QGC Pty Limited v Bygrave (No 2) [2010] FCA 1019

QGC Pty Limited v Bygrave (No 2) [2010] FCA 1019.

Between: QGC Pty Ltd (Applicant) and Louise Bygrave (Delegate of the Native Title Registrar); Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton, Richard Doyle and Madonna Barnes on behalf of the Iman People #2; and Queensland South Native Title Services Ltd (Respondents)

Between: Russell Tatow, Patrick Silvester, Cynthia Kemp, Eve Fesl, Troy Noble, Fred Tull, Fergus Waterton and Richard Doyle on behalf of the Iman People #2 (Cross-claimants) and Madonna Barnes (Cross-Respondent)

Judge: Reeves J.

Ms Bygrave, the Delegate of the Native Title Registrar (the Delegate) refused to give notice of an agreement between QGC Pty Ltd (QGC) and the Iman People because she did not consider that the agreement was an Indigenous Land Use Agreement (ILUA) within the meaning of s 24CD of the Native Title Act 1993 (Cth) (NTA). This was because one of the nine members of Registered Native Title Claimant (RNTC) on behalf of the Iman People #2 had not agreed to sign it.

QGC challenged the validity of the Delegate’s decision not to give notice.

The primary issue for the Court was who exactly is required to be the Indigenous party to an area ILUA under ss 24CA(1)-(2) of the NTA. Was it the collective entity that is the applicant for the determination of native title, otherwise known as the RNTC? Or was it some, or all, of the individual people who make up the RNTC?

The parties were split into two camps: QGC and the Iman People #2 RNTC group, with the exception of Ms Barnes, challenged the Registrar’s decision. The Delegate, Queensland Native Title Services Ltd, and Barnes wished to maintain the validity of the decision. The RNTC issued a cross-claim seeking orders that Barnes sign the agreement.

Judgment

Reeves J held that the Indigenous party to an ILUA is not the RNTC, as a collective entity, because it is not a legal person. Nor is it all the individuals who comprise the RNTC. Instead, the Indigenous party is correctly understood to be one or more of the people who comprise the RNTC, in their individual capacity as representatives of the native title claim group [85].

Background

QGC wanted to develop a natural gas project in the Surat Basin of southern Queensland. The area relates to the Iman People #2 registered native title claim so QGC and the Iman People set out to negotiate an agreement that would operate as an area ILUA under the NTA.

On 5 December 2009, the Iman People held a meeting to consider authorising the negotiated agreement. In attendance were the nine people whose names were collectively entered into the Native Title Register as the applicant for the Iman People #2 claim, that is, the members of the RNTC. Also in attendance were other people who claimed to hold native title in relation to the area (the native title claim group). During the meeting, the native title claim group agreed to a decision-making process under which they authorised the agreement and agreed to QGC submitting an application for its registration.

Upon receiving the application, the Delegate decided that she could not give notice of the agreement, as required by s 24CH of the NTA prior to registration. This decision led to these proceedings. The Delegate considered that the agreement was not an ILUA within the meaning of ss 24CA(1)-(2) of the NTA because one of the nine members of the RNTC, Barnes, had refused to sign it.

Details of Judgment

Issues to be decided

1. Whether the Delegate's decision is reviewable, under s 5 of Administrative Decisions (Judicial Review) Act 1997 (Cth) (AD(JR) Act), or in the alternative, whether QGC could rely on s 39 of the Judiciary Act 1903 (Cth) to challenge the validity of the decision.
2. Whether the Delegate's interpretation of s 24CD (1) of the NTA is correct.
3. Whether Barnes should be ordered to sign the QGC-Iman Agreement.

Was the Delegate's decision not to notify reviewable?

Addressing the first issue, Reeves J held that s 24CH requires the Delegate to give notice of the agreement to other specified groups who are not a party to the agreement. It does not require the Delegate to make a decision about whether to give notice. So the decision the Registrar made was not reviewable under the AD(JR) Act.

However, Reeves J agreed that QGC could challenge the validity of the decision by relying on the Federal Court’s original jurisdiction under s 39 of the Judiciary Act 1903 (Cth) [37]. Reeves J thought it appropriate to take this course because if he made an order that the Delegate give notice of the agreement, it was then likely that the Delegate would still consider that the agreement was not an ILUA and refuse to register it. QGC would then likely bring the same issue before the Court again.

