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McGlade v South West Aboriginal Land and Sea Corporation (No 2) [2019] FCAFC 238

Category: Case Law
Date To: 19 December 2019
Sub Category:Case Law
Place:

South West Region

State/Country:Western Australia, Australia
Subject Matter:Native Title
URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2019/238.html
Summary Information:

McGlade v South West Aboriginal Land and Sea Council (No 2) [2019] FCAFC 238

Between: Mingli Wanjurri McGlade (Formerly Wanjurri-Nungala) (First Applicant); Naomi Gail Smith (Second Applicant); and Fabian Yarran (Third Applicant); AND South West Aboriginal Land and Sea Council Aboriginal Corporation (First Respondent), State of Western Australia (sued on its own behalf and representing the government parties to the Wagyl Kaip and Southern Noongar Indigenous Land Use Agreement) (Second Respondent), the Native Title Registrar (Third Respondent), and Glen Cobung (sued on his own behalf and as representing the individuals named as 'representative parties' who are parties to the Wagyl Kaip and Southern Noongar Indigenous Land Use Agreement) (Fourth Respondent); and others listed in the schedule to the judgment.

Judges: Allsop, McKerracher and Mortimer JJ.

Judgment

Ten separate applications were heard by the Full Court of the Federal Court concerning the registration of the six Indigenous Land Use Agreements (ILUAs) that comprise the South West Native Title Settlement Agreement (Noongar Settlement). The registration of these six ILUAs will bring about the final settlement of the Noongar People's claims over their traditional land and waters.

The applicants, Noongar People themselves, sought judicial review of the Native Title Registrar's decisions to register the six ILUAs.

Specifically, the applicants argued that the ILUAs were not properly authorised in accordance with the Native Title Act 1993 (Cth) (NTA), asserting that the Registrar could not reasonably have found that all of the people identified as members of the native title claim group in the Noongar Settlement area had authorised the making of each of the ILUAs [10].

The Court rejected the applications, upholding the ILUAs' registration, and dismissed the claims with costs.

Consequences

The applicants applied to the High Court for special leave to appeal the decision, and on 26 November 2020 the High Court rejected the applications.

On 27 January 2021, with all avenues of legal challenge exhausted, the six ILUAS became conclusively registered.

On 25 February 2021, the Noongar Settlement commenced and set in motion certain provisions of the ILUAs such as the appointment of the initial Noongar Boodja Trustee, the first State payment into the Noongar Boodja Trust, and the resolution of native title in the Settlement area (Western Australian Government, South West Aboriginal Land and Sea Council).

Detailed Information:

Background

The six ILUAs in dispute relate to about 200,000 sq kms in the south-west of Western Australia. Since the 1990s, this area has been the subject of the Noongar People's numerous native title claims, none of which have led to a successful determination of native title.

In 2009, the State of Western Australia and representatives of the Noongar People began negotiations towards settling all Noongar native title claims. The agreement they formed (the Noongar Settlement) affects between 30,000 and 40,000 Noongar People, many of whom live in Perth.

In 2015, the South West Land and Sea Council (SWALSC) organised and held formal meetings for native title holders to authorise an ILUA in relation to each of the six distinct native title claim areas that comprise the Noongar Settlement area. At each of these meetings, eligible Noongar People in the area authorised the Noongar Settlement and the making of their respective ILUA. The registration of all six ILUAs will implement the Noongar Settlement and finalises all Noongar native title claims.

Details of the Judgment

The applications

The applications disputing the validity of the registrations fell into two groups. The McGlade application was treated as the lead application for the first group, and the MacKay application as lead for the second.

The Mackay group raised one further challenge against the validity of the ILUAS. 

The McGlade arguments

Section 203BE(5) of the NTA requires SWALSC, when applying to register an ILUA, to have certified that it was of the opinion that it had made all reasonable efforts to ensure that all the persons who hold or may hold native title in the relevant area have been identified and have authorised the ILUA.

