QGC Pty Limited v Bygrave (No 2) (includes Corrigendum dated 22 September 2010) [2010] FCA 1019 (17 September 2010)

Last Updated: 24 September 2010

FEDERAL COURT OF AUSTRALIA

QGC Pty Limited v Bygrave (No 2) [2010] FCA 1019

Citation:		QGC Pty Limited v Bygrave (No 2) [2010] FCA 1019
Parties:		QGC PTY LIMITED ACN 089 642 553 v LOUISE BYGRAVE, DELEGATE OF THE NATIVE TITLE REGISTRAR and RUSSELL TATOW, PATRICK SILVESTER, CYNTHIA KEMP, EVE FESL, TROY NOBLE, FRED TULL, FERGUS WATERTON, RICHARD DOYLE AND MADONNA BARNES ON BEHALF OF THE IMAN PEOPLE #2 and QUEENSLAND SOUTH NATIVE TITLE SERVICES LIMITED
File number:		QUD 147 of 2010
Judge:		REEVES J
Date of judgment:		17 September 2010
Corrigendum:		22 September 2010
Catchwords:		ADMINISTRATIVE LAW – judicial review – decision of Delegate of National Native Title Registrar not to give notices of an Indigenous Land Use Agreement (ILUA) under s 24CH of the Native Title Act 1993 (Cth) – whether decision within the terms of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – consideration of whether the decision was made under an enactment – Held that the plain language and statutory context of s 24CH indicated that the Delegate was not expressly or impliedly required or authorised under s 24CH to make any decision about whether the ILUA met the prerequisite provisions of the Native Title Act 1993 (Cth) before giving notice of it in accordance with s 24CH – the decision was therefore not a decision under an enactment – however decision reviewable under s 39B of the Judiciary Act 1903 (Cth) NATIVE TITLE – Indigenous Land Use Agreements (ILUA) – requirements for registration – Delegate concluded that an agreement was not an ILUA under the Native Title Act 1993 (Cth) because one of the nine persons comprising the registered native title claimant (RNTC) had refused to sign it and therefore this person was not a party to the agreement contrary to s 24CD of the Native Title Act 1993 (Cth) NATIVE TITLE – construction of s 24CD of the Native Title Act 1993 (Cth) – native title rights and interests are generally held by a large group of indigenous people where the membership is constantly fluctuating – such an unincorporated group of persons does not constitute a legal person, it has no existence separate from the members of the group and therefore cannot make a binding contract – the purpose of s 24CD is to overcome this difficulty by providing a statutory mechanism by which such a group of persons can enter into an ILUA under the Native Title Act 1993 (Cth) – this requires a legal person or persons to act as their representative thereby allowing them to enter into an ILUA – consideration of whether an RNTC is a legal person with a legal personality distinct from its members – Held an RNTC is not a legal person as the definition of RNTC in s 253 of the Native Title Act 1993 (Cth) relies upon the individuals who comprise it and the Native Title Act 1993 (Cth) specifies other bodies that serve similar roles to be corporate bodies NATIVE TITLE – consideration of whether s 24CD specifies that the RNTC as a collective entity, or the individual persons who comprise the RNTC, must be parties to an ILUA – s 24CD requires that “all persons” in the native title group be parties to the ILUA and that includes all RNTCs – Held that “all” in s 24CD(2)(a) refers to any RNTCs for the area of land, not all of the individuals who comprise the RNTC – Held that “person” in s 24CD(1) refers to those persons or entities described in s 24CD (2) and (3) whether they are legal persons or not – Held that “RNTC” in s 253 of the Native Title Act 1993 (Cth) is to be construed to mean one or more (but not necessarily all) of the persons who are named in the entry on the Register of Native Title Claims as the applicant – Held that the specified parties in s 24CD(1) and (2) is not the RNTC as a collective entity, because it is not a legal person, nor is it all the individuals who comprise the RNTC, rather it is one or more of the persons named in the relevant entry in the Register acting as representative parties NATIVE TITLE – further held – no requirement for collective or unanimous action by the members of an RNTC acting as representative parties – s 24CD does not provide an opportunity for an individual member of a RNTC to frustrate or veto a native title contracting group entering into an ILUA by refusing to become a representative party to that ILUA – no requirement for a representative party under s 24CD to assent to, or to sign, the ILUA – no requirement in s 24CD of the Native Title Act 1993 (Cth) that the representative parties to an ILUA under s 24CD have to consent to becoming parties to the ILUA – the ILUA provisions of the Native Title Act 1993 (Cth) contain a specific process which provides evidence independently of an ILUA that the native title contracting group has assented to – it is therefore open to the native title contracting group to rely on this process rather than indicating its assent by signature – the authorisation given to the applicant by the native title claim group under s 251B does not provide any authorisation to either the applicant or the RNTC to perform any role under the ILUA provisions of the Native Title Act 1993 (Cth) – any alteration, by s 66B of the Native Title Act 1993 (Cth), of the composition of the authorised application under s251B, will not effect the authorisation of the making of an ILUA under s 251A
Legislation:		Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Acts Interpretation Act 1901 (Cth) s 22 Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3(1), 5, 5(1), 5(1)(c), 5(1)(d), 12 Copyright Act 1968 (Cth) s 36 Judiciary Act 1903 (Cth) s 39B, 39B(1A)(c) Federal Court of Australia Act 1976 (Cth) ss 21, 37M Native Title (Indigenous Land Use Agreements) Regulations 1999 reg 7 Native Title (Prescribed Body Corporate) Regulations reg 4(1) Native Title Act 1993 (Cth) ss 3(b), 24AA(2), 24AA(3), 24CA, 24CB, 24CC, 24CD, 24CD(1), 24CD(2), 24CD(2)(a), 24CD(2)(b), 24CD(2)(c), 24CD(2)(c)(ii), 24CD(3), 24CD(3)(b), 24CD(4), 24CD(5), 24CD(6), 24CD(7), 24CE, 24CF, 24CG, 24CG(2), 24CG(3), 24CG(3)(a), 24CG(3)(b), 24CH, 24CH(1), 24CH(2), 24CH(2)(a), 24CH(2)(b), 24CH(2)(c), 24CH(2)(d)(ii), 24CH(3), 24CI, 24CJ, 24CK, 24CL, 24CL(2), 24CL(2)(a), 24CL(2)(b), 24EA, 24EA(1)(a), 24EA(1)(b), 24EA(2), 24EB, 29, 30(4), 56(2)(a)(ii), 57(2)(a)(ii), 59, 61(1), 61(2), 62A, 66(3)(a), 66B, 87A, 87A(1)(c), 185, 186, 186(1)(d), 190(1), 190A, 190B, 190C 190E, 201B, 203A(1), 203AD, 203BE, 203BE(1)(b), 203BE(5), 203BE(6), 226, 227, 233, 251A, 251B, 253, Subdivision B of Div 3, Pt 2, Subdivision C of Div 3, Pt 2, Subdivision D of Div 3, Pt 2, Subdivision E of Division 3, Pt 2, Division 3 of Pt 2
Cases cited:		Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Alderson v Northern Land Council (1983) 67 FLR 353 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164 Australian Trade Commission v Goodman Fielder Industries Limited [1992] FCA 307; (1992) 36 FCR 517 Butchulla People v Queensland (2006) 154 FCR 233; [2006] FCA 1063 Carlton Cricket & Football Social Club v Joseph [1969] VR 487 Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 Commonwealth v Yarmirr (2001) 208 CLR 1; [2001] HCA 56 Cooper Brookes (Wollongong) Proprietary Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 Daniel v Western Australia (2002) 194 ALR 278; [2002] FCA 1147 Doolan v Native Title Registrar (2007) 158 FCR 56; [2007] FCA 192 Ex parte Goddard; Re Falvey (1946) 46 SR(NSW) 289 Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150; [2008] FCA 150 Freeman v McManus [1958] VR 15 Griffiths University v Tang (2005) 221 CLR 99; [2005] HCA 7 Holborow v Western Australia [2002] FCA 428 Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574; [2009] FCAFC 33 Jarrott v Ackerley (1915) 85 L J Ch 135 Lawson v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 Lennon v State of South Australia [2010] FCA 743 Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 Murray v National Native Title Tribunal (2003) 132 FCR 402; [2003] FCAFC 220 Parker v South Eastern Railway Co (1877) 2 CPD 416 Project Blue Sky Inc v Australian Broadcasting Tribunal (1998) 194 CLR 355; [1998] HCA 28 QGC Pty Limited v Bygrave [2010] FCA 659 R v Duncan; Ex parte Australian Iron & Steel Proprietary Limited (1982–[1983] HCA 29; 1983) 158 CLR 535 Re Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations [1995] HCA 31; (1995) 184 CLR 620 Sambo v Western Australia (2008) 172 FCR 271; [2008] FCA 1575 Taff Vale Railway v Amalgamated Society of Railway Servants [1901] UKHL 1; [1901] AC 426 The Chaff and Hay Acquisition Committee v J.A. Hemphill & Sons Proprietary Limited [1947] HCA 20; (1947) 74 CLR 375 The Duke of Buccleugh (1889) 15 PD 86 Tigan v Western Australia [2010] FCA 993 Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165; [2004] HCA 52 Williams v Coulthard [1948] SASR 183 Williams v Hussey [1959] HCA 51; (1959) 103 CLR 30 Willis v Association of Universities of the British Commonwealth [1965] 1 QB 140 University of New South Wales v Moorhouse (1975) 133 CLR 1; [1975] HCA 26 Baxt R, “The Dilemma of the Unincorporated Association” (1973) 47 ALJ 305 Macquarie Dictionary (4th ed)
Dates of hearing:	24, 25, 28 June 2010
Place:	Alice Springs (Heard in Brisbane)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	125
Counsel for the Applicant:	Mr G Hiley QC with Ms H Bowskill
Solicitor for the Applicant:	McCullough Robertson
Counsel for the First Respondent:	Mr P Bickford
Solicitor for the First Respondent:	Holding Redlich
Counsel for the Second Respondents (excluding Ms Barnes):	Mr D Rangiah SC with Ms N Kidson
Solicitor for the Second Respondents (excluding Ms Barnes):	Michael Owens
Counsel for the Third Respondent:	Mr D O’Gorman SC with Ms J Brien
Solicitor for the Third Respondent:	Gilkerson Legal
Solicitor for the Cross-Respondent:	The Cross-Respondent appeared in person

FEDERAL COURT OF AUSTRALIA

QGC Pty Limited v Bygrave (No 2) [2010] FCA 1019

CORRIGENDUM

1. In the fifth paragraph of the catchwords, in the third last line, “s251B” should read “s 251B”.
2. In the fifth paragraph of the catchwords, in the second last line, the word “effect” should read “affect”.
   

