What you need to know
- In October 2020, the High Court held that the ILUA certification function in the Native Title Act could be delegated by the Northern Land Council as a Representative Body (Northern Land Council & Anor v Quall & Anor [2020] HCA 33).
- The High Court overturned the Full Federal Court's decision in Northern Land Council v Quall [2019] FCAFC 77. It referred to the Full Federal Court decisions of McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No. 2) [2019] FCAFC 238 and Kemppi v Adani Mining Pty Ltd [No 2] (2019) 271 FCR 423, noting that they illustrate that the certification function performed by a Representative Body that is a company incorporated under the Corporations Act (and presumably by analogy the CATSI Act) might also be delegated.
- Some discrete matters were remitted back to the Full Federal Court. Then, in a final end to this matter, in January 2021 the Full Federal Court found that the delegation of the certification function in this case was valid.
What you need to do
- When negotiating ILUAs that are to be certified, parties must turn their attention to the Representative Body's delegation power, and not necessarily assume that all is in order as a matter of course.
Three years of litigation about ILUA authorisation and certification
It has been three very litigious years in the ILUA world, as disaffected Indigenous parties have challenged the authorisation or certification of a number of ILUAs around Australia in proceedings that have gone on appeal to the Full Federal Court and High Court.
We wrote about these cases in our 2018 and 2019 Native Title Year in Review in our articles Authorisation and registration of ILUAs and Full Court resolves many uncertainties around ILUA registration and certification but the High Court to review delegation issue.
Although the 2019 Full Court decisions clarified some uncertainties around ILUA authorisation and certification, it was not until the High Court decision in Northern Land Council & Anor v Quall & Anor [2020] HCA 33 in October 2020 that certainty on the issue of delegation of ILUA certification functions was resolved.
ILUA certification and authorisation at a glance
The Native Title Act 1993 (Cth) requires that an ILUA is registered by the National Native Title Tribunal to deliver validity for the dealings it authorises and to have the other benefits of registration.
The registration process requires an ILUA to be either certified by a Representative Aboriginal or Torres Strait Islander Body or contain certain statements by the parties relating to the identification of the persons who hold or may hold native title and their authorisation of the agreement.
The Native Title Act provides that a Representative Body must not certify an application for registration of an ILUA unless 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 agreement have been identified; and
- all the persons so identified have authorised the making of the agreement.
If an ILUA is not certified, it is the ILUA parties themselves who must make statements in the above terms relating to identification and authorisation for successful registration.
The NLC v Quall ILUA was certified by a delegate of the NLC
The ILUA in the Quall decision was certified by the CEO of the Northern Land Council (NLC), purporting to act as the NLC's delegate. The certificate expressly provided that the NLC itself was certifying the ILUA, but it was signed by the CEO. It was the CEO who certified that the relevant opinions about authorisation were held.
In Northern Land Council v Quall [2019] FCAFC 77, the Full Federal Court held that the NLC's certification function could not be delegated. That is, the NLC itself had to exercise the function.
The High Court's decision – the NLC's certification function can be delegated
The High Court overturned the decision of the Full Federal Court by unanimously allowing the appeal.
The High Court considered two questions:
- Was delegation of the certification function compatible with the scheme of the Native Title Act?
- Did the NLC have power to delegate the certification function?
The High Court answered "yes" to both questions.
The High Court made it clear that the delegation of the certification function is compatible with the scheme of the Native Title Act. The certification function does not exhibit any special feature confining performance of that function to the members or governing body of a Representative Body.
The High Court also held that the NLC has power under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) to delegate the certification function of Representative Bodies under the Native Title Act to the CEO.
However, the High Court clarified that this is only to the extent that such delegation is objectively necessary or convenient to be done for or in connection with the performance of the certification function or other functions of the NLC.
Not the end of the road – matter remitted back to Full Court, who found that the delegation was valid
The High Court remitted the matter back to the Full Court to determine whether the certification function was duly delegated by the NLC to the CEO under the ALRA.
On 31 January 2021, the Full Court found that certification function had in fact been duly delegated, and held that the certification was valid.
Certification by CATSI Act Representative Bodies can also be delegated
It is important to note that the NLC was established under different legislation than most other Representative Bodies, i.e. the ALRA not the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) or the Corporations Act 2001 (Cth). Accordingly, the High Court's consideration of the NLC's power to delegate was focused on the ALRA and has little relevance for most Representative Bodies.
However, the High Court spoke approvingly about the recent Full Federal Court decisions dealing with certification by Corporations Act companies (and by analogy, CATSI Act corporations) – see our 7 October 2020 Native Title Alert: High Court Says "Yes" to delegation of ILUA certification function.
Implications for existing and future ILUAs
The High Court's clarification on the delegation issue is useful, but was not unexpected, despite the different conclusions reached by the Full Court in Quall and McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No. 2) [2019] FCAFC 238.
It is interesting to recall the context of the ILUA certification litigation, which concerned objections by native title group members who were unhappy about the content of the ILUAs. The Court has been forced to examine closely ostensibly uncontroversial aspects of the process. Now that this chapter has been brought to an end, there will be relief on a number of sides.
The parties to existing registered ILUAs certified by Representative Bodies finally have some certainty around the validity of their ILUAs, and importantly the tenures granted pursuant to them, which has been lacking since the trial judge's 2018 decision in Quall.
This decision will be welcomed by most Representative Bodies, given the significant savings, both in terms of time and resources, that delegation of the ILUA certification function allows.
The High Court's decision means that Representative Bodies can continue to delegate the certification function, however it highlights that they must ensure that they are empowered to do so by their constraining statute.
Authors: Leonie Flynn, Expertise Counsel and Libby McKillop, Senior Associate.