The primary issue: who does s 24CD require to be the Indigenous party to an area ILUA?

At the outset, Reeves J noted that the general principles for interpreting a legislative provision required him to consider the provision’s language, context, purpose and policy. In this instance, his Honour said, it was appropriate to begin by looking at the context within which s 24 is placed [57].

Section 24CD sits within Division 3, Part 2 of the NTA. This Division, Reeves J noted, sets out the process for agreements that validate future acts, meaning land use agreements that affect native title [58].

Reeves J then looked to the Preamble and the objects of the NTA to determine the purpose of Division 3, and said,

• "the ILUA process in the Act is intended to achieve a balance between allowing future acts to be validated, so as to provide certainty for the broader Australian community, but at the same time, ensuring that those who hold, or claim to hold, native title in the land and waters affected by such future acts, agree to them being undertaken and, if they do, to obtain a corresponding benefit from so agreeing." [59]

The purpose of s 24CD: 'Native title group to be parties'

Reeves J then considered it the Court's duty to fulfil the purposes of the ILUA process and to determine what construction of s 24CD would facilitate that purpose [60]-[61].

Given that, under s 24EA, an ILUA has the radical effect of contractually binding not just the parties, but all the members of the native title claim group, the particular purpose of s 24CD must be to allow a large unincorporated group with fluctuating membership and undetermined native title rights and interests to enter into an ILUA that may operate over a long period of time [63]-[69].

Since the RNTC cannot be considered a legal person, the question becomes, what interpretation of s 24CD provides the native title claim group with a legal person or persons to act as its representative party to the ILUA [77].

The language of s 24CD

At the time of this decision, ss 24CD(1)-(2) of the NTA was:

Native title group to be parties

1. All persons in the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement.

Native title group where registered claimant or body corporate

2. If there is a registered native title claimant, or a registered native title body corporate, in relation to any of the land or waters in the area, the native title group consists of:

(a) all registered native title claimants in relation to land or waters in the area; and

(b) all registered native title bodies corporate in relation to land or waters in the area; and

(c) if, for any part (the non-claimed/determined part) of the land or waters in the area, there is neither a registered native title claimant nor a registered native title body corporate, one or more of the following:

(i) any person who claims to hold native title in relation to land or waters in the non-claimed/determined part;

(ii) any representative Aboriginal/Torres Strait Islander body for the non-claimed/determined part.

After looking at the context and purpose, Reeves J looked to the language of ss 24CD (1)-(2) and adopted the ordinary meaning of the word “all” to be “whole”. In this way, where there is more than one person or RNTC in relation to an ILUA area, the “whole, or any of, them must be parties" [79].

Reeves J then considered that the phrase “all registered native title claimants” in s 24CD(2)(a) could not mean all the individuals who make up an RNTC, any more than it could mean all the individuals in each body corporate under s 24CD(2)(b) [79].

It is not s 24CD that has the role of defining who, or what, is the RNTC for the purpose of it becoming a party to an ILUA, according to Reeves J. That is the role of s 253 [79]. Section 253 defines an RNTC as “a person or persons” whose name or names appear in the Register of Native Title Claims. So it is that Reeves J finds that “one or more (but not necessarily all) of the persons who are named in the entry on the Register may comprise the RNTC" [83].

Consequently, Reeves J decided that ss 24CD(1)-(2) require that all the RNTCs in relation to the ILUA area must become parties to the ILUA, with each RNTC becoming a party through one or more of its members in their capacity as representatives of the contracting native title group [84].

Reeves J, agreeing with QGC, also noted that an interpretation of s 24CD should avoid the result that an individual member of a RNTC may veto a native title claim group's decision to enter into an ILUA [95].

Finally, Reeves J held that s 66B, in providing for the removal or replacement of an RNTC member at an authorisation meeting under s 551A, does not offer any solution. This is, his Honour stated, because the function of an authorised RNTC is limited to pursuing a claim and, in relation to an authorised ILUA, does not extend beyond its members being named as representative parties [117]-[118].

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