Kemppi v Adani Mining Pty Ltd (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 12 July 2019
• Neutral Citation: [2019] FCAFC 117
• Date: 12 July 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Kemppi v Adani Mining Pty Ltd (No 2) [2019] FCAFC 117

Appeal from:	Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245
File number:	QUD 638 of 2018
Judges:	RARES ACJ, ROBERTSON AND PERRY JJ
Date of judgment:	12 July 2019
Catchwords:	NATIVE TITLE – statutory construction – subject matter of judicial review of administrative decision-making – where representative body certified area ILUA under s 203BE(1)(b) of the Native Title Act 1993 (Cth) – whether challenge to s 203BE(1)(b) certificate possible after Registrar determines under s 24CK to register area indigenous land use agreement (ILUA) – where objectors exercised right to object to registration of agreement on Register of Indigenous Land Use Agreements under s 24CI – where application to register area ILUA included certification by representative body of its opinion under s 203BE(1)(b) that requirements of pars (a) and (b) of s 203BE(5) had been satisfied – where Registrar required under s 24CK(1) to register agreement if satisfied that two conditions met – where objectors alleged that first condition not met because requirements in pars (a) and (b) of s 203BE(5) not satisfied – where Registrar satisfied under s 24CK that both conditions met – where objectors did not challenge Registrar’s decision before primary judge but only representative body’s certificate ; NATIVE TITLE – statutory construction – where application made under s 24CG of Native Title Act to register area ILUA on Register of Indigenous Land Use Agreements – where application accompanied by agreement providing written description and map of “Surrender Zone” within which parties proposed to later identify particular areas where some or all native title rights would be surrendered – whether requirement in regs 5 and 7(2)(e) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) that application for registration be accompanied by document including “complete description” of the area in which rights are to be surrendered requires description of exact areas to be surrendered ; NATIVE TITLE – statutory construction – where representative body must not certify agreement under s 203BE(5) unless of opinion that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in area covered by the agreement have been identified and all persons so identified have authorised the making of the agreement – whether “may hold” should be given inclusive and expansive meaning or exclusive and rigorous meaning – whether representative body required to assess every person attending authorisation meeting to assess whether he or she was a member of native title group
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court of Australia Act 1976 (Cth) s 27 Native Title Act 1993 (Cth) Preamble, ss 24AA, 24CA, 24CB, 24CC, 24CD, 24CE, 24CG, 24CH, 24CI, 24CJ, 24CK, 24CL, 24EB, 61, 66B, 84A, 199C, 201B, 203BE, 203BJ, 225, 251A, 253 Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (Cth) Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) regs 5, 7
Cases cited:	Bright v Northern Land Council [2018] FCA 752 Calvin v Carr [1980] AC 574 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 Corunna v South West Aboriginal Land and Sea Council (2015) 235 FCR 40 Edwards v Santos Ltd (2011) 242 CLR 421 Hamilton v Whitehead (1988) 166 CLR 121 Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245; (2018) 360 ALR 697 Kemppi v Adani Mining Pty Ltd (No 5) [2018] FCA 2104 Kemppi v Adani Mining Pty Ltd [2019] FCAFC 94 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Mabo v Queensland (1992) 175 CLR 1 Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337 McGlade v Native Title Registrar (2017) 251 FCR 172 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 QGC Pty Ltd v Bygrave (No 3) [2011] FCA 1457; 199 FCR 94 Quall v Northern Land Council [2019] FCAFC 77 Reg v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 Twist v Randwick Municipal Council (1976) 136 CLR 106 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24; 139 FCR 344
Date of hearing:	27 - 28 May 2019
Registry:	Queensland
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	111
Counsel for the Appellants:	Mr S Keim SC with Mr D Yarrow
Solicitor for the Appellants:	Just Us Law
Counsel for the First Respondent:	Mr T Sullivan SC with Mr E Goodwin
Solicitor for the First Respondent:	Herbert Smith Freehills
Counsel for the Second Respondent:	Mr J Horton QC with Ms E Longbottom
Solicitor for the Second Respondent:	Queensland South Native Title Services Ltd
Counsel for the Third Respondent:	Mr G del Villar with Ms F Nagorcka
Solicitor for the Third Respondent:	Crown Law
Counsel for the Fourth Respondent:	The fourth respondent filed a submitting notice

ORDERS

		QUD 638 of 2018
BETWEEN:	DELIA KEMPPI First Appellant ; LESTER BARNARD Second Appellant ; LYNDELL TURBANE (and others named in the Schedule) Third Appellant
AND:	ADANI MINING PTY LTD (ACN 145 455 205) First Respondent ; QUEENSLAND SOUTH NATIVE TITLE SERVICES LTD (ACN 114 581 556) Second Respondent ; STATE OF QUEENSLAND (and another named in the Schedule) Third Respondent

JUDGES:	RARES ACJ, ROBERTSON AND PERRY JJ
DATE OF ORDER:	12 JULY 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

RARES ACJ AND ROBERTSON J:

Introduction

1. The appellants are five of the 12 members of the applicant under s 66B of the Native Title Act 1993 (Cth) for a determination of native title on behalf of the W & J (Wangan and Jagalingou) claim group. The appellants appeal from the order made by a judge of this Court on 17 August 2018, dismissing their further amended originating application filed on 18 December 2017: Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245; (2018) 360 ALR 697. Costs orders were made by the primary judge in December 2018: Kemppi v Adani Mining Pty Ltd (No 5) [2018] FCA 2104.

2. The amended originating application sought the following relief, which the appellants now seek in this appeal:

2. A declaration that the certificate issued on behalf of the Second Respondent on 26 April 2016 under s.203BE(1)(b) of the Native Title Act 1993 (Cth), certifying the application by the First Respondent for the...