Northern Land Council v Quall [2019] FCAFC 77

Northern Land Council v Quall [2019] FCAFC 77.

Judges: Griffiths and White JJ, Mortimer J agreeing.

Between:

Northern Land Council (NLC) and Joe Morrison as Chief Executive Officer (CEO) of the NLC (Appellants and Cross-Respondents) and Kevin Lance Quall and Eric Fejo (Respondents and Cross-Appellants). The Northern Territory of Australia was granted leave to intervene.

Judgment:

This case was decided by the Full Court of the Federal Court of Australia on appeal from Quall v Northern Land Council [2018] FCA 989.

The Court held that the Native Title Act 1993 (Cth) (NTA) does not permit a representative body to delegate the certifying of an application for the registration of an Indigenous Land Use Agreement (ILUA), under s 203BE(1)(b), to another body or person.

More specifically, the NLC, as a Land Council formed under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act), has a large Council membership consisting of traditional owners from across 54 communities. Unlike the ALR Act, the NTA has no express power of delegation and so requires the NLC, through its full Council, to certify that it has formed the opinion that all the native title holders which it represents have been identified and have certified the making of the ILUA according to s 203BE(5) of the NTA.

The National Native Title Tribunal notes that it has a small number of ILUAs lodged for registration that may be impacted by this decision and is considering the complex legal and procedural issues arising from it (24 May 2019).

Background:

The Northern Land Council (NLC) was established as a Land Council under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act). It has 78 members that represent 54 communities (known as the Full Council). Those members, in accordance with the requirements of the ALR Act, are Aboriginal people living in the area of the NLC's responsibility or traditional Aboriginal owners of Aboriginal land in that area. The NLC is also a representative body for the purposes of Part 11 of the NT Act.

On 1 October 1996, the NLC's Full Council resolved to delegate its functions under the NT Act, as originally enacted, to its Chief Executive Officer (CEO). In 1998 the NTA was amended so that a representative body could certify that, for the purpose of registration by the Native Title Registrar, native title claims and ILUAs had been properly authorised by a claim group.

In 2016, the NLC and the Northern Territory of Australia made an ILUA concerning the Cox Peninsula near Darwin (the Kenbi ILUA). On 13 March 2017, the CEO of the NLC, Mr Morrison, purported to certify the application for registration of the Kenbi ILUA to the Register of ILUAs.

Litigation History:

In Quall v Northern Land Council [2018] FCA 989, the primary Judge decided that s 203BK(1) of the NTA was broad enough to give a representative body power to delegate its function of certifying an application for the registration of an ILUA to a member of its staff. Section 203BK(1) states that "a representative body has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions".

However, the primary Judge found the delegation invalid for another reason: deciding that because the certification function was not introduced in the NTA until its amendment in 1998, the NLC's Full Council could not validly resolve in 1996 to delegate a function that it did not have (see Quall v Northern Land Council [2018] FCA 989, 34).

Full Court Decision:

The appeal was dismissed and the cross-appeal allowed.

The sole issue raised by the cross-appeal was whether, on its proper construction, s 203BK of the NTA gave the NLC power to delegate its function of certifying an ILUA under s 203BE(1)(b). The Full Court decided that it did not.

Griffiths and White JJ summarised their reasons as follows:

• the expression "representative bodies" in Part 11 of the NTA suggests that a representative body has a significant role in representing Aboriginal people who hold, or may hold, native title in its area of responsibility [129];
• unlike the ALR Act, the NTA does not require the members of a representative body's governing council/board to be Aboriginal people living in its area of responsibility. A representative body then will not necessarily have the aptitude that a Land Council does for fulfilling its representative role [130];
• despite representative bodies being constituted differently to Land Councils, the NTA is designed to ensure that a representative body satisfactorily represents the native title rights and interests of Aboriginal people in its area. For example, the application process for the registration of an ILUA under s 203BE(1) of the NTA requires a representative body to provide a statement briefly outlining why, in its opinion, it has reasonably identified all possible native title holders in the area, consulted with them, and ensured that they have authorised the application. This process is designed to minimise the danger of representative bodies focussing on sectional interests instead of the wider Aboriginal community [132];
• the certification functions in s 203BE(1)(b) of the NTA should be viewed as intending to promote the accountability and transparency of representative bodies and to protect the rights and interests of native title holders and potential native title holders [134];
• a representative body carrying out the application's certification process relieves the Native Title Registrar from having to independently assess whether all possible native title holders were reasonably identified and authorised the agreement [131] - [133];
• the absence of an express power of delegation, in contrast with the ALR Act, supports the view that a representative body's functions are to be performed by the representative body itself [135];
• the heading of s 203B(3) of the NTA, "Representative bodies to perform functions", clearly intends that representative bodies are to perform their functions themselves [102], [135];
• by stating that representative bodies are not to enter into "an arrangement" with another person to perform its functions, the text of s 203B(3) is consistent with its heading [134]. Also, the word "arrangement" suggests a bilateral agreement between a representative body and another person, in contrast to a delegation which is a unilateral act. This section also includes three exceptions to the ban on entering into an "arrangement". These exceptions refer to various ways a representative body may obtain services to assist it in carrying out its functions, yet obtaining assistance to fulfill its own functions cannot be said to describe a delegation [103] - [104]; and
• in relation to a "necessary or convenient" power under s 203BK of the NTA, the leading authority is the High Court's decision in Shanahan v Scott (1957) 96 CLR 245 which holds that such powers are strictly ancillary [106]. Ancillary or supplementary powers are not a freestanding source of power and cannot be used to imply a new power, such as a power of delegation [106].

A representative body can obtain assistance in the performance of its certification function under s 203BE(1)(b) of the NTA, but it cannot delegate or outsource the actual performance. The representative body's opinion (not someone else's) is what counts in relation to certifying whether all native title holders, and potential native title holders, have been reasonably identified, consulted with, and have given their authorisation for an application for the registration of an ILUA.

Note: On 15 November 2019 the NLC was granted special leave to appeal the Full Court's finding that a representative body has no power to delegate its certification function to the High Court.

On 7 October 2020, the High Court on appeal from this decision of the Full Court of the Federal Court held that the CEO of the NLC acted as agent on behalf of the NLC, and not as a delegate, and that the certification was therefore valid (Northern Land Council and Anor. v Quall and Anor 2020 HCA 33).

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