s jurisdiction, in circumstances where s 32(3) of the NTA requires any objection to be lodged within the period of four months after the notification day. Although I do not accept the applicants’ submission that the jurisdiction of the NNTT is conditioned on the legal validity or efficacy of the expedited procedure statement included in the notices under s 29(7) of the NTA, I am not satisfied that the applicants are attempting to litigate the issues raised by this proceeding in a different forum nor to pursue inconsistent avenues to contest the inclusion of the expedited procedure statement. The applicants sought the adjournment of their objections before the NNTT pending the outcome of this proceeding. While the availability of an alternative means of challenging the inclusion of the expedited procedure statements under Subdiv P might be relevant to the exercise of the Court’s discretion to grant the relief sought in this proceeding, I do not consider that the claims raised by the applicants in this proceeding are vexatious or oppressive or would otherwise bring the administration of justice into disrepute.

174    Further, I note that the proposed amendment to the originating application would include a claim in relation to the inclusion of an expedited procedure statement in a s 29 notice in circumstances where the first applicant failed to lodge an objection within the four-month period. Accordingly, these proceedings would be the only means by which the first applicant can agitate its challenge to the legal efficacy of the expedited procedure statement in order to displace the operation of s 32(2) of the NTA.

175    On the other hand, there no longer appears to be a live issue in relation to the proposed grant of exploration licence E04/2725, which was the subject of the Yanunijarra and Walalakoo notices, in circumstances where Swiim Holdings as the grantee party has since withdrawn its tenement application and the expedited procedure objection application has now been finalised by the NNTT. This might have warranted the dismissal of that part of the proceeding on the grounds that it had become moot and no longer raised any live controversy between the parties. There would nevertheless have remained live issues concerning the Malarngowem notice and, subject to the grant of leave to amend the originating application, the second Yanunijarra notices.

APPLICATION FOR LEAVE TO AMEND

176    The outcome on the State’s application for summary judgment renders it unnecessary to determine the application made by the applicants for leave to amend the originating application and concise statement. However, if it had been necessary to do so, I would have been inclined to exercise the discretion to grant leave to amend.

177    The principal claim sought to be added by the proposed amendment concerned the relief sought by YAC arising from the inclusion of an expedited procedure statement in the s 29 notice for the proposed grant of exploration licence E80/5931 to Uro Western.

178    The applicants relied on evidence concerning the significance to the native title holders of the area covered by the exploration licence, which overlaps or is proximate to sites registered under the Aboriginal Heritage Act as well as an Aboriginal reserve and an Indigenous Protected Area. There was also evidence about the circumstances in which YAC had failed to lodge an objection in response to the second Yanunijarra notices. The objection period coincided with the recent resignation of Mr Murray as the full-time CEO of YAC, and his replacement by Mr Tromp as Acting General Manager. Each of Mr Murray and Mr Tromp gave evidence about their lack of awareness of the second Yanunijarra notices until after the expiry of the objection period, as well as the arrangements and practices in relation to the receipt by YAC of correspondence and communications both by mail and by email. It is unnecessary to make detailed findings on this evidence. It is common ground between the parties that the second Yanunijarra notices were in fact sent to and received by YAC, and that Mr Murray signed for the receipt of the notices which were sent by registered post.

179    The State relied on the evidence of Mr Weidemann, a tenement adviser who was retained by Uro Western as the grantee party for E80/5931. Mr Weidemann relevantly stated that he had checked the tenement register and confirmed that no objections had been lodged against the expedited procedure statement, upon which he had formed the belief that the application for the exploration licence would proceed to grant. He said that he had advised a director of the parent company of Uro Western, Mr Justin Orr, accordingly. On 2 April 2024, Mr Weidemann was informed by the State Solicitor’s Office that YAC were seeking to include E80/5931 in this proceeding, and that the State had agreed to provide the KLC with at least five business days’ notice prior to any grant of that exploration licence. Mr Weidemann deposed that, if E80/5931 was not granted imminently, Uro Western and its parent corporation would suffer prejudice in relation to its staffing and contractor arrangements, as well as in obtaining project funding.

