High Court says "yes" to delegation of ILUA certification function

What you need to know

• The High Court has today held that the ILUA certification function in the Native Title Act can 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. 
• The High Court 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.
• This decision will be welcomed by many native title stakeholders, given the uncertainty that has surrounded registered ILUAs certified in this manner since the trial judge's decision in Quall in 2018 (Quall v Northern Land Council [2018] FCA 989).  

What you need to do

• Parties to existing registered ILUAs that have been certified by a Representative Body pursuant to a delegated power should ensure that the Representative Body's delegation is empowered by the constraining statute.
• When negotiating future ILUAs, parties should ensure that any Representative Body intending to delegate its certification function complies with the principles laid down by the High Court in Quall and the Full Federal Court in McGlade (No 2). 

ILUA certification and authorisation at a glance 

The Native Title Act 1993 (Cth) (Native Title Act) 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 ILUA in question was certified by a delegate of the NLC

The ILUA in this case 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 2 questions:

1. Was delegation of the certification function compatible with the scheme of the Native Title Act?
2. 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.

Unfortunately, this is not the end of the road for the NLC, as the matter was remitted back to the Full Court to determine whether the certification function was duly delegated by the NLC to the CEO under the ALRA. 

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, ie 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 made reference to the recent 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 a certification function performed by a Representative Body that is a company incorporated under the Corporations Act might in practice fall to be performed through its CEO" (at [48]).  (Presumably, by analogy, the High Court's reference would also include CATSI Act Representative Bodies like the one considered in McGlade).  

In McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No. 2) the Full Federal Court found that the South West Aboriginal Land and Sea Council (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.  Unlike the NLC, the SWALSC is an Aboriginal and Torres Strait Islander corporation registered under the CATSI Act and the directors of a CATSI Act corporation may, by resolution, delegate all of their powers to a director, employee or any other person.

Implications for existing and future ILUAs 

The High Court's clarification on the delegation issue is particularly welcomed considering the different conclusions reached by the Full Court in Quall and McGlade (No 2). 

The parties to existing registered ILUAs certified by Representative Bodies can breathe a sigh of relief following the High Court's decision confirming that the certification function can be delegated by Representative Bodies.  This decision removes the uncertainty surrounding such ILUAs (and the tenures granted pursuant to them), since the trial judge's 2018 decision.

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: Libby McKillop, Senior Associate; Leonie Flynn, Senior Expertise Lawyer and Larissa Harrison, Lawyer.