I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated: 22 September 2010

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 147 of 2010

BETWEEN:

QGC PTY LIMITED ACN 089 642 553 Applicant

AND: BETWEEN: AND:

LOUISE BYGRAVE, DELEGATE OF THE NATIVE TITLE REGISTRAR First Respondent RUSSELL TATOW, PATRICK SILVESTER, CYNTHIA KEMP, EVE FESL, TROY NOBLE, FRED TULL, FERGUS WATERTON, RICHARD DOYLE AND MADONNA BARNES ON BEHALF OF THE IMAN PEOPLE #2 Second Respondents QUEENSLAND SOUTH NATIVE TITLE SERVICES LIMITED Third Respondent RUSSELL TATOW, PATRICK SILVESTER, CYNTHIA KEMP, EVE FESL, TROY NOBLE, FRED TULL, FERGUS WATERTON AND RICHARD DOYLE ON BEHALF OF THE IMAN PEOPLE #2 Cross-claimants MADONNA BARNES Cross-respondent

JUDGE:	REEVES J
DATE OF ORDER:	17 SEPTEMBER 2010
WHERE MADE:	ALICE SPRINGS (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1. That part of the Delegate’s decision, in which she found that the requirements of s 24CD(1) and (2)(a) of the Act had not been met, and consequently found that the QGC – Iman agreement was not an indigenous land use agreement within the meaning of s 24CA of the Act, be set aside.
2. By way of a declaration that, in relation to the QGC – Iman agreement, the requirements of s 24CD(1) and (2)(a) of the Act have been met by naming as parties to the agreement the nine second respondents whose names appear in the entry on the Register of Native Title Claims as the applicant in relation to the Iman #2 claim.
3. The Delegate be directed to:

(a) give notice of the QGC – Iman agreement in accordance with s 24CH of the Act; and

(b) otherwise deal with the application to register the QGC – Iman agreement according to law.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 147 of 2010

BETWEEN:

QGC PTY LIMITED ACN 089 642 553 Applicant

AND: BETWEEN: AND:

LOUISE BYGRAVE, DELEGATE OF THE NATIVE TITLE REGISTRAR First Respondent RUSSELL TATOW, PATRICK SILVESTER, CYNTHIA KEMP, EVE FESL, TROY NOBLE, FRED TULL, FERGUS WATERTON, RICHARD DOYLE AND MADONNA BARNES ON BEHALF OF THE IMAN PEOPLE #2 Second Respondents QUEENSLAND SOUTH NATIVE TITLE SERVICES LIMITED Third Respondent RUSSELL TATOW, PATRICK SILVESTER, CYNTHIA KEMP, EVE FESL, TROY NOBLE, FRED TULL, FERGUS WATERTON AND RICHARD DOYLE ON BEHALF OF THE IMAN PEOPLE #2 Cross-claimants MADONNA BARNES Cross-respondent

JUDGE:	REEVES J
DATE:	17 SEPTEMBER 2010
PLACE:	ALICE SPRINGS (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

INTRODUCTION

1. Indigenous Land Use Agreements or ILUAs play a very important role under the Native Title Act 1993 (Cth) (“the Act”). In broad terms, they can allow persons other than the native title holders to carry out activities on land or waters, referred to in the Act as “future acts”, and affect any native title rights and interests held in that land or waters, without those acts being invalid under the provisions of the Act that protect native title. Given this effect, it may not be surprising that an agreement has to meet various pre-requisites set out in the Act before it can be recognised as an ILUA and operate in this way. These proceedings concern one such agreement. As will appear below, I have ultimately concluded that this agreement meets the disputed prerequisites for an ILUA under the Act. That conclusion has required me to review the Act in some detail and to grapple with its many novelties, complexities and idiosyncrasies. In this statutory environment, any exercise in construction is fraught with difficulty and it not always possible to achieve an entirely satisfactory result.

FACTUAL AND LEGISLATIVE BACKGROUND

2. The Iman People have made an application for the determination of native title under the Act in relation to an area of land in southern Queensland. Their application is known as the Iman #2 claim. The nine second respondents are the authorised persons who are jointly identified as the “applicant” for the Iman #2 claim: see s 61(2) of the Act. As such, they are also the registered native title claimant (“RNTC”): see ss 253 and 186.
3. QGC Pty Limited wants to develop a natural gas project in the Surat Basin in southern Queensland. The Iman #2 claim covers the area of land where this project is to be located. This necessarily involves QGC undertaking “future act” activities on that land that will affect the native title rights and interests the Iman People claim to hold.
4. In late 2008, QGC commenced negotiations with the Iman People with a view to entering into an agreement which would operate as an ILUA. Those negotiations eventually resulted in a written agreement being prepared, which I will refer to in these reasons as the QGC – Iman agreement. The first section of the QGC – Iman agreement is headed “Parties”. It describes the parties to the agreement as follows:

QGC Limited ACN 089 642 553 and on behalf of QGC
Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle and Madonna Barnes in their capacity as the Registered Native Title Claimant for the Iman People #2’s Native Title Claim (RNTC).

5. The QGC – Iman agreement was submitted to an authorisation meeting of the Iman People on 5 December 2009. At that meeting, the members of the Iman #2 claim group were present, together with a number of other indigenous persons who claimed to hold native title in relation to the land, but were not at that time included in the Iman #2 claim group. In order to avoid the many other expressions that are expressly defined in the Act, where it is appropriate I will refer to this group of persons in these reasons as the native title contracting group. During the meeting, that group agreed to, and adopted, a decision-making process and then followed that decision-making process to pass a number of resolutions. They included resolutions:
   • authorising the making of the QGC – Iman agreement; and
   • authorising QGC to apply to the Native Title Registrar to have the QGC – Iman agreement registered on the Register of ILUAs.

The latter was also reflected in cl 5.1(c) of the QGC – Iman agreement, which provided that: “The Parties agree to this Agreement being registered”. In addition, the members of the Iman #2 claim group separately resolved to direct that all, or a majority of, the members of the RNTC, sign the QGC – Iman agreement.

6. Subsequent to this authorisation meeting, all the members of the RNTC, with the exception of Ms Barnes, signed the QGC – Iman agreement.
7. On 9 March 2010, QGC applied to the Native Title Registrar to have the details of the QGC – Iman agreement entered on the Register of ILUAs under the Act. If the details of the QGC – Iman agreement are entered on that Register, the relevant parts of the agreement will operate to validate “future acts” on the land in question in the way described in [1] above: see s 24EB of the Act.
8. At this point, it is convenient to mention the role of Queensland South Native Title Services Limited, the third respondent. It was made a party to these proceedings following an application it made under s 12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”): see [2010] FCA 659.
9. Queensland South is a recognised representative body having been recognised as such by the Commonwealth Minister under s 203AD of the Act. As a recognised representative body, Queensland South has responsibility for representing the interests of native title holders and those who claim to hold native title in that region or area which broadly encompasses southern Queensland. The claim area of the Iman #2 claim falls within this region or area. One of Queensland South’s responsibilities under the Act is to provide a certificate in relation to any application to register an ILUA under the Act, where the land or waters covered by the ILUA falls within its region or area: see s 24CG(3)(a). That certificate is to the effect that: in its opinion, all reasonable efforts have been made to identify all persons who hold, or may hold, native title in relation to the land or waters covered by the ILUA and the persons so identified have authorised the making of the ILUA in accordance with s 251A: see s 203BE(1)(b), (5) and (6).
10. On 26 February 2010, Queensland South issued such a certificate in relation to QGC’s application to register the QGC – Iman agreement.
11. When the Delegate of the Native Title Registrar (the first respondent in these proceedings) came to consider QGC’s application to register the QGC – Iman agreement, she concluded it was: “not an ILUA within the meaning of s 24CA of the [Act]” because Ms Madonna Barnes, one of the nine persons jointly identified as the RNTC, had refused to sign the agreement. Thus, so the Delegate reasoned, Ms Barnes was not a party to the agreement and this was contrary to s 24CD of the Act, which required all the individual members of a registered native title claimant to be parties to the agreement. Accordingly, the Delegate decided she was neither obligated nor empowered to give notice of the QGC – Iman agreement in accordance with s 24CH. That decision has lead to these proceedings.
12. Finally, it should be noted that Ms Barnes has a dual role in these proceedings. First, because she is one of the persons who is named as a member of the RNTC, Ms Barnes has been included as one of the nine second respondents. And, because the other eight second respondents have issued a cross-claim against her seeking an order that she forthwith sign the QGC – Iman agreement, she has also been separately named as a cross-respondent in these proceedings. I should also add that Ms Barnes has appeared in person in these proceedings and has not been represented by a legal practitioner.

THE ISSUES TO BE DETERMINED

13. QGC relies upon s 5 of the AD(JR) Act or, in the alternative, s 39B of the Judiciary Act 1903 (Cth), to challenge the validity of the Delegate’s decision.
14. It is common ground between the parties that I have to consider three broad issues in determining QGC’s challenge. They are:
    1. whether the decision of the Delegate is a decision within the terms of s 5 of the AD(JR) Act and, if not, whether QGC can rely upon s 39B of the Judiciary Act 1903 (Cth);
    2. whether the Delegate’s construction of s 24CD(1) of the Act is correct; and
    3. whether Ms Barnes should be ordered to sign the QGC – Iman agreement.

This third issue will only arise for determination if QGC is unsuccessful on the first two issues. I will deal with these issues in order.

THE STATUS OF THE DELEGATE’S DECISION

The Delegate’s decision had to be “made ... under an enactment”

15. Section 5(1) of the AD(JR) Act allows a person who is aggrieved by “a decision to which this Act applies” to seek to have that decision reviewed in the Federal Court or the Federal Magistrates Court. The expression “a decision to which this Act applies” is defined in s 3(1) of the AD(JR) Act to mean: “a decision of an administrative character made ... under an enactment”. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, Toohey and Gaudron JJ explained the expression “under an enactment” as follows (at 377):

A decision under an enactment is one required by, or authorized by, an enactment. ... The decision may be expressly or impliedly required or authorized. ... If an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power, a finding to that effect is readily characterized as a decision “under an enactment”.

This statement was quoted with approval in Griffiths University v Tang (2005) 221 CLR 99; [2005] HCA 7 at [60] per Gummow, Callinan and Heydon JJ (see also at [89]).

16. The question whether a decision is one that is expressly or impliedly required or authorised by an enactment requires the particular provision of the enactment concerned to be construed. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 (“Alcan”), the plurality of Hayne, Heydon, Crennan and Kiefel JJ emphasised that: “The language which has actually been employed in the text of legislation is the surest guide to legislative intention”: at [47]. Their Honours went on to add that: “may require consideration of the context, which includes the general purpose and policy of a provision”.
17. To similar effect, in the earlier decision of Project Blue Sky Inc v Australian Broadcasting Tribunal (1998) 194 CLR 355; [1998] HCA 28 (“Project Blue Sky”), the majority (McHugh, Gummow, Kirby and Hayne JJ) held that a legislative provision should be construed: “by reference to the language of the instrument viewed as a whole”; and by considering: “the context, the general purpose and policy of [the] provision and its consistency and fairness”. They added that such a consideration would normally begin by: “examining the context of the provision that is being construed”: at [69].

The Delegate made her decision under s 24CH

18. While the Delegate’s decision predominantly involved her construing s 24CD of the Act, the particular provision under which she purported to decide to act, or not to act, was s 24CH. So much is clear, in my view, from the first paragraph of her reasons for decision where she said that: “This document sets out my reasons for the decision to not give notice of the Agreement in accordance with s 24CH of the Act”. Section 24CH(1) provides:

(1) The Registrar must:

(a) give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:
(i) the Commonwealth Minister;
(ii) if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;
(iii) any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;
(iv) any local government body for the area covered by the agreement;
(v) any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and
(b) notify the public in the determined way of the agreement in accordance with subsection (2).