180    Under rr 8.21 and 16.53 of the Rules, the Court has power to grant leave to amend an originating application or a pleading, including to add or substitute a new claim for relief arising out of the same, or substantially the same, facts as those already pleaded, or facts or matters that have occurred or arisen since the start of the proceeding. The grant of leave to amend is discretionary, and the power must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions in s 37M of the FCA Act. This includes the objectives of the just and timely determination of all proceedings before the Court, and the efficient use of judicial and administrative resources.

181    While I accept that the amendment would give rise to some prejudice to Uro Western, I consider that, on balance, it would be appropriate to grant the application for leave to amend the originating application and concise statement to include claims in relation to E80/5931. Although YAC was given notice of the proposed act under s 29 of the NTA and failed to lodge an objection within the four month period, it promptly took steps to agitate its claims in this proceeding. If those claims were accepted, the expedited procedure under s 32 of the NTA would not apply to the grant of E80/5931. Further, even if leave to amend were to be refused, YAC would have been entitled to commence a separate proceeding in which similar relief is claimed in relation to the proposed grant of E80/5931. It is more efficient for these claims to be brought in the present proceeding, together with the overlapping claims made in relation to the Malarngowem notice and the alleged 2022 Policy. This would also allow the issues raised by the applicants to be considered in a slightly different factual context, in which no objection was lodged against the expedited procedure statement nor are there extant proceedings before the NNTT in which the substantive issue can be determined whether the act is an act attracting the expedited procedure.

182    For these reasons, I would have granted the application for leave to amend.

COSTS

183    Finally, it is necessary to deal with the costs of the proceeding.

184    Except where otherwise provided, the award of costs is in the discretion of the Court: FCA Act, s 43(2).

185    Where it applies, s 85A of the NTA provides that each party to a proceeding must bear his or her own costs unless the Court orders otherwise, including where the Court is satisfied that any unreasonable act or omission of a party has caused another party to incur costs in connection with the institution or conduct of the proceeding. A provision such as s 85A operates to remove any expectation that costs will usually follow the event unless some “cause” is shown for a different order: see Akiba v Queensland (2010) 184 FCR 406 at [61] (Greenwood J); Cheedy v Western Australia (No 2) (2011) 199 FCR 23 at [9] (North, Mansfield and Gilmour JJ).

186    Section 85A is contained in Pt 4 of the NTA, the provisions of which apply “in proceedings in relation to applications filed in the Federal Court that relate to native title”: NTA, s 80. This covers applications for determinations of native title or for compensation, as well as appeals from first instance decisions in such matters: Cheedy at [10]–[11], [35]–[38] (North, Mansfield and Gilmour JJ). It might arguably also cover some other applications made under the NTA, such as an appeal from a determination of the NNTT in a right to negotiation application: Cheedy at [37]; cf. Lardil Peoples v Queensland (2001) 108 FCR 453 at [156] (Dowsett J); O’Mara v Minister for Lands (2008) 167 FCR 145 at [34] (Reeves J); Corunna v South West Aboriginal Land and Sea Council (No 2) (2015) 235 FCR 53 at [44]–[49] (Barker J).

187    More generally, the terms of s 85A can have a wider indirect effect in matters arising under or involving the interpretation of the NTA, as the Full Court noted in Cheedy at [12]:

In proceedings which are not “proceedings” under the [NTA] but nevertheless concern matters arising under the [NTA] and its interpretation, s 85A is relevant to the way in which the Court exercises its costs discretion but does not directly apply: Murray v Registrar, National Native Title Tribunal (2003) 132 FCR 402 …

Accordingly, where the central issues in a proceeding concern the interpretation of important provisions of the NTA, the Court can take into account the legislative intention of the NTA and, where appropriate, “‘follow the spirit’ of s 85A(1)”: Cheedy at [13].

