The Federal Court considered three challenges to ILUA registration in the last past 12 months. The decisions provide guidance about who must authorise an ILUA and highlight the importance of identifying whether there is a traditional decision-making process for agreements of the kind contained in the relevant ILUA.
Recap: requirements to certify an ILUA
An application to register an Indigenous Land Use Agreement (ILUA) on the ILUA Register may be accompanied by a certification of the relevant representative Aboriginal or Torres Strait Islander Body under section 203BE(1)(b) of the Native Title Act 1993 (Cth) (Native Title Act). The certification goes to the authorisation process for the ILUA.
Section 203BE(5) provides:
A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:
(a) 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
(b) all the persons so identified have authorised the making of the agreement.
Note: Section 251A deals with authority to make the agreement.
Section 251A provides:
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.
These provisions have been the subject of three Federal Court decisions in 2018.
Bright v Northern Land Council
In Bright v Northern Land Council [2018] FCA 752, the Federal Court dismissed a judicial review application against the National Native Title Tribunal's (NNTT's) decision to register an ILUA certified by the Northern Land Council.
The applicant on behalf of the Rak Mak Mak clan objected to the registration of the ILUA on the grounds that they were native title holders and had not authorised the ILUA. The Federal Court held that:
- the term “who … may hold native title” incorporates a notion of reasonableness. The term should be understood as though it read “or who may, reasonably considered, hold native title” (at [154]);
- section 203BE(5) contemplates that the persons who hold or may hold native title in relation to the land in question will be finite and, further, may be identified by the making of all reasonable efforts. The notion that persons making only an assertion of native title will be persons who “hold or may hold” native title does not seem consistent with this understanding;
- it does not seem reasonable to suppose that the Native Title Act intends that persons making assertions of native title without a reasonable basis should nevertheless be involved in the authorisation of the making of an ILUA; and
- the section leaves open the possibility that, despite all reasonable efforts having been made, some persons who hold or may hold native title may not be identified. It is inherent in the process that the making of such reasonable efforts could result in the inclusion of some persons and the exclusion of others.
Kemppi v Adani Mining Pty Ltd (No.4)
In Kemppi v Adani Mining Pty Ltd (No.4) [2018] FCA 1245, the Federal Court dismissed an application by Ms Kemppi to set aside the registration of an ILUA between the Wangan and Jagalingou People and Adani Mining Pty Ltd that had been certified by Queensland South Native Title Services.
The principal basis of the challenge was that little or no attempt was made to verify the claims of those persons who attended the ILUA authorisation meeting that they were Wangan and Jagalingou People, and that the authorisation meeting contained large numbers of people who were not part of the Wangan and Jagalingou claim group.
The Federal Court agreed with the observations of Justice Reeves in QGC Pty Ltd v Bygrave (No 3) [2011] FCA 1457 that the identification process in section 203BE(5)(a) is intended to be inclusive and expansive. It is intended to cast the widest possible net so that any person who may hold native title in the area of the proposed ILUA is identified and given the opportunity to participate in the process of authorising, or consenting to, the making of that ILUA.
The Federal Court rejected the proposition that the identification process in section 203BE(5)(a) is limited to those persons who can demonstrate by some means that they may hold native title in the area of the proposed ILUA. The text, context or purpose of section 203BE(5)(a) supports the opposite conclusion.
The applicant argued for a restriction on the membership of the group who could participate in the authorisation process for the ILUA, namely that it was limited to Wangan and Jagalingou People. The Federal Court confirmed that criterion for membership of the group is whether the person “may hold native title” in the area of the ILUA. It is not limited to membership of the Wangan and Jagalingou People, or more specifically, the Wangan and Jagalingou claim group.
The applicants appealed this decision to the Full Federal Court. The appeal is likely to be heard in the 2019 sittings.
Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams
In Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams [2018] FCA 1955 the Federal Court agreed with the NNTT's decision not to register an ILUA that had been certified by the Kimberley Land Council under section 203BE(1)(b) of the Native Title Act.
The ILUA provided for the surrender of native title in relation to a small area excluded from the Balanggarra #3 determination of native title. The ILUA was between the State of Western Australia, the Balanggarra Aboriginal Corporation (the registered native title body corporate), the persons who jointly comprised the registered native title claimant in the Balanggarra #3 claim and the Kimberley Land Council (KLC).
An objection to the registration application was lodged by the Williams/French family (who were members of the native title holding group), on the grounds that the ILUA had not been properly authorised under section 251A of the Native Title Act.
The issue turned on whether there was a "traditional decision making process for authorising things of that kind".
The KLC and native title parties to the ILUA contended that the native title holders determined that they did not have a traditional decision-making process for authorising the ILUA and thereby proceeded, amongst themselves, to determine by what method the question of authorisation should be determined.
The Federal Court held that the expression, “authorising things of that kind” in section 251A(1)(a) focuses on authorising an ILUA specifically dealing with the surrender of native title, not an ILUA generally. Depending on what an ILUA deals with, there may or may not be a relevant traditional decision making process to cover it.
Because the group of native title claimants who attended the authorisation meeting were never asked whether there was a traditional decision-making process that must be complied with in relation to authorising an agreement that involved the surrendering of native title in the agreement area, the authorisation was not properly carried out.
The Federal Court upheld the delegate's decision and said that the authorisation would have to be reconsidered by the native title claim group. They will need to decide, by reference to section 251A(a) of the Native Title Act, if there is a relevant traditional decision making process that “must be complied with” in relation to the ILUA surrendering native title over the six parcels of land. If there is, the ILUA must be authorised “in accordance with that process”. If there is not, then a process agreed and adopted by the claimants may be followed, as provided by section 251A(b) of the Native Title Act.
Key points to note
- These decisions are extremely useful for all parties involved in the negotiation of ILUAs. Given the significant number of registered ILUAs around Australia, it is perhaps surprising how little jurisprudence exists in relation to the detailed requirements that must be met before an ILUA may be registered.
- The challenges in Bright and Kemppi were effectively at opposite ends of the same question about exactly who must be involved in the authorisation process (ie people excluded v too many people included). This allowed the Federal Court to explore factual scenarios that are by no means unique in native title agreement making and provide specific authority about exactly who is, and who is not, required to be involved in the authorisation process.
- The Kimberley Land Council decision highlights the importance of identifying, for each and every ILUA, whether there is a traditional decision-making process for agreements of the kind contained in the relevant ILUA. This is regardless of how the group decided on matters in earlier agreements.
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