The statutory context and purpose of s 24CH – the ILUA provisions of the Act

19. Before considering whether the language of this provision expressly or impliedly required or authorised the Delegate to make the decision she did, it is convenient to provide some background to its statutory context and purpose. Division 3 of Pt 2 of the Act, which includes s 24CH, primarily deals with “future acts” and ILUAs. That is made clear in one of the introductory sections, s 24AA(2), which states that: “basically, this Division 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”. Section 24AA(3) then provides, among other things, that: “A future act will be valid if the parties to [an ILUA] consent to it being done and, at the time it is done, details of the [ILUA] are on the Register of Indigenous Land Use Agreements”. For present purposes, a “future act” is any “act” (as broadly defined in s 226) which “affects” (as defined in s 227), ie extinguishes, or is wholly or partly inconsistent with the continued existence, enjoyment, or exercise of, native title: see s 233.
20. There are three different types of ILUAs under the Act: body corporate agreement ILUAs, area agreement ILUAs and alternative procedure agreement ILUAs. The one QGC claims to have entered into with the Iman People is an area agreement ILUA. This is so because it applies to an area of land where there is no registered native title body corporate for the whole of the area: see s 24CC. Subdivisions B, C and D of Div 3, P t 2 prescribe what is required for an agreement to be a body corporate agreement ILUA, an area agreement ILUA and an alternative procedure agreement ILUA, respectively.
21. The provisions in Subdivision C, dealing with an area agreement ILUA, are essentially split into two groups: those that prescribe the pre-requisites for an area agreement ILUA (ss 24CA to 24CE) and those that prescribe the procedural requirements for the registration of an agreement as an area agreement ILUA (ss 24CF to 24CL).
22. In summary, the prerequisite provisions require that: an area agreement ILUA must be about one or more of a number of subject matters (set out in s 24CB) in relation to an area of land; as noted above, not relate to an area of land where there is a registered native title body corporate for the whole of the area (see s 24CC); include certain specified persons as parties to the agreement (see s 24CD); and be given for any lawful consideration and subject to any lawful conditions (see s 24CE).
23. The procedural requirements for registration follow a familiar pattern and prescribe a number of steps that need to be taken. In summary, they are: making an application for registration of the agreement on the Register of ILUAs (see s 24CG); giving public notice of specified details of the agreement (see s 24CH partly set out at [18] above); lodging objections against the registration of the agreement (see s 24CI); and deciding whether or not to register the agreement on the Register of ILUAs (see s 24CJ).
24. Under s 24CG(2) of the Act, the application for registration must be accompanied by a copy of the agreement and certain other information and documents that are prescribed in reg 7 of the Native Title (Indigenous Land Use Agreements) Regulations 1999. One obvious purpose of these provisions is to ensure the Registrar is provided with the critical details of which notice has to be given under s 24CH of the Act. Those critical details are spelt out in s 24CH(2). They include: the area of land covered by the agreement (see s 24CH(2)(a)); the name and contact address of each party to the agreement (see s 24CH(2)(b)); and the details of the future acts that are to be validated by the agreement (see s 24CH(2)(c)). Finally, in making the decision under s 24CJ, the Registrar must take into account the conditions set out in s 24CK or 24CL of the Act, depending upon whether the application for registration was certified by the recognised representative body for the area, or not, respectively. As I have already mentioned above, the QGC application fell into the former category.
25. In Murray v National Native Title Tribunal (2003) 132 FCR 402; [2003] FCAFC 220 (“Murray”), the Full Court said that the purpose of ss 24CG and 24CL of the Act was (at [23]): “to ensure that all persons who hold, or may hold, native title in the area have been identified and notified of the agreement and have either authorised the making of the agreement or successfully taken steps to formalise their claim to hold native title in relation to land or waters in the area covered by the agreement”. While this statement was specifically directed to the provisions of ss 24CG and 24CL, I consider it aptly identifies more generally the purpose of the procedural provisions of Subdivision C of Div 3, Pt 2. Any construction of s 24CH that promotes this purpose should therefore be preferred: see Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235 and Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 at 262. However, I fail to see how applying the prerequisite provisions of the Act (above) – whether that be s 24CD, or some, or all, of the others – before giving notice of the agreement under s 24CH, serves to do that. I will come back to some aspects of the context of these provisions shortly.

No decision required by the language of s 24CH

26. Before doing that, I will deal with the language of s 24CH of the Act. In my view, the use of the word “must” at the outset of s 24CH – a word which the Macquarie Dictionary (4th ed) relevantly defines to mean: “indicating obligation or necessity” – indicates in the clearest terms that the Delegate is obliged to proceed to give notice of the agreement in accordance with subsection (2) without, at that stage, giving any consideration to any other matters, much less as to whether the agreement could be classified as an ILUA under the Act. Put another way, there is nothing in the language of the provision to indicate that, at this particular stage of the registration process, the Delegate is expressly or impliedly authorised or required to make any decision about the taxonomy of the agreement.

No decision required by the context of s 24CH

27. In addition to this, I consider there are at least two reasons why this conclusion about the import of the language of s 24CH is supported by its statutory context. First, the registration process, of which giving notice under s 24CH is one of the early steps, concludes with an express requirement for the Delegate to make a decision whether or not to register the agreement. That is contained in s 24CJ, which relevantly provides that: “The Registrar must, after the end of the notice period, decide whether or not to register an agreement covered by an application under this Subdivision on the Register of Indigenous Land Use Agreements.” (emphasis added). This provision is in similar clear and obligatory terms to s 24CH.
28. Furthermore, in my view, this express requirement also carries with it an implicit requirement for the Delegate to decide, at that stage, whether the agreement meets all of the prerequisite provisions for an ILUA under the Act: see ss 24CB to 24CE, summarised at [22] above. In this respect, I note, and respectfully agree with, the observations of Logan J to similar effect in Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150; [2008] FCA 150 (“Fesl”) at [37]. All this being so, it is highly unlikely, in my view, that the Legislature intended that the same decision (about whether the agreement meets these prerequisite provisions) should be made near the beginning of the registration process, before notice is given under s 24CH of the Act. In other words, I also respectfully agree with the conclusion of Logan J in Fesl, albeit in a different context, viz a challenge to the registration of an ILUA, that (at [39]):

The only decision which falls to the Registrar (or a delegate) to make under Subdiv C of Div 3 of Pt 2 of the Native Title Act which has the requisite quality of statutory provision and affectation of legal rights to make it a “decision” for the purposes of the AD(JR) Act is a decision under s 24CJ as to whether or not to register an agreement on the Register: Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at [89].

29. The second reason why I consider that the context supports the conclusion (above) about the import of the language of 24CH of the Act, arises from the provisions of ss 24CD, 24CH(2)(d)(ii) and 24CL(2). As I have mentioned above, s 24CD requires certain specified persons to be parties to the agreement. One of those persons is any registered native title claimant for the area of land – in this case, the second respondents. As it happened, the Iman #2 claim was lodged and registered before the QGC – Iman agreement was made. However, s 24CH has to be construed by reference to the Act as a whole and to take account of the range of circumstances in which the provisions may apply.
30. One of those circumstances is that addressed by ss 24CH(2)(d)(ii) and 24CL(2) of the Act. Both those provisions apply where the agreement in question has not been certified – as it was by Queensland South in this case – by the recognised representative body for the area under s 203BE(1)(b). In that situation, the former provision requires the s 24CH notice to include a statement that, within the notice period, ie three months after the notification date set by s 24CH(3): “any person claiming to hold native title in relation to land or waters in the area covered by the agreement may wish, in response to the notice, to make a native title determination application”. Then, the latter provision requires the Registrar, in deciding whether or not to register the agreement, to be satisfied that the following persons (among others) are parties to the agreement:
    • any person who is, at the end of the notice period, a registered native title claimant in relation to any of the land or waters in the area covered by the agreement: see s 24CL(2)(a); and
    • any person who, after the end of the notice period, becomes a registered native title claimant in relation to any of the land or waters in the area covered by the agreement, where the application containing the claim was made before the end of the notice period and certain other conditions are met: see s 24CL(2)(b).
31. It is therefore possible, in different factual circumstances to this case, that a registered native title claimant – one of the specified persons in s 24CD(2)(a) of the Act – may come into existence after an agreement is made and, more importantly, in response to a notice under s 24CH. It follows that it would be premature, in my view, for the Registrar, before giving notice of the agreement under s 24CH and, therefore, before ascertaining whether any more registered native title claimants may come into existence in response to that notice, to decide whether or not all of the persons specified in s 24CD are parties to the agreement. As I have noted above, the fact that this situation does not arise in this particular case, does not mean that this aspect of the broader statutory context of s 24CH should not be taken into account.

The Delegate’s decision was not required or authorised by s 24CH

32. In summary, I consider that both the plain language and the statutory context of s 24CH of the Act indicate that the Registrar was not expressly or impliedly required or authorised under it to make any decision about whether an agreement met the prerequisite provisions of ss 24CB to 24CE, and specifically whether the persons specified in s 24CD were parties to the agreement, before giving notice of the agreement under that section.
33. It follows that the Delegate’s decision in this case was not “a decision under an enactment” within the terms of s 5 of the AD(JR) Act. These proceedings could therefore be disposed of by my ordering the Delegate to proceed to give notice of the QGC – Iman agreement in accordance with s 24CH of the Act. Indeed, the applicant has sought that relief in paragraph 4 of its application, as follows:

An order directing the First Respondent to:
(a) give notice of the Iman #2 – QGC ILUA in accordance with section 24CH of the NTA; and
(b) otherwise deal with the Iman #2 – QGC ILUA according to law.

Urgings to deal with the construction of s 24CD issue

34. However, in my view, there are two problems with this course. The first is that there are at least two reasons why the Delegate’s decision could still be reviewable under the AD(JR) Act. One is that I am incorrect in my conclusion that the Delegate’s decision was made under s 24CH of the Act. Another, although not raised in argument before me, is that s 5(1)(c) or (d) of the AD(JR) Act applies: (c) that the person who purported to make the decision did not have jurisdiction to make the decision; or (d) that the decision was not authorised by the enactment in pursuance of which it was purported to be made. In his submissions, Mr Bickford, for the Delegate, submitted that, if there were any doubt whether the Delegate’s decision was reviewable under the AD(JR) Act, I should deal with the matter under s 39B of the Judiciary Act 1903 (Cth). He cited, in support of this submission, two Full Court decisions where that approach was taken: Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164 at [57] and Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574; [2009] FCAFC 33 at [9].
35. The second problem with making an order in terms of paragraph 4 of QGC’s application is that would leave the primary issue in these proceedings unresolved, viz whether the Delegate is correct in her construction of s 24CD of the Act. Since I have already concluded (see [27]–[28] above) that the Delegate will eventually need to decide whether the QGC – Iman agreement meets the prerequisite provisions of ss 24CB to s 24CE (including s 24CD), when she comes to make her decision under s 24CJ, and since the Delegate has already determined this question in the negative in relation to s 24CD (see at [11] above), it seems highly likely, if not certain, that the Delegate will eventually make the same decision if I simply make an order in terms of paragraph 4 of QGC’s application.
36. In that event, it is also highly likely, if not certain, that QGC will make a further application seeking to challenge that decision and, as a consequence, considerable extra costs and delay will be occasioned before the same issue is brought back before this Court. Such an outcome would be antithetical to overarching purpose of civil practice and procedure in this Court, to facilitate the just resolution of disputes “as quickly, inexpensively and efficiently as possible”: see s 37M of the Federal Court of Australia Act 1976 (Cth). To avoid this, all of the parties urged me to proceed to decide this primary issue in these proceedings.

It is appropriate to deal with the s 24CD issue under s 39B of the Judiciary Act 1903 (Cth)

37. The alternative course advanced by Mr Bickford is feasible because, as I have noted above at [13], QGC has sought, in the alternative to its application under s 5 of the AD(JR) Act, to rely upon the provisions of s 39B of the Judiciary Act 1903 (Cth). This section gives the Federal Court original jurisdiction in, among other matters, any matter: “arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter”: see s 39B(1A)(c). Clearly, the Act is a law of the Commonwealth Parliament and the validity of the Delegate’s decision is a matter that arises under that law. It is also clear that I have the power to make the declaratory orders sought by QGC under s 21 of the Federal Court of Australia Act 1976 (Cth).
38. As it happened, by the completion of written and oral submissions, it appeared to me that there was common ground between counsel that, if the Delegate made any errors in her construction of s 24CD of the Act, such errors would fall within the provisions of s 39B of the Judiciary Act 1903 (Cth), either because they would be jurisdictional errors, or errors of law on the face of the record, or both. In view of this consensus, I do not need to determine which of these types of error is, or are, involved. Taking into account all these factors, I consider it is appropriate to proceed to deal with this primary issue in these proceedings under s 39B of the Judiciary Act 1903 (Cth), as I have been urged to.