188    It was common ground that s 85A of the NTA is not directly applicable to the present proceeding. Nevertheless, given that the subject matter of the proceeding concerns the proper interpretation of Subdiv P of the NTA and the legal effect of notices given under s 29 in relation to proposed future acts, I consider that it is appropriate to take into account the policy underlying s 85A when making orders in relation to costs. It is also relevant more generally to take into account the reasonableness of the applicant in bringing the application, and the general importance both of the clarification of the law for the State as a public authority, and of securing proper compliance with the law: Duncan v Chief Executive Offıcer Centrelink (No 2) [2008] FCA 667 at [4] (Finn J); see also Fesl v Delegate of the Native Title Registrar (No 2) (2008) 173 FCR 176 at [22]–[26] (Logan J); Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams (No 2) [2018] FCA 2058 at [21]–[29] (Barker J).

189    Having regard to all relevant circumstances, including the legislative intention reflected in s 85A of the NTA, I consider that the parties should bear their own costs of the proceeding, including the State’s application for summary judgment. While the State has been successful in seeking judgment against the applicants, there has been no unreasonable conduct on the part of the applicants in either bringing or maintaining the proceeding to date. Further, there is a public interest in clarifying the meaning and application of the relevant provisions in Subdiv P of the NTA, and the question of whether and to what extent decisions by the Government party to include an expedited procedure statement in a s 29 notice are amenable to judicial review. I have also taken into account the matters addressed in the evidence relied upon by the applicants in support of their application for a maximum costs order. In all the circumstances, the appropriate order is that each party should bear its own costs.

Application for a maximum costs order

190    It remains only to deal with the applicants’ interlocutory application for an order capping the maximum party/party costs that may be recovered for the proceeding to $100,000.

191    Rule 40.51(1) of the Rules specifically provides that a party may apply for an order specifying the maximum costs as between party and party that may be recovered for the proceeding, other than costs that a party is ordered to pay in certain circumstances such as failure to comply with (or an extension of time for complying with) an order or the Rules, the grant of leave to amend pleadings or particulars, or a failure to conduct the proceeding in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible.

192    The power conferred by r 40.51 is broadly concerned with “access to justice, public interest, and a desire to limit the costs of all parties, particularly in less complex and shorter cases”: McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 2) [2019] FCA 215; 135 ACSR 278 at [71] (Beach J). In exercising the discretion to make a maximum costs order under r 40.51, the Court may have regard to a range of factors, including the timing of the application, the complexity of the factual or legal issues raised, the strength of the claims, the undesirability of forcing an applicant to abandon the proceeding, whether the case involves a public interest element, the amount of costs likely to be incurred, and whether any opposing party has been uncooperative or has delayed the proceedings: see generally Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 at [6]–[13] (Bennett J); Houston v New South Wales [2020] FCA 502 at [17]–[20] (Griffiths J).

193    In support of their application for a maximum costs order in the present case, the applicants relied on evidence about the nature and functions of the KLC as the representative Aboriginal/Torres Strait Islander body for the Kimberley region, including the sources of its funding and the constraints on its resources. The KLC has indemnified the first to third applicants against any adverse costs orders, and those applicants would not have been able to commence the proceeding without such an indemnity. Ms Toohey gave evidence about the consequences for the KLC if the applicants were ordered to pay the State’s costs in the proceeding, including the potential impacts on the KLC’s other functions and activities in relation to the representation and protection of the rights and interests of native title holders. The applicants submitted (among other things) that the proceeding concerned matters of public interest, and that the proposed amount of $100,000 was reasonable in all the circumstances. In this regard, the proposed cap on costs recoverable by the parties would equally apply to the applicants in the event that a costs order in the proceeding were ultimately to be made in their favour.

194    Given the outcome of the State’s application for summary judgment and the disposition on costs as set out above, it is unnecessary to determine the application for a maximum costs order. In my view, it is not appropriate to form a view on this application on a hypothetical basis in which summary judgment had not been given. Accordingly, I do not propose to make any order on this aspect of the applicants’ interlocutory application.

CONCLUSION

195    For the reasons set out above, judgment is given for the State against the applicants in relation to the whole of the proceeding. It follows that the proceeding should be dismissed, with no orders as to costs.

Associate:

Dated:    15 May 2025