Northern Land Council v Quall

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Edelman JJ,Nettle,Gageler,Keane JJ
• Judgment Date: 07 October 2020
• Neutral Citation: [2020] HCA 33
• Date: 07 October 2020
• Docket Number: D21/2019
• Court: High Court

[2020] HCA 33

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Keane, Nettle and Edelman JJ

D21/2019

Northern Land Council & Anor

Appellants

and

Kevin Lance Quall & Anor

Respondents

Representation

S A Glacken QC with R W Kruse for the appellants (instructed by Northern Land Council)

B W Walker SC with A K Flecknoe-Brown for the first respondent (instructed by Robert Welfare & Associates)

P F McIntyre for the second respondent (instructed by McQueens Solicitors)

R J Webb QC with C I Taggart for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

N Kidson QC with L S Peattie for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 27, 28.

Acts Interpretation Act 1901 (Cth), ss 34A, 34AB.

Native Title Act 1993 (Cth), ss 203BE, 203BK, 203FH.

Aboriginal and Torres Strait Islander peoples — Native title — Representative Aboriginal/Torres Strait Islander bodies — Indigenous land use agreements (“ILUAs”) — Where s 203BE(1)(b) of Native Title Act 1993 (Cth) confers on representative body function of certifying applications for registration of ILUAs — Where s 203BE(5) prohibits representative body from certifying application for registration of ILUA unless satisfied that all reasonable efforts made to ensure all persons who hold or may hold native title have been identified and authorised making of agreement — Where s 27(1) of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) provides that a Land Council may do all things necessary or convenient to be done for or in connection with performance of its functions — Where Northern Land Council (“NLC”) a representative body — Where CEO of NLC signed certificate purportedly as delegate of NLC certifying application for registration of ILUA and stating NLC satisfied that identification and authorisation requirements met — Whether certification function conferred by s 203BE(1)(b) capable of delegation by NLC to CEO — Whether CEO can perform certification function conferred by s 203BE(1)(b) as agent of NLC.

Words and phrases — “Aboriginal and Torres Strait Islander peoples”, “agency”, “agent”, “authorised”, “body corporate”, “certification”, “certification function”, “delegability”, “delegable”, “delegate”, “delegation”, “identified”, “indigenous land use agreement”, “Land Council”, “native title”, “natural person”, “necessary or convenient”, “power of delegation”, “representative Aboriginal/Torres Strait Islander body”, “representative body”.

ORDER

• 1. Appeal allowed.

• 2. Set aside the declaration and order 3 of the orders made by the Full Court of the Federal Court of Australia on 19 June 2019 and, in their place, order that the cross-appeal be dismissed.

• 3. Set aside orders 1 and 2 of the orders made by the Full Court of the Federal Court on 19 June 2019 and remit to the Full Court of the Federal Court the unresolved appeal to that Court and the unresolved application for leave to adduce fresh evidence in that appeal.

• 4. In accordance with undertakings given as a condition of the grant of special leave to appeal, the appellants are to bear the first and second respondents' costs of the appeal limited to one set of costs.

• 5. In accordance with undertakings given as a condition of the grant of leave to intervene, the Attorney-General of the Commonwealth and the Northern Territory are to bear jointly with the appellants the first and second respondents' costs of the appeal as limited pursuant to order 4.

1 Kiefel CJ, Gageler AND Keane JJ. The ultimate question in this appeal is whether the Northern Land Council (“the NLC”) has power to delegate to its Chief Executive Officer (“the CEO”) the function conferred on it as a representative body by s 203BE(1)(b) of the Native Title Act 1993 (Cth) (“the NT Act”) of certifying an application for registration of an indigenous land use agreement (“ILUA”) relating to an area of land or water wholly or partly within the area for which it is a representative body subject to satisfaction of the precondition imposed by s 203BE(5) of the NT Act that it is of the opinion that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA have been identified and that all of the persons so identified have authorised the making of the ILUA.

2 The answer is that the NLC has that power of delegation under s 27(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the ALR Act”). If the NLC exercises that power to delegate the certification function to the CEO, the CEO is empowered by s 34A of the Acts Interpretation Act 1901 (Cth) (“the AI Act”) to perform the certification function on the basis of the CEO's own opinion in relation to the matters in s 203BE(5) of the NT Act, and certification by the CEO in performance of the delegated function is attributed to the NLC by force of s 34AB(1)(c) of the AI Act.

Process for registration of an ILUA

3 Under Div 3 of Pt 2 of the NT Act, a future act affecting native title is valid if, but only if, the parties to the ILUA consent to it being done and, at the time it is done, the ILUA is registered on the Register of Indigenous Land Use Agreements 1. Registration of an ILUA that is an area agreement under Subdiv C of Div 3 of Pt 2 can occur only on application made by a party to the Native Title Registrar, who is also responsible for the Register of Indigenous Land Use Agreements 2.

4 One requirement for the making of an application for registration of such an ILUA concerns identification of persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA and authorisation by

those persons of the making of the ILUA 3. The requirement can be met in either of two ways

5 The first way the requirement can be met is by the application for registration having been certified by all representative bodies for the area in the performance of their functions under s 203BE(1)(b) 4. If the application has been so certified, any person claiming to hold native title in relation to land or waters in the area covered by the ILUA is entitled within a specified period to object to registration 5 and the Registrar at the end of that period must make a decision 6 to register the ILUA if specified conditions are met or not to register the ILUA if any specified condition is not met 7. One of the specified conditions on which registration depends involves absence of any unwithdrawn objection 8 or, in the face of an unwithdrawn objection, non-satisfaction on the part of the Registrar that the requirements as to identification and authorisation set out in s 203BE(5) were not met in relation to the certification of the application by any representative body 9. Faced with an unwithdrawn objection, the question for administrative determination by the Registrar is whether (having regard to information provided by the person making the objection and the representative body concerned 10) the Registrar is satisfied by the objector that all reasonable efforts have not been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA have been identified or that one or more

of the persons who have been identified have not authorised the making of the ILUA 11. If the Registrar is so satisfied, the Registrar must not register the ILUA

6 The second way the requirement can be met is by the application for registration including a statement to the effect that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified and that all of the persons so identified have authorised the making of the agreement together with a statement briefly setting out the grounds on which the Registrar should be so satisfied 12. Where those statements appear in an application, the Registrar must decide either to register the ILUA if other specified conditions are met or not to register the ILUA if any specified condition is not met 13. A specified condition then is that the Registrar affirmatively considers (having regard to the statements in the application and any information provided by any representative body or any other body or person 14) that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA have been identified and that all of the persons so identified have authorised the making of the ILUA 15. If the Registrar does not affirmatively so consider, the Registrar must not register the ILUA.

7 Depending on how an application for registration of an ILUA is made the Registrar can therefore come under a duty to exercise either of two relevant powers as a precondition to registering the ILUA: a power to determine any unwithdrawn objection by re-examining the matters about which a representative body has formed an opinion under s 203BE(5), where an ILUA has been certified; or a power to form an independent opinion about the same matters as those about which a representative body would be required to form an opinion under s 203BE(5), where an ILUA has not been certified. Those powers can be exercised personally by the Registrar, who is a statutory officer appointed under the NT Act 16. Those

powers can alternatively be exercised by a Deputy Registrar or by any member of the staff assisting the National Native Title Tribunal, who are persons engaged under the Public Service Act 1999 (Cth) 17, under delegation from the Registrar 18. The nature and delegability of the powers so conferred on the Registrar bear on the nature of the...