THE CONSTRUCTION OF SECTION 24CD

The relevant legislative provisions

39. It is appropriate to begin by setting out the relevant parts of s 24CD in full. They are s 24CD(1) to (3) as follows:

Native title group to be parties
(1) All persons in the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement.
Native title group where registered claimant or body corporate
(2) If there is a registered native title claimant, or a registered native title body corporate, in relation to any of the land or waters in the area, the native title group consists of:
(a) all registered native title claimants in relation to land or waters in the area; and
(b) all registered native title bodies corporate in relation to land or waters in the area; and
(c) if, for any part (the non-claimed/determined part) of the land or waters in the area, there is neither a registered native title claimant nor a registered native title body corporate—one or more of the following:
(i) any person who claims to hold native title in relation to land or waters in the non-claimed/determined part;
(ii) any representative Aboriginal/Torres Strait Islander body for the non-claimed/determined part.
Native title group where no registered claimant or body corporate
(3) If subsection (2) does not apply, the native title group consists of one or more of the following:
(a) any person who claims to hold native title in relation to land or waters in the area;
(b) any representative Aboriginal/Torres Strait Islander body for the area.

(emphasis in original)

40. It is common ground in this matter that:
    • the RNTC is the only registered native title claimant in relation to the land in question under s 24CD(2)(a);
    • no registered native title body corporate exists in relation to the land in question under s 24CD(2)(b); and
    • none of the situations described in s 24CD(2)(c) arises, so that subsection does not apply.
41. In other words, the RNTC is the only member of the native title group described in s 24CD(1). It may also be noted that none of the other subsections of s 24CD (not all set out above) applies. This is so because: since s 24CD(2)(a) applies, s 24CD(3) does not; no one else has elected to be a party to the QGC – Iman agreement under s 24CD(4) or (6); the agreement does not involve the extinguishment or surrender of native title rights and interests by, or to, any government body, so s 24CD(5) does not apply; and, because Queensland South is the recognised representative body for the area concerned, s 24CD(7) does not apply.
42. The other sections of the Act that are particularly relevant to this issue are ss 251A and 251B. They provide as follows:

251A Authorising the making of indigenous land use agreements
For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorise the making of the agreement if:
(a) where there is a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind—the persons authorise the making of the agreement in accordance with that process; or
(b) where there is no such process—the persons authorise the making of the agreement in accordance with a process of decision-making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.
251B Authorising the making of applications
For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:
(a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or
(b) where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

(emphasis in original)

My mentioning s 251A prompts me to record that I respectfully agree with Logan J (in Fesl at [60]) that the introductory part of that section mistakenly excludes the words “or may hold” the native title.

43. Finally, it is appropriate to set out the relevant definition provisions in s 253 and elsewhere in the Act. The expressions “applicant” and “registered native title claimant” are defined in s 253 as follows:

applicant has a meaning affected by subsection 61(2)
registered native title claimant, in relation to land or waters, means a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.

44. Subsection 61(2), mentioned in the definition of “applicant” above, provides that:

Applicant in case of applications authorised by claim groups
(2) In the case of:
(a) a native title determination application made by a person or persons authorised to make the application by a native title claim group; or
(b) a compensation application made by a person or persons authorised to make the application by a compensation claim group;
the following apply:
(c) the person is, or the persons are jointly, the applicant; and
(d) none of the other members of the native title claim group or compensation claim group is the applicant.

(emphasis in original)

45. The Register of Native Title Claims, mentioned in the definition of “registered native title claimant” above, is established by s 185 of the Act. It contains details of any claim that has been accepted for registration by the Registrar under s 190A, or in response to a notification by the National Native Title Tribunal under s 190E, or where the details of the claim have been found to satisfy conditions “equivalent to” those set out in ss 190B or 190C: see s 190(1) of the Act. Section 186 of the Act then prescribes the information that is to be included on the Register as follows:

Information to be included
(1) The Register must contain the following information for each claim covered by subsection 190(1):
(a) whether the application was filed in the Federal Court or lodged with a recognised State/Territory body;
(b) if the application was lodged with a recognised State/Territory body—the name of that body;
(c) the date on which the application was filed or lodged;
(ca) the date on which the claim is entered on the Register;
(d) the name and address for service of the applicant;
(e) the area of land or waters covered by the claim;
(f) a description of the persons who it is claimed hold the native title;
(g) a description of the native title rights and interests in the claim that:
(i) the Registrar or the NNTT in applying subsection 190B(6); or
(ii) a recognised State/Territory body in applying provisions equivalent to that subsection;
considered, prima facie, could be established.
Other information
(2) The Registrar may include in the Register such other details about the claim as the Registrar thinks appropriate.
(emphasis added)

46. Tracing these provisions through, it can be seen that the person or persons authorised by the native title claim group under s 251B of the Act become the “applicant” (under ss 253 and 61(2)) once the claim so authorised is made; and the same person or persons then become the “registered native title claimant” (under s 253) once that claim has been accepted for registration under s 190A (or otherwise meets the requirements of ss 190B, 190C or 190E) and its details are entered on the Register of Native Title Claims under s 186.
47. The details of the Iman #2 claim were entered on the Register of Native Title Claims on 26 July 2002. The name and address for service of the applicant, recorded in accordance with s 186(1)(d) above, were as follows:

Applicants Mr Russell Tatow, Mr Patrick Silvester, Ms Cynthia Kemp, Ms Eve Fesl, Mr Troy Noble, Mr Fred Tull, Mr Fergus Waterton, Mr Richard Doyle, Ms Madonna Barnes
Address for service: Principal Legal Officer
Queensland South Native Title Services
Level 4, 370 Queen Street
(PO Box 10832, Adelaide Street)
BRISBANE QLD 4000
Phone: [phone]
Fax: [phone].

The Delegate’s decision

48. While the gist of the Delegate’s decision about the construction of s 24CD of the Act is set out at [11] above, since her decision is central to this issue, it is appropriate to set out most of the relevant parts of it verbatim. They are:

The registered native title claimant is the ‘person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title...’ (s. 253). Subsection 24CD(1) requires that all persons in the native title group, being the registered native title claimant, are parties to the Agreement.
...
I note that all the [second respondents] have executed the Agreement except Ms Madonna Barnes. I understand that Ms Barnes refused to sign the Agreement.
As Ms Barnes has refused to sign the Agreement, she is not a party to the Agreement. Section 24CD requires all persons in the native title group to be parties to the Agreement. The native title group is the registered native title claimant. Section 24CD thus requires all persons who comprise the registered native title claimant to be parties to the Agreement. In this case, that requirement is not met.
...
... it is not the registered native title claimant that must be a party, but rather all the persons in the native title group (see s. 24CD(1)), being the registered native title claimant, that must be parties to the Agreement. ... the registered native title claimant is not a person in this case but a group of persons whose names are on the Register of Native Title Claims as the applicant for the native title claim (see s. 253).
...
... The persons who jointly comprise the applicant should act collectively and are required to act in accordance with the authorisation given to them by the claim group. ...
... the ILUA provisions do require that all the persons comprising the registered native title claimant are parties to the ILUA. This may be because serious consequences may flow from the registration of an ILUA including the surrender and extinguishment of native title. It may be because the registration of an ILUA can bind persons who hold native title to the relevant area to the terms of the agreement even if they have not authorised the making of the agreement (s. 24EA). Unanimity of action by all of the persons in the native title group may represent one of the safeguards built into the ILUA provisions by Parliament.
...

49. Thus, the Delegate’s decision can be summarised as follows:

(a) all nine of the second respondents are the persons who, as a group, comprise both the applicant and the RNTC, and it is all of them, as individuals, that must be parties to the QGC – Iman agreement;

(b) Ms Barnes is one of those nine persons, and since she has refused to sign the QGC – Iman agreement, she is not a party to that agreement;

(c) it is not the RNTC that must be a party, but rather all the nine persons whose names appear on the Register of Native Title Claims as the applicant for the Iman #2 claim;

(d) the nine second respondents who, as a group, comprise the RNTC, must act collectively and in accordance with the authorisation given to them by the claim group; and

(e) unanimity of action by all the persons in the RNTC is required.

It is also apparent from her decision that the Delegate thought the absence of Ms Barnes’ signature to the QGC – Iman agreement indicated both her absence of assent to the agreement and, implicitly, that she did not consent to being a party to the agreement.

Contentions

50. The parties in these proceedings were essentially split into two camps. On the one hand, QGC and the second respondents, with the exception of Ms Barnes, had a commonality of interests in seeking to challenge the Delegate’s decision and support the contention that the QGC – Iman agreement met the prerequisite provisions for an ILUA under the Act. On the other hand, the Delegate, Queensland South and Ms Barnes had a commonality of interests in wishing to maintain the validity of the Delegate’s decision. As I have noted above, Ms Barnes was not represented by counsel and she essentially relied upon the submissions made by counsel on behalf of the Delegate and Queensland South.
51. During the course of hearing this matter, I received detailed and extensive written submissions from the parties and those written submissions were supplemented by detailed oral submissions. All those submissions were very helpful. Given the length and complexity of them, it is difficult to do them justice in a summary. Nonetheless, space constrains me to attempt to do so.
52. Mr Hiley QC, for QGC, submitted that the phrase “all persons in the native title group” in s 24CD(1) of the Act referred to all the persons, bodies politic/bodies corporate or other entities that comprise the “native title group” in any particular case. In the present case, he submitted that the collective entity known as the “registered native title claimant” for the Iman #2 claim group, viz the second respondents, in their capacity as the RNTC, was the only “person” in “the native title group”. Further, he submitted, that the use of the words “all persons” in s 24CD(1) of the Act does not support an interpretation of s 24CD(2) that each of the individuals who comprise the registered native title claimant is required to be a party, but rather that each “person” described in s 24CD(2) has to be. In this case, he submitted, the RNTC has, in fact, been made a party to the QGC – Iman agreement and, therefore, the agreement is an ILUA of the kind referred to in s 24CA. Finally, he submitted that the Delegate’s construction of s 24CD(1) and (2) was inconsistent with the purposes of the Act and would lead to inconvenient, unjust and absurd consequences. In particular, he submitted, it effectively gave one person, viz Ms Barnes, a right of veto over the decision made by all the Iman People at their authorisation meeting to agree to, and sign, the QGC – Iman agreement.
53. Mr Rangiah SC, for the second respondents, generally supported Mr Hiley’s submissions. In addition, he submitted that ss 24CD(1) and (2) of the Act essentially operated to deem that the RNTC would be a party to the QGC – Iman agreement and there was no requirement that the persons who comprised the RNTC needed to consent to that course. He also submitted that s 24CD provided a mechanism by which a native title claim group, and others, which was commonly a large unincorporated group of persons who claimed to hold native title rights and interests in relation to land – but whose rights may not yet have been determined – could enter into an ILUA through the agency of the registered native title claimant.
54. Mr Bickford, for the Delegate, made it clear that he intended to ensure that his submissions complied with the constraints identified by the High Court decision of Re Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 at 35 to 36. Within those constraints, he submitted that the Delegate’s construction of s 24CD was correct. He submitted that the reference to “all persons in the native title group” was, in this case, to be construed as a reference to all the persons making up the RNTC for the Iman #2 claim. He submitted that each of the persons whose name appears on the entry in the Register of Native Title Claims only becomes a party when he or she has executed the ILUA. Thus, he submitted, the RNTC could only become a party to the ILUA with the concurrence of all the persons comprising it. If one of those persons was unwilling to sign the ILUA and be a party, he submitted that the remedy was to have that person removed from the authorised applicant in accordance with s 66B of the Act, in which event his or her name would be removed from the entry in the Register of Native Title Claims and, therefore, the RNTC. Because this course is available to the second respondents, he submitted that the Delegate’s construction of s 24CD does not lead to any absurd, or unfair, results.
55. Mr O’Gorman SC, for Queensland South, submitted that each individual who, together with the others, comprised the “registered native title claimant” as defined in s 253 of the Act is required to be a party to an ILUA under s 24CD of the Act. He submitted, while s 24CD does not contain any express requirement that a party must sign the ILUA, such a requirement is clearly implied. Since, in this case, the QGC – Iman agreement has not been signed by all the persons comprising the RNTC, it is not an ILUA and cannot be registered as such.

