NLC v Quall [2019] FCFCA 77
Kemppi v Adani [2019] FCFCA 117
McGlade v SWALSC (No. 2) [2019] FCAFC 238
What you need to know
- In 2019, the Full Court considered three challenges to indigenous land use agreement (ILUA) registration on the basis of certification and authorisation issues (NLC v Quall [2019] FCFCA 77, Kemppi v Adani [2019] FCFCA 117 and McGlade v SWALSC (No. 2) [2019] FCAFC 238).
- In NLC v Quall, the Full Court held that the Northern Land Council's (NLC) ILUA certification function cannot be delegated. This caused significant uncertainty for Representative Bodies and the parties to registered ILUAs throughout Australia.
- However, later in the year, in McGlade v SWALSC (No. 2), the Full Court drew a distinction between the NLC and the South West Aboriginal Land & Sea Aboriginal Corporation (SWALSC). The Court found that the SWALSC, as an Aboriginal and Torres Strait Islander corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act), could delegate the certification function.
- The High Court will ultimately resolve the issue, one way or the other, as it has since granted special leave to appeal the Quall decision. It is not known when the matter will be heard.
- The Full Court in Kemppi v Adani Mining Pty Ltd and McGlade (No. 2) also considered the authorisation requirements for ILUAs. It confirmed that "all reasonable efforts" to identify all persons "who hold or may hold native title" is intended to be an "expansive and inclusive" identification process.
What you need to do
- Representative bodies need to very carefully consider the Quall and McGlade (No. 2) decisions before certifying ILUAs to make sure that the certification meets the Full Court's requirements. If possible, delegation of the certification function should be avoided unless and until the High Court provides the green light.
- If involved in ILUA authorisation meetings, seek inspiration from the broad and detailed notification campaign of which the Full Court spoke approvingly in McGlade (No. 2).
In 2019, the Full Court considered three challenges to ILUA registration on the basis of certification and authorisation issues. These decisions provide useful guidance regarding the steps that must be taken to properly authorise or certify an ILUA. Some useful background about these and other ILUA registration and authorisation decisions is contained in our 2018 Native Title Year in Review article Authorisation and Registration of ILUAs.
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 (NNTT) 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 (Representative 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.
Full Court decides which Representative Bodies can and cannot delegate certification functions
Northern Land Council v Quall
In Northern Land Council v Quall [2019] FCAFC 77 (Quall), the Full Federal Court was asked to decide whether the certification functions of a Representative Body may be delegated to its Chief Executive Officer.
The ILUA in this case was certified by the CEO of the 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 considering a challenge to registration of the ILUA, the Full Court held that the certification function cannot be delegated. That is, the NLC itself had to exercise the function. Therefore, the NLC had not appropriately certified the ILUA.
This is a very technical point that has caused significant uncertainty for Representative Bodies and the parties to registered ILUAs throughout Australia.
The NLC has now been granted special leave to appeal. The Northern Territory Government has been granted leave to intervene in the appeal. The Commonwealth has also applied for leave to intervene. In this case at least, they all have a common view. It is not yet known when the matter will be heard or the decision handed down. The details of the High Court appeal can be found here.
McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No. 2)
The Quall decision was comprehensively considered in McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No. 2) [2019] FCAFC 238 (McGlade (No. 2)) where the Full Federal Court drew a distinction between the NLC in Quall and the South West Aboriginal Land & Sea Aboriginal Corporation (SWALSC) in McGlade No. 2. The Court found that the SWALSC did not face the same issues surrounding delegation of the certification function to its directors as had been encountered by the NLC and its CEO because:
- unlike the NLC, the SWALSC is an Aboriginal and Torres Strait Islander corporation registered under the CATSI Act;
- the directors of a CATSI Act Corporation may by resolution delegate all of their powers to a director, employee or any other person;
- accordingly, a CATSI Act Corporation can perform its functions through its directors and/or its authorised employees and agents. A function performed in this way is properly characterised as the performance of the function by the CATSI Act Corporation itself;
- on this basis, it was the SWALSC itself which performed the certification function; and
- there was no doubt that the SWALSC Board members had considerable involvement in the negotiation of the ILUAs, receiving many Board briefings of such negotiations, which indicated that the directors were familiar with the terms.
Therefore, the certification function in McGlade (No. 2) was found to have been validly performed.
What next?
The McGlade (No. 2) decision has provided reassurance in relation to ILUAs certified by CATSI Act Corporations. However, the High Court has to make its decision in the Quall appeal before we know whether the standing of some existing ILUAs is in doubt.
In the meantime, Representative Bodies need to very carefully consider the Quall and McGlade decisions before certifying ILUAs. If possible, delegation of the certification function should be avoided unless and until the High Court provides the green light.
Federal Court confirms existing authority relating to identification and authorisation processes for ILUAs
The other issue considered by the Full Court in the 2019 ILUA decisions is the identification and authorisation process itself (regardless of whether or not the ILUA is certified).
Kemppi v Adani Mining Pty Ltd
In Kemppi v Adani Mining Pty Ltd [2019] FCFCA 117 (Kemppi), the Full Court upheld the decision of the Federal Court which 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. For more details about this decision see our 2018 Native Title Year in Review article Authorisation and registration of ILUAs.
The principal basis of the challenge was that little or no attempt was made to verify that those persons who attended the ILUA authorisation meeting were in fact 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 Full Court pointed out that this was the wrong question. Rather, the question is whether reasonable efforts were made to identify all persons "who hold or may hold native title". It was open to the Representative Body to conclude that all the people who attended the meeting "may hold" native title because they were accepted and recognised by 7 of the 12 Applicants on the Wangan and Jagalingou Claim.
The Court also observed that:
- the identification process in the Native Title Act is intended to be "expansive and inclusive" (per Justice Reeves in QGC Pty Ltd v Bygrave (No 3) [2011] FCA 1457). 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; and
- what is "reasonably practical" at the start of a native title claim might be significantly different from what is "reasonably practical" at the end of a native title claim.
McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No. 2)
The Full Court in McGlade (No. 2) also considered a number of issues surrounding the authorisation process. McGlade (No. 2) was concerned with the judicial review applications of the NNTT Registrar's decision to register six ILUAs relating to the South West Area Settlement. The authorisation processes were challenged on various grounds, including the lack of involvement of incarcerated individuals in the authorisation process.
The key findings include:
- the Court reiterated that the relevant test is whether all reasonable efforts were made to identify people who hold or may hold native title rights and interests;
- in relation to incarcerated individuals, the Court stressed that it is not necessary for all native title holders (or potential holders) to participate in the authorisation process. The relevant test is whether or not a reasonable opportunity to participate has been afforded to native title holders, or those who may hold native title as a group. The Court further noted that this does not require the vote to be a unanimous vote of every member of the group; and
- after hearing evidence of the SWALSC's broad and detailed notification campaign and facilitation of information sessions with the jails, the Court was satisfied that these efforts were sufficient to determine that the opportunity afforded was reasonable in the circumstances.
Authors: Libby McKillop, Senior Associate; Leanne Mahly, Graduate; Clare Lawrence, Partner.
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