The specific questions that arise in the construction of s 24CD

56. The submissions of counsel serve to define more precisely the specific questions that arise from the Delegate’s decision in relation to the construction of s 24CD. In my view, they are these:
    1. Which of the following do ss 24CD(1) and (2) specify be a party, or parties, to the QGC – Iman agreement:

(a) the RNTC, as a collective entity; or

(b) all of the individual persons who comprise the registered native title claimant as defined in s 253?

2. Do ss 24CD(1) and (2) require that the person or persons who are specified to be parties, need to consent to their being made parties to the QGC – Iman agreement?

I will consider these two specific questions in order below. Before doing so, I will identify some general principles in relation to the construction of s 24CD.

Some general principles on the construction of s 24CD

57. As the High Court re-emphasised in Alcan (see at [16] above), in order to construe s 24CD of the Act, it is necessary to consider its language, and also its context, general purpose and policy. Obviously that also applies to the construction of the related provisions, particularly the definitions of “registered native title claimant” and “applicant” in ss 253 and 61(2) respectively. In this instance, I consider it is convenient, as suggested in Project Blue Sky (see at [17] above), to begin the task of construing ss 24CD(1) and (2) by considering its statutory context and to then consider its general and particular purpose.

The statutory context of s 24CD – the ILUA process in the Act

58. As I have already pointed out above (at [19]), Division 3, Pt 2 of the Act, which includes s 24CD, sets up a process to allow for the consensual validation of future acts that affect native title. In Fesl, Logan J pointed out (at [21]) that the object being pursued in Division 3 is stated in s 3(b): “to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings”. For present purposes, this process can be broadly described as the ILUA process in the Act. The object stated in s 3(b) correlates with the Preamble to the Act, which says, in part, that:

The needs of the broader Australian community require certainty and the enforceability of acts potentially made invalid because of the existence of native title. It is important to provide for the validation of those acts.
...
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.

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

Construing s 24CD to facilitate the purposes of the ILUA process

60. In Doolan v Native Title Registrar (2007) 158 FCR 56; [2007] FCA 192 (at [61]), Spender J referred to the Second Reading Speech of the then Prime Minister, Mr Keating, on the Native Title Bill 1993 as quoted by McHugh J in Commonwealth v Yarmirr (2001) 208 CLR 1; [2001] HCA 56 (at [124]–[125]), that: “If the purpose of the Act was to recognise native title in any case where Aboriginal or Torres Strait Islander people still possessed rights and interests in respect of land or waters under their traditional laws or customs, the duty of the courts would be to ensure that that purpose was achieved”. See also the observations of Mansfield J to the same effect in Lennon v State of South Australia [2010] FCA 743 (“Lennon”) at [23]–[25].
61. I respectfully agree with these observations and consider they should be applied with equal effect to the purposes that are intended to be achieved by the ILUA process in the Act. That being so, I consider I should adopt a construction of the provisions of Subdivisions B, C and D of Div 3, Pt 2 of the Act, including s 24CD, that serves to facilitate that process.

An ILUA has both uncontroversial and radical effects

62. To work out how s 24CD is to be construed, it is helpful to consider what effect an ILUA has once the details of it are entered on the Register of ILUAs. That is spelt out in Subdivision E of Division 3, Pt 2 of the Act. In particular, s 24EA describes the contractual effect of a registered ILUA. In summary, there are two such effects, as follows:
    • the ILUA has effect as if it were a contract between the parties to the agreement: s 24EA(1)(a); and
    • the ILUA has effect as if all persons holding native title in relation to any land covered by the agreement were bound by it in the same way as the parties to the agreement are: s 24EA(1)(b) and (2).
63. The first effect is uncontroversial, it confirms that an ILUA has its normal effect as an agreement at common law. However, the second effect is more radical. It introduces concepts that are quite foreign to the common law, viz that certain indigenous persons are bound by the ILUA even though they are not parties to it. This notion is contrary to common law principles such as privity of contract and the voluntary assumption of contractual obligations.

Some peculiar difficulties arise in the ILUA process

64. This mixture of common law principles with other concepts that are quite foreign to the common law, serves to highlight the uniqueness of the Act within which the ILUA process operates. At the centre of the Act is a distinctive set of native title rights and interests which, while they are recognised by the common law and by the Act itself, do not originate from either of them. Furthermore, these rights and interests are generally communal rights and interests, which are usually held by a large group of indigenous people who together make up a community or society, where the membership of that community or society is constantly fluctuating as births and deaths occur within its population. And, the native title rights and interests concerned usually relate to large areas of land or waters and are dependent on the laws and customs of that community or society and the nature and extent of their continuing connection to the land or waters concerned. Added to all this is the fact that, in many cases, the existence of these rights and interests have yet to be determined under the Act. And finally, there is the factor that most ILUAs can be expected to operate for a long period.
65. Given this complex and unique cultural and legal environment, it is hardly surprising that the Act has had to resort to some original and unusual processes to deal with the peculiar difficulties that arise in, among others, the ILUA provisions in the Act. One such difficulty is how a large unincorporated group of persons, fluctuating in membership and with diverse rights and interests, some of which may not have been determined, is able to make a binding agreement that is to operate for a long period.

The particular purpose of s 24CD – allowing a large unincorporated group to enter into an ILUA

66. Overcoming this difficulty is where I consider the particular purpose of s 24CD lies. It is trite to say that an unincorporated group of persons such as that described above, does not constitute a legal person. It has no existence separate from the members of the group and it can remain in existence only so long as there are members of the group: see Williams v Hussey [1959] HCA 51; (1959) 103 CLR 30 (“Williams”) at 54–55 and Ex parte Goddard; Re Falvey (1946) 46 SR(NSW) 289 (“Goddard”) at 296. For this reason, it is practically impossible for such a large unincorporated group of persons, as a group, to make a binding contract, particularly one that is likely to operate over a long period of time: see Jarrott v Ackerley (1915) 85 L J Ch 135; Freeman v McManus [1958] VR 15 at 21; Goddard at 296; and Carlton Cricket & Football Social Club v Joseph [1969] VR 487 (“Carlton Football Club”) at 496–497.
67. This impossibility was highlighted in the latter case where Gowans J had to consider whether a 21 year lease agreement between the Carlton Cricket & Football Social Club and the Fitzroy Football Club – which was an unincorporated association with a large and fluctuating membership – was binding. His Honour said (at 497):

It is easier to achieve a binding legal result in the case of a single transaction having an immediate final and complete effect, like the purchase of a parcel of goods, than in the case of a transaction operating over a long period, such as a lease. And it is easier to achieve the legal result if the legal rights or obligations created are, in form, vested in or imposed upon a representative acting for the general body, than in the case where the legal rights and obligations purport to be vested in or imposed upon the body itself by its name. In this latter case, according to the nature of the transaction sought to be effectuated, the attempt may produce no legal result at all.
(emphasis added)

Ultimately, Gowans J decided that the case before him fell into the latter category, viz there was no binding contract (see at 499).

68. These difficulties are even more pronounced under the ILUA provisions in the Act. In Murray, the Full Court touched on some of those difficulties when it was called on to construe subsection 24CD(3), which provides a definition of the “native title group” in s 24CD(1), where s 24CD(2) does not apply. In that event, s 24CD(3) (set out in full at [39] above) provides that, among others, the native title group that must be a party to an ILUA consists of: “any person who claims to hold native title in relation to land or waters in the area”. The Full Court identified the problems associated with attempting to identify every person who fell into this category. It said (at [18]):

A construction of s 24CD(3) that could require a native title group to consist of every person who claims to hold native title in relation to land or waters in the area is a construction which could lead to very considerable practical difficulties in meeting the requirements that each member of the group be named. As Div 3 implicitly recognises (see, for example, s 24CG) it may be impossible in a practical sense to identify all persons who hold, or may hold, native title in relation to land or waters in an area. At least equivalent practical difficulties, and possibly greater practical difficulties, would attend any attempt to identify every person who claims to hold native title to land or water in an area. It seems for this reason unlikely that s 24CD(3) was intended to require the identification of all such persons. Were s 24CD construed so as to require the identifying and naming of all such persons, the consequence would seem to be that a late discovery of a previously unidentified claimant could deprive even a registered agreement of its character as an indigenous land use agreement (see s 24CA). This inconvenient result should not lightly be found to have been intended by the legislature.
(emphasis in original)

In the end result, the Full Court overcame these difficulties by holding that s 24CD(3) only required “one or more” of the persons who hold, or claim to hold, native title to be parties. It should also be noted that, the Full Court did not need to address the question that arises in this case about how such a large unincorporated group of indigenous persons is able to enter into an ILUA.

69. It follows from all these considerations that I essentially agree with Mr Rangiah’s submissions (see [53] above) that the particular purpose of s 24CD is to provide a statutory mechanism or device by which a large unincorporated group of indigenous persons with fluctuating memberships and undetermined native title rights and interests can enter into an ILUA under the Act. This essentially requires a legal person or persons to act as the representative party for the large unincorporated group of indigenous persons concerned. As to the former criterion, it is well established at common law that, in order for a contract to be effective, the parties to it must be legal persons, ie either a body corporate, a body politic, or an individual: see, for example, the Carlton Football Club decision at 497.
70. The latter criterion was highlighted by Gowans J in the Carlton Football Club decision (emphasised in [67] above). Jordan J made a similar observation in Goddard where he said that it is possible and practical for a small group of persons, combining together, to enter into a contract on behalf of a much larger group (see at 296). Indeed, in Goddard, Jordan J eventually found (at 297) that two members of the voluntary unincorporated association concerned – the President and the Treasurer – who were empowered to sign the tenancy agreement and had been given an indemnity by the association, had entered into a binding tenancy agreement on behalf of that unincorporated association. I should add that Gowans J felt he was unable to take this approach in the Carlton Football Club decision because the lease had been entered into in the name of the Fitzroy Football Club without using any such representatives.

A registered native title claimant is not a legal person

71. However, the former criterion presents a problem for a registered native title claimant. That is, that a registered native title claimant, as an entity, or as a collective entity – to adopt the expression used by Mr Hiley – is, at least prima facie, not a body corporate, a body politic, or an individual. It follows that, prima facie, it is not a legal person. Nonetheless, the common law has recognised that the Legislature may constitute an entity, not known to the common law, with a legal personality distinct from its members, whether or not that entity is identified in the legislation as a corporation. The principles involved were expressed in Taff Vale Railway v Amalgamated Society of Railway Servants [1901] UKHL 1; [1901] AC 426 by Farwell J in these terms (at 429):

Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the Legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is beside the mark to say of such an association that it is unknown to the common law. The Legislature has legalised it, and it must be dealt with by the Courts according to the intention of the Legislature.

72. These principles have been applied in Australia in The Chaff and Hay Acquisition Committee v J.A. Hemphill & Sons Proprietary Limited [1947] HCA 20; (1947) 74 CLR 375 at 384 to 386, 389, 391 and 393 and Williams v Coulthard [1948] SASR 183 at 190 to 191. Lord Denning MR expressed similar views in Willis v Association of Universities of the British Commonwealth [1965] 1 QB 140 at 147–148. I should add that none of these three cases involved trade unions established under industrial legislation, in relation to which some different and peculiar considerations may arise: see R v Duncan; Ex parte Australian Iron & Steel Proprietary Limited (1982–[1983] HCA 29; 1983) 158 CLR 535; Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations [1995] HCA 31; (1995) 184 CLR 620, and the discussion in Baxt R, “The Dilemma of the Unincorporated Association” (1973) 47 ALJ 305 at 315–316.
73. Furthermore, as I have observed above (at [65]), the Act has employed some original and unusual processes to deal with the unique cultural and legal environment in which it operates. So, it might be thought more likely that the Legislature had taken this approach in relation to the status of the registered native title claimant under s 24CD. However, despite the fact this option was open to the Legislature, and might have been thought quite apt in the special circumstances involved, there are aspects of the Act, as a whole, that I consider indicate it may not have been adopted.
74. First, the language used in the definition of “registered native title claimant” in s 253 of the Act (set out at [43] above) does not suggest that it was intended to have the status of a body corporate with a legal personality that was separate from its members. To the contrary, that definition relies upon the individuals who comprise a registered native title claimant, viz “... a person or persons whose name or names appear in an entry on the Register ...”, rather than identifying the registered native title claimant as a separate person, or entity, distinct from those persons who comprise it.
75. Secondly, the Act identifies a number of other bodies that serve various similar roles and, in each case, those bodies are required to be corporate bodies. Indeed, s 24CD itself refers to two such bodies, ie registered native title bodies corporate (s 24CD(2)(b)) and a recognised representative body (ss 24CD(2)(c)(ii) and 24CD(3)(b)), both of which are required under the Act to be bodies corporate: see s 59 of the Act and reg 4(1) of the Native Title (Prescribed Body Corporate) Regulations; and ss  201B and 203A(1), respectively. It may therefore be thought to be unlikely that the Legislature would not have also required a registered native title claimant to be a body corporate, if that was the intention. For these reasons, I consider a registered native title claimant, as an entity, or as a collective entity, has probably not been constituted as a legal person under the Act.
76. Before leaving this issue, it is worth adding that two judges of this Court have held that the expression “applicant”, as defined in ss 253 and 61(2) of the Act, is not a legal entity: see Lennon at [6] and [27] per Mansfield J and Butchulla People v Queensland (2006) 154 FCR 233; [2006] FCA 1063 (“Butchulla People”) at [39] per Kiefel J. On the other hand, in Doolan, Spender J referred to the applicant as: “the group as a single entity rather than one or more of the persons who comprise the group” (at [62]). These decisions may be considered significant because, as I have observed above (at [46]), the “applicant” and the “registered native title claimant” are comprised of the same persons. However, none of these decisions involved a consideration of the expression “registered native title claimant”, as defined in s 253 of the Act, nor involved the ILUA provisions of the Act, and I do not, therefore, consider they can be applied on this issue about the status of a registered native title claimant.

The specified parties under s 24CD(1) and (2)(a) are a person or persons named in the relevant entry on the Register

77. The question then is what construction of s 24CD serves to achieve the purpose identified above: providing a legal person or persons to act as the representative party for the large unincorporated group of indigenous persons wishing to enter into an ILUA? That brings me to the first of the specific questions identified above (at [56]): is the specified party or parties under ss 24CD(1) and (2) the RNTC, as a collective entity, or are they the individual persons who comprise the RNTC?
78. As highlighted in Alcan, the language used in s 24CD is the “surest guide” to answering this question. Section 24CD(1) (set out at [39] above) requires “all persons” in the native title group to be parties to the agreement and, in the event that there is one or more registered native title claimants in relation to any of the land in question, s 24CD(2)(a) provides that the native title group includes “all registered native title claimants”.
79. First, to the meaning of the word “all”. The decisions of this Court show that, when it is used in various provisions of the Act, the word “all” is particularly context-based and it often has a more limited meaning than it might otherwise have: see Murray at [18]–[20] and the review of those decisions in Fesl at [68]–[72]. Nonetheless, in the context in which the word “all” is used in both ss 24CD(1) and (2)(a), it does not give rise to the sorts of problems identified in those decisions, so I consider it has its ordinary meaning. That is, in this context: “the whole of ... any; any whatever ... the whole quantity or amount ...”: see Macquarie Dictionary (4th ed). Thus, in both ss 24CD(1) and (2)(a), I consider it means the whole of, or any, “persons” and the whole of, or any, “registered native title claimants”, respectively. So, unlike in this case where there is only one registered native title claimant, where there are two or more registered native title claimants in relation to any of the land concerned, this means that the whole of, or any of, them must be parties to an ILUA. Conversely, I do not consider the word “all” in s 24CD(2)(a) could be construed to refer to the individuals who comprise such bodies any more than I consider its use in s 24CD(2)(b) in relation to registered native title bodies corporate, could be construed to refer to the individuals who comprise such bodies corporate. Instead, I consider the definition of the expression “registered native title claimants” in s 253 performs the role of defining who, or what, constitutes a registered native title claimant for the purposes of it becoming a party to the ILUA.
80. Turning then to the meaning of the word “persons”. Section 22 of the Acts Interpretation Act 1901 (Cth) (“the AI Act”) states:

(1) In any Act, unless the contrary intention appears:
(a) expressions used to denote persons generally (such as “person”, “party”, “someone”, “anyone”, “no-one”, “one”, “another” and “whoever”), include a body politic or corporate as well as an individual.

The persons referred to in this section are all legal persons.

81. As explained above (at [40]–[41]), in this case, the RNTC is the only entity that could fall within the meaning of the word “person”, and that does fall within the expression “registered native title claimant”. Further, as explained above (at [71]–[76]), a registered native title claimant is not a legal person. This raises the question whether a registered native title claimant, as an entity, falls within the meaning of the word “persons” in s 24CD(1) as defined by s 22 of the AI Act.
82. Since all registered native title claimants are prescribed by s 24CD(2)(a) to be included in the “persons” who constitute the native title group under s 24CD(1) and the former are not legal persons, I consider the use of the definition of the word “persons” in s 22 of the AI Act is contra-indicated, ie a contrary intention appears in s 24CD. In other words, notwithstanding the definition in s 22 of the AI Act, the word “persons” in s 24CD(1) must be construed to refer to those persons or entities described in s 24CD(2) and (3), whether or not one or more of them is a legal person.
83. Finally, it is necessary to consider the expression “registered native title claimant”. As I have already noted above, that expression is defined in s 253 of the Act as meaning: “... a person or persons whose name or names appear in an entry in the Register of Native Title Claims as the applicant ...”. For present purposes, there is a number of significant aspects of this definition. First, it does not use the inclusive word “all” at the beginning, in the same way as ss 24CD(1) and s 24CD(2)(a) do. Secondly, it uses the word “a” rather than the more specific word “the”. In this respect, it is to be contrasted with the definition of the expression “applicant” which uses the word “the” three times, viz “the person is, or the persons are jointly the applicant”: see ss 253 and 61(2) (set out at [43] and [44] above). It follows, in my view, that s 253 is to be construed to mean that one or more (but not necessarily all) of the persons who are named in the entry on the Register may comprise the registered native title claimant. Thirdly, s 253 does not refer to the persons who are defined as the applicant in s 61(2) or who, in fact, comprise the applicant from time to time. Rather it refers to the name or names of persons appearing in an entry on the Register as the applicant. Since the only part of an entry on the Register that mentions the applicant is that prescribed by s 186(1)(d) (set out at [45] above): “the name and address for service of the applicant”, this must be the part of the entry that is being referred to. It follows from these considerations that I do not consider the reference to the word “applicant” in that section adopts the definition of the expression “applicant” in ss 253 and 61(2) for the purposes of defining the expression “registered native title claimant”.
84. Taking into account all these aspects of the language used in ss 24CD(1) and (2) and the particular purpose of s 24CD I identified earlier in these reasons (see at [69] above), I consider these provisions are to be construed to require that the whole of, or any, registered native title claimants in relation to the land or waters in the area covered by an ILUA, have to be parties to that ILUA, but each registered native title claimant may be made a party to it by naming one or more (if there is more than one) of the persons named in that part of the entry in the Register of Native Title Claims which identifies the name and address for service of the applicant, ie s 186(1)(d). These persons then act as representative parties for the native title contracting group to allow that group to enter into the ILUA. Furthermore, for the reasons I have explained in more detail below, I consider the role of these persons as representative parties is limited to them being named as such. Finally, it should be noted that this construction complies with the requirement to construe the provisions of s 24CD as a whole because it is a construction that can be applied consistently in relation to all of the persons or entities that must be parties to an ILUA under that section.
85. For these reasons, I consider the answer to the specific question identified above is that the specified party or parties under ss 24CD(1) and (2), in this case, was not the RNTC, as a collective entity, because it is not a legal person, and nor was it all the individuals who comprise the RNTC. Instead, I consider it was one or more of the persons named in the relevant entry in the Register of Native Title Claims acting in their capacity as representative parties to the ILUA.
86. There is a number of consequences that flow from this conclusion that are relevant to various submissions made by counsel in this case. Since these matters were addressed at some length in submissions, I will deal with the more significant ones briefly below.

No requirement for collective or unanimous action

87. First, in her decision, the Delegate appears to have concluded that the use of the words “all persons” in s 24CD(1), the definition of the expression “registered native title claimant” in s 253 and the related expression “applicant” in s 61(2), required that all of the persons who jointly comprised the applicant, and therefore the registered native title claimant, had to act collectively and with unanimity. In my view, there is no such requirement expressed by these provisions in relation to those members of a registered native title claimant who are named as representative parties to an ILUA.
88. As I have already explained above (at [79]–[84]), unlike with the applicant under s 61(2), I do not consider there is any requirement in ss 253, 24CD, or 61(2) for the individuals who comprise a registered native title claimant and who act as the representative parties to an ILUA, to act jointly. It follows that there is no requirement for those members of a registered native title claimant who are named as the representative parties to an ILUA under s 24CD, to act collectively or, indeed, unanimously. Moreover, there is no purpose to be served by them acting jointly, or otherwise, because as I have explained above, their only role is to be named as representative parties as a statutory mechanism or device to provide a means by which the native title contracting group can enter into an ILUA.
89. In any event, even if the same construction were to be applied to the expression “registered native title claimant” as the Delegate concluded should be applied to the expression “applicant”, so as to require the representative parties under s 24CD to act jointly or collectively, there are various decisions of this Court, with which I respectfully agree, that have held that this does not mean unanimity is required of them: see Lawson v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 at [25] and Fesl at [26] and [71].

No veto created

90. On the same vein, my conclusion about the construction of s 24CD also prevents that section being construed to provide an opportunity for an individual member of a registered native title claimant to frustrate, or veto, a native title contracting group entering into an ILUA, by refusing to become a representative party to that ILUA under s 24CD.
91. On this aspect, it is appropriate to begin by mentioning the observation of French J in Daniel v Western Australia (2002) 194 ALR 278; [2002] FCA 1147 (“Daniel”), where one member of the applicant refused to execute an agreement under the Act. While the specific focus of that case involved the removal of the dissenting member from the applicant under s 66B of the Act, and I have distinguished it for that purpose below (at [118]), his Honour’s observations (at [54]) are most apposite on this veto point: “This is a case in which one of a large number of registered applicants is holding up the execution of an agreement which has been authorised by the native title claim group and which is of substantial importance to its members. To decline to make the order in these circumstances would be to undermine the authority of the claim group and to frustrate its legitimate decisions”.
92. Muirhead J also dealt with a not dissimilar situation in Alderson v Northern Land Council (1983) 67 FLR 353 (“Alderson”) where certain of a group of traditional owners under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was withholding his consent and the Act required those traditional owners to consent “as a group”. His Honour said (at 360):

I cannot accept the argument that ... Parliament intended, as it were, to add a rider to the effect “there can be no consensus of Aboriginals without unanimity”. This would be contrary to the Aboriginal decision making processes as I understand them and would deny the wishes of the majority. It would mean that one dissident, one objector – however reasonable or unreasonable his dissent and whatever its motive – could frustrate the Land Council’s role in assisting the Aboriginals to make decisions concerning the use or non use of their land.

93. Muirhead J went on to refer to the observations of Lindley LJ in The Duke of Buccleugh (1889) 15 PD 86 at 96: “You are not so to construe the Act of Parliament as to reduce it to rank absurdity. You are not to attribute to general language used by the legislature, in this case any more than in any other case, a meaning which would not carry out its object, but produce consequences which to the ordinary intelligence are absurd.” In more recent times the High Court has made some similar observations in Cooper Brookes (Wollongong) Proprietary Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 (at 321 per Mason and Wilson JJ):

... when the judge labels the operation of the statute as “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure” he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

94. Muirhead J concluded his observations in Alderson by adding: “To deny these people the right to make majority decisions if they wish to do so would be to deprive them of a decision making process which they may wish to adopt and which is so commonly adopted in Australian society”.
95. I respectfully agree with these observations and consider they apply with equal force to the suggestion that Ms Barnes, as an individual member of the RNTC in this case, could frustrate, or veto, the decision of the native title contracting group to enter into the QGC – Iman agreement, by withholding her consent to becoming a representative party to that agreement. In my view, that would be an absurd and unfair result and one that would frustrate, rather than facilitate, the purpose of the ILUA provisions of the Act, including the particular purpose of s 24CD I have identified above (at [69]). Any such construction of s 24CD must be avoided. I consider my conclusion about the construction of s 24CD, and particularly, the limited role Ms Barnes has as a representative party to the QGC – Iman agreement, does that.

No requirement for a representative party under s 24CD to assent to, or to sign, or to consent to being a party to an ILUA

96. It is also apparent from her decision that the Delegate thought the absence of Ms Barnes’ signature to the QGC – Iman agreement indicated both her absence of assent to the agreement and, implicitly, that she did not consent to being a party to the agreement. I also do not consider any of these conclusions are valid.

No role in assenting to an ILUA

97. Dealing first with the question of assent – an ILUA involves that group of indigenous persons identified in s 251A of the Act as: “the persons who hold or may hold the common or group rights comprising the native title”, viz the native title contracting group, agreeing to allow future acts to occur on land and waters which will affect the native title rights and interests that they hold, or claim to hold, in that land and waters. It necessarily follows, in my view, that it is this group that is the principal indigenous contracting group under any ILUA. Further, s 251A sets out quite a detailed process whereby this native title contracting group has to authorise the agreement to allow these future acts to occur, if the agreement is to meet the prerequisites for an ILUA under the Act. Among other things, it provides that this native title contracting group must either use its traditional decision-making process, or to agree to adopt a particular decision-making process it considers is suitable for the purpose. Then, it provides that this native title contracting group must follow that process to “authorise the making of the agreement”. Once this process is duly followed, apart from any effect the agreement has under the ILUA provisions of the Act, privity of contract is created between this native title contracting group and the person or persons wishing to carry out the future acts on the land concerned.
98. Conversely, no privity of contract is created between the person or persons who wish to carry out future acts on the land concerned and the members of the registered native title claimants who are acting as representative parties under s 24CD. Instead, they are in much the same position as an agent concluding a contract on behalf of a principal. In Australian Trade Commission v Goodman Fielder Industries Limited [1992] FCA 307; (1992) 36 FCR 517, the Full Court identified the three ways in which an agent can conclude a contract on behalf of a principal. They are as follows (at 521):

(a) By creating privity of contract between the third party and his principal without himself becoming a party to the contract.
(b) By creating privity of contract between the third party and his principal, whilst also himself becoming a party to the contract.
(c) By creating privity of contract between himself and the third party, but no such privity between the third party and his principal.

99. Situation (a) most aptly describes the position of the representative parties under s 24CD. Situations (b) and (c) are quite inapposite in relation to an ILUA because no purpose would be served by creating privity of contract between the person or persons wishing to carry out the future acts on the land concerned and the members of the registered native title claimant as representative parties. This is so because they will already be members of the principal, ie the native title contracting group, by virtue of the fact that the persons who comprise the authorised applicant and, therefore, the registered native title claimant, must be members of the native title claim group: see s 61(1).
100. For these reasons I consider the QGC – Iman agreement was an agreement between QGC and the native title contracting group. It necessarily follows that it was the native title contracting group, and not Ms Barnes, nor any of the other eight second respondents acting in their capacity as representative parties under s 24CD, who had to assent to the QGC – Iman agreement.

No role in signing an ILUA

101. Turning then to the question of signing an ILUA. There is nothing in the language of s 24CD, nor any other relevant provision of the Act or the Regulations, that requires any of the parties to an ILUA, to sign it. That may not be surprising, because nor is there any such requirement at common law. At common law, while the signing of an agreement is the traditional method of indicating assent to it, the parties may reduce their agreement into writing without signing it and rely upon evidence independently of the agreement to prove their assent to it: see Parker v South Eastern Railway Co (1877) 2 CPD 416 at 421, referred to with approval in Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165; [2004] HCA 52 at [42].
102. Moreover, the ILUA provisions of the Act contain a specific process which, among other things, provides evidence independently of an ILUA that the native title contracting group has assented to it. This arises by a combination of ss 24CG(3) and 203BE. Under s 24CG(3)(a), any application to register an agreement as an ILUA must be certified by the recognised representative body for the area in accordance with s 203BE(1)(b), (5) or (6). This certificate must certify that all reasonable efforts have been made to ensure that all persons who hold, or may hold, native title in relation to the land concerned have been identified and all the persons so identified have authorised the making of the agreement under s 251A. Alternatively, under s 24CG(3)(b), the application must include a statement to the same effect. The obvious purpose of these provisions is to ensure that everyone who holds, or may hold, native title in the land concerned is identified and is involved in the process of authorising the ILUA under s 251A: see the observations of the Full Court to this effect in Murray at [25] above. This then links with the provisions of ss 24EA and 24EB which, among other things, provide that once an agreement is entered on the Register of ILUAs, it binds everyone who holds, or claims to hold, native title in the land concerned and it allows for the validation of the identified future acts affecting native title on that land.
103. For these reasons, it is open to the native title contracting group to rely upon this process in the ILUA provisions of the Act, rather than indicating its assent to the agreement in the traditional way, by signing it. It follows that, whether or not she was a party to the QGC – Iman agreement, the absence of Ms Barnes’ signature to that agreement could not be taken to indicate her lack of assent to the agreement. In any event, this aspect is largely academic because, for the reasons explained above, Ms Barnes’ assent to the QGC – Iman agreement was not called for.

No consent required to be a representative party to an ILUA

104. Finally, there is the question of consent. To recap, this question stems from the Delegate’s conclusion that: “As Ms Barnes has refused to sign the Agreement, she is not a party to the Agreement”. As I have already alluded to above (at [49] and [96]), it is implicit in this conclusion that the Delegate also concluded that all of the nine second respondents had to consent to being parties to the QGC – Iman agreement in order for them to be properly regarded as parties to the agreement for the purposes of s 24CD.
105. This also raises the second of the specific questions identified above: do ss 24CD(1) and (2) require that the person or persons who are specified to be parties to an ILUA, need to consent to their being made parties?
106. I have already concluded above (at [90]–[94]) that s 24CD could not be construed to require such consent, because that would give an individual member of a registered native title claimant a veto power in relation to an ILUA, which would have the absurd and unfair result of overriding the decision of the native title contracting group that authorises an ILUA under s 251A of the Act and, in the process, act to frustrate, rather than facilitate, the ILUA provisions of the Act.
107. I have also concluded above (at [97]–[100]) that no privity of contract is created with the members of a registered native title claimant, in their capacity as representative parties under s 24CD, and they are, therefore, not required to assent to the ILUA. That being so, there is no logical reason why there should be any requirement for them to consent to being representative parties to the ILUA. This is further reinforced by the very limited role they have as representative parties under s 24CD: see [84] above.
108. Each of these is a strong enough reason in itself to conclude no such consent is required, but I will mention one other. That is, there is also no indication from the language of s 24CD that the representative parties to an ILUA under s 24CD, have to consent to being parties to an ILUA. The use of the word “must” in s 24CD(1) which, as I have observed above (at [27]), indicates obligation or necessity, strongly suggests to the contrary. As well, as Mr Rangiah pointed out, the obligatory language in s 24CD(1) is to be contrasted with the permissive language in ss 24CD(4) and (6), which provide that certain other persons “may” also be parties to the agreement. It can also be contrasted with other provisions of the Act where express written consent is required in not dissimilar circumstances, viz the written consent of a prescribed body corporate to be trustee under a native title determination: see s 56(2)(a)(ii) and s 57(2)(a)(ii), and compare this with the lack of any such requirement for registered native title bodies corporate to consent to being parties to an ILUA under s 24CD(2)(b).
109. For these reasons, I do not consider there is any requirement in s 24CD of the Act that the representative parties to an ILUA under s 24CD have to consent to becoming parties to that ILUA.

No authorisation is provided to the representative parties under ss 251A or 251B

110. It is also apparent from the Delegate’s decision that she appears to have concluded that the applicant and, therefore, the registered native title claimant, had been provided with some authority – it is not clear what – by the native title claim group. Some of the submissions of counsel also suggested there was some link between the authorisations provided under ss 251A and 251B and the making of an ILUA. I do not consider these constructions of those sections are correct.
111. It is appropriate to begin with the different meanings the word “authorise” may have. In University of New South Wales v Moorhouse (1975) 133 CLR 1; [1975] HCA 26 (“Moorhouse”), the High Court had to consider the word “authorised” in s 36 of the Copyright Act 1968 (Cth), which deals with, among other things, a person authorising the doing of an act that infringes copyright. At p 20, Jacobs J observed that the meaning of the word “authorise” was not limited to “the authorizing of an agent by a principal”, but it could have the wider meaning of: “sanction, approve, countenance”. The Court adopted this wider meaning in that case: see at p 12 per Gibbs J and pp 20–21 per Jacobs J. This decision serves to identify the alternative meanings of the word “authorise” may have under ss 251B and 251A of the Act.
112. Turning then to the authorisation under s 251B of the Act (set out at [42] above). On its face, this is an authorisation by the native title claim group (as defined in ss 253 and 61(1)) to the applicant and the persons comprising it (see ss 253 and 61(2)), to do a specific thing, ie to make a native title claim. This authorisation also carries with it the authority to “deal with matters in relation to” the claim: see s 251B and 62A of the Act. In my view, this form of authorisation falls into the narrower, principal and agent, form of authorisation described in Moorhouse.
113. By comparison, the authorisation under s 251A is not expressed to give any authority to the registered native title claimant, or the applicant, or indeed anyone. Further, it is not expressed to authorise anyone to do anything. Rather it provides that the native title contracting group “authorise[s] the making of the agreement”. Taking into account these aspects of the language of s 251A, I consider the form of authorisation described in that section is of the wider, sanctioning or approving, form of authorisation, described in Moorhouse. On the same basis and in this context, I consider the words “making of the agreement” encompass matters such as the native title contracting group deciding: to accept the terms of the agreement; to communicate that acceptance to the other party to the agreement; and how it wishes to indicate its assent to the agreement. This means it could do the latter by authorising someone, eg a solicitor, to sign the agreement on its behalf or, as here, by authorising all, or some, of the members of the RNTC to do that. Alternatively, I consider it could elect not to have someone sign the agreement at all, but to rely, instead, upon the certificate of the authorised representative body under s 203BE(1)(b), (5) and (6) of the Act to the effect that it had properly authorised the making of the agreement under s 251A: see [102] above. Conversely, for these reasons, I do not consider the words “making of the agreement” in the context in which they occur, can be construed as providing any authority to the members of a registered native title claimant who are named as representative parties under s 24CD, to perform any wider role in relation to an ILUA.
114. There is also a number of other aspects of the authorisations under ss 251A and 251B that I consider support the conclusion that neither the applicant, nor the members of a registered native title claimant, are given any authority under those sections to perform any role in relation to an ILUA, beyond the members of the latter being named as representative parties to it. First, and most fundamentally, the claim group that provides the authorisation under s 251B is a different and narrower group of indigenous persons than the native title contracting group that authorises the making of an ILUA under s 251A. The former includes the particular group of indigenous persons who authorised the applicant to make the claim, whereas the latter may include other indigenous persons who were not included in the claim group, but yet still claim to hold native title in the area of land concerned. Indeed, this is what occurred in this case: see [5] above. It follows that there is a disconnect between ss 251B and 251A because any authorisation given to the applicant by the claim group under s 251B would not emanate from the group that had the relevant contracting interest in relation to an ILUA under s 251A, ie the native title contracting group.
115. Secondly, and further to the aforegoing, while they will usually be made up of the same persons, the applicant and a registered native title claimant still serve quite distinct and different roles or functions under the Act. The former’s role relates to the pursuit of a native title claim under the Act and the latter is involved (albeit in a limited way) in the ILUA process under the Act. This is partly demonstrated by the fact that the provisions of the Act dealing with both are kept quite discrete and, even in those few sections where the two expressions are referred to together in the same section, they have quite different roles, or functions: see ss 30(4) (re the persons who are entitled to receive a notice under s 29 where one person replaces another as a native title party); 66(3)(a) (re the persons to whom the Registrar must give notice of an application received under s 63); and 87A(1)(c) (re the persons who must be parties to an agreement for a consent determination under s 87A).
116. Finally, unlike with s 62A, which gives the applicant the authority to deal with matters incidental to the making of a claim, there is no provision of the Act which gives a registered native title claimant any express authority to do anything, not even in relation to an ILUA, under the ILUA provisions in the Act.
117. So, to sum up, I do not consider the authorisation given to the applicant by the native title claim group under s 251B provides any authorisation to either the applicant or, in its alter ego, a registered native title claimant, to perform any role under the ILUA provisions in the Act. Furthermore, I do not consider the authorisation given by the native title contracting group under s 251A to the making of an agreement, provides any authorisation to the members of a registered native title claimant that are named as representative parties to an ILUA, to perform any role in relation to that ILUA, beyond being named as such. Of course, as I have already observed above (at [113]), this does not prevent the native title contracting group, as a part of authorising the making of an agreement under s 251A, from authorising the members of the registered native title claimant, or some, or all, of them, to do something, or take some role, such as signing the ILUA. But, in my view, this stems from that decision by that group, not from the authorisation of the making of the agreement under s 251A, and certainly not from the authority provided to the applicant to make the claim under s 251B.

Section 66B offers no solution

118. Finally, in relation to this authorisation issue, it is appropriate to deal with the submissions of counsel that s 66B provides a solution if a member of a registered native title claimant refuses to assent to an ILUA, or to consent to becoming a party to it. For the reasons I have given immediately above, I do not consider that using s 66B to alter the composition of the authorised applicant under s 251B, will have any relevant effect on the authorisation of the making of an agreement under s 251A. This is so because any authority given to the applicant under s 251B is limited to pursuing a claim and does not apply to the ILUA process under the Act. This is further supported by my conclusion (at [83] above) that it is only necessary to name some (but not all) of the members of a registered native title claimant as representative parties to an ILUA under s 24CD. In other words, if it is not necessary to name all of those members, dissentient members are unlikely to be named as a representative party. Even if they are, their role is limited to being so named so changing the membership of the applicant by removing or replacing one of them under s 66B, will be quite otiose. The fact that this course may have been taken in Daniel and the later related decision of Holborow v Western Australia [2002] FCA 428, is not to the point because both those cases are distinguishable. They both dealt with agreements under s 24MD of the Act in relation to a compulsory acquisition by the State of Western Australia and did not involve an ILUA, or an authorisation under s 251A of the Act. I should also add that I do not consider Logan J came to a different conclusion in Fesl (at [71]–[72]), where he compared the similarities between ss 251B and 251A.
119. Furthermore, the proposition that changing the composition of the authorised applicant under s 66B to alter the membership of a registered native title claimant so as to comply with s 24CD, raises some other potential difficulties that were adverted to by the Full Court in Murray – a late discovery of an omission to include a person as a party under s 24CD, depriving an agreement of its status as an ILUA – (see [68] above). If the s 66B solution is valid, the converse of it must apply as well. It must follow that other different and uncontrollable changes would also affect the status of an agreement as an ILUA under the ILUA provisions of the Act. This situation could conceivably arise where one, or a small number of persons who comprise the authorised applicant, die, or become legally incapacitated, during the process of negotiating, entering into, or registering an ILUA. If this happened, it would leave the ILUA without the necessary indigenous party under s 24CD. It would then lose its status as an ILUA and, therefore, presumably be liable to be removed from the Register of ILUAs. Given that the members of the applicant and, therefore a registered native title claimant, are usually the senior members of a claim group, and ILUAs usually operate for long periods of time, this scenario is by no means a remote possibility. It is also conceivable that a claim to an area of land within a larger area subject to an ILUA could be withdrawn, dismissed, or granted. In that event, the claim would be removed from the Register of Native Title Claims under s 190(4). Once that happens, the registered native title claimant would cease to exist because the entry in relation to it would be removed from the Register of Native Title Claims and it would, therefore, cease to meet the definition in s 253. In that event, presumably any agreement that involved that registered native title claimant would also lose its status as an ILUA. While it is not necessary for me to determine these issues in this case, it does suggest, in my view, that the naming of the representative parties to an ILUA under s 24CD should be sufficient to comply with s 24CD. It is, after all, simply a device to allow the native title contracting group to enter into the ILUA. If this is correct, there would be no reason why one would want to change the membership of the authorised applicant under s 66B.

CONCLUSION

120. For the reasons I have given above, in this case, since the RNTC is the sole registered native title claimant in relation to the land and waters in question, it has to be the native title group party to the QGC – Iman agreement under ss 24CD(1) and (2)(a). That is achieved by naming one or more of the nine second respondents, as representative parties to the QGC – Iman agreement. As it happens, all nine members of the RNTC have, in fact, been named as parties to the QGC – Iman agreement: see at [4] above. That is all that is required by s 24CD and, it follows, that the QGC – Iman agreement meets the prerequisites set out in s 24CD of the Act. Furthermore, for the reasons I have given above, there was no need for Ms Barnes to assent to the QGC – Iman agreement, or to sign it, or to consent to becoming a party to it. Her failure to do any of these things, therefore, had no effect on the status of the QGC – Iman agreement under the ILUA provisions of the Act.
121. Accordingly, I consider that QGC is entitled to certain, but not all of the relief it claims. In particular, I do not consider I should pre-empt the decision the Registrar still has to make under s 24CJ which, as I have observed above (at [27]–[28]), in this case, has to be made once she has given notice of the agreement under s 24CH and received and considered any objections under s 24CI. I therefore consider the decision whether the QGC – Iman agreement is an ILUA within the meaning of s 24CA – which extends to more than the prerequisites in s 24CD – is one that should properly be made by the Registrar in accordance with ss 24CJ and 24CK of the Act. Nonetheless, I consider that QGC is entitled to the following relief:
     1. An order setting aside that part of the Delegate’s decision, in which she found that the requirements of s 24CD(1) and (2)(a) of the Act had not been met, and consequently found that the QGC – Iman agreement was not an indigenous land use agreement within the meaning of s 24CA of the Act;
     2. A declaration that, in relation to the QGC – Iman agreement, the requirements of s 24CD(1) and (2)(a) of the Act have been met by naming as parties to the agreement the nine second respondents whose names appear in the entry on the Register of Native Title Claims as the applicant in relation to the Iman #2 claim;
     3. An order directing the Delegate to:

(a) give notice of the QGC – Iman agreement in accordance with s 24CH of the Act; and

(b) otherwise deal with the application to register the QGC – Iman agreement according to law.

122. Finally, I note that, since QGC has been successful in relation to the first and second issues identified above (see at [14]), it is not strictly necessary for me to consider the third issue, ie the cross-claim sought by the second respondents against Ms Barnes. However, in case I may later be held to be wrong about my conclusion that Ms Barnes did not need to sign, or to consent to being a party to the QGC – Iman agreement, I should briefly indicate my conclusion on this issue.
123. If s 24CD is to be construed so that it requires that all the persons who comprise a registered native title claimant must consent to being a party to an ILUA, I do not consider that construction should carry with it the power of veto I have referred to above (at [90]–[95]). For the reasons expressed there, I consider that outcome would frustrate the ILUA provisions of the Act and would result in an absurd and unfair outcome. This is so because, among other things, such a construction would allow one member of a registered native title claimant to override the wishes of the native title contracting group, even though that group had made a decision to authorise an ILUA in accordance with s 251A of the Act. In that event, and to avoid this outcome, I consider that the same approach should be taken to the construction of the expression “registered native title claimant” as has been taken by other judges of this Court in relation to the construction of the expression “applicant” in s 61(2), where one member of the applicant is unwilling or unable to be involved in some aspect of a native title claim. That is, that s 24CD should be construed so that it requires that so many of the persons who comprise the “registered native title claimant” as are willing and able to do so, are named as the representative parties to an ILUA. Thus, if a person is named as a representative party and he or she does not consent to being a party, that party’s name can then be either removed or disregarded, without affecting the status of the agreement as an ILUA under the ILUA provisions of the Act.
124. This approach is similar to that taken to the construction of the definition of the expression “applicant” in Butchulla People at [42] to [43]; Doolan at [56] to [59]; and Lennon at [34]. For completeness, I should add two things. First, I note a different conclusion was reached in Sambo v Western Australia (2008) 172 FCR 271; [2008] FCA 1575. If it were necessary to do so, it follows from the view I have expressed above that I would be forced to respectfully disagree with that decision, as Mansfield J did in Lennon: at [32]. Secondly, I do not consider the recent decision in Tigan v Western Australia [2010] FCA 993 affects my conclusion about the construction of the definition of the expression “applicant” because, in that case, Gilmour J distinguished the first two of these decisions above on their facts (at [27]) and the factual situation he was dealing with – a claim group directing a notice of change of solicitor be filed contrary to the wishes of some of the members of the authorised applicant – is itself distinguishable from the factual situation I have outlined above.
125. I will hear the parties on the question of costs.
     

I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated: 17 September 2010