Section 24CK of the NTA then requires the Registrar to take into account any objections to the registration, and to only register it if satisfied that the objections do not show that SWALSC did not meet its obligations under s 203BE(5).

The McGlade applicants argued that the Registrar could not have found, as she did, that the ILUAs were authorised by all of the identified native title holders in each of the six claim areas [10]. In summary, the applicants asserted that the Registrar:

  1. had not considered that SWALSC had misled and precluded some native title holders from voting for or against the ILUAs by notifying the Noongar People that the only way to authorise the ILUAs was at a meeting in person 'on country' some 250 kms from Perth, where many native title holders resided; and
  2. had not considered that SWALSC did not provide incarcerated native title holders with an opportunity to vote in the authorisation process, despite knowing of their incarceration.  

The Decision

On the first point, the Court held that the Registrar was not required to decide whether SWALSC had in fact misled the Noongar people by organising the authorisation process to be held on country [159]-[160]. It was open to the Registrar to conclude, from SWALSC's submissions, that SWALSC believed the appropriate course of action to achieve the native title group's proper authorising of the ILUAS was for people to meet in person and on country within the relevant claim area so that they could discuss which decision-making and authorisation process they would adopt with the assistance of an independent facilitator and an independent legal counsel [161]-[162].

On the second point, the Court held that, given the applicants had not shown what more could have been done to facilitate greater participation for native title holders who were incarcerated, the Registrar was open to conclude, as she did, that she was satisfied SWALSC had made reasonable efforts in the circumstances [187]. These efforts involved conducting notification campaigns and information sessions within penal facilities, as well as ensuring that incarcerated native title holders had opportunities to discuss the settlement with family members so that they could be represented by family at the authorisation meetings [177], [185].

It was also open to the Registrar to determine, on the information provided to her, that the extensive notification process that SWALSC provided implied that those who did not attend the meetings had been content to abide by the decisions made [198]-[200]. The Court reasoned that the early and extensive notification period for the meetings and the provision of free bus travel with lunch made the Registrar's decision entirely reasonable [200].

The Court also noted that attendance numbers across the meetings was not substantially different: 333 people attended the meeting conducted in Perth for the Whadjuk People ILUA, whereas approximately 250 kms from Perth, 447 people attended the meeting for the Wagyl Kaip and Southern Noongar ILUA [201].

The Court went on to note that not every native title holder will wish to attend a meeting or vote, and that "this factor needs to be built into" the process for enabling a reasonable opportunity for people to participate in the authorisation process, as well as the Registrar's assessment of whether there has been a reasonable opportunity for participation [203].

The MacKay argument

The MacKay applicant group raised an additional challenge, asserting that the Registrar had incorrectly concluded that a distinct subgroup of all Noongar People could authorise an ILUA [11]. This position was based on SWALSC's notice for the meetings purportedly limiting invitations to the descendants of particular apical ancestors relevant to the separate areas together with "those members of the single Noongar community who asserted native title rights and interests in relation to the area". The MacKay applicants argued that it was clear that not all Noongar native title holders were permitted to attend the meetings [212]-[221].

Central to the MacKay argument was Wilcox J's finding in Bodney v Bennell [2008] FCAFC 63 (Bennell) that the Noongar People, at the time of European settlement in 1829, were a single society whose native title rights and interests over the whole of the Noongar Settlement Area were common or group rights.

SWALSC's submissions to the Registrar also relied on Bennell in saying that Wilcox J's finding did not mean that all descendants of the single Noongar society hold native title in relation to the whole of the Settlement Area. Expert evidence presented in Bennell had sought to show that prior to European settlement, bounded areas of land were considered to be the property of families and individuals, and that this view was maintained by Noongar society today, with the possibility of an individual having rights to more than one country [209], [215].

The Decision

The decision in Bennell and the question of who were the right people for country did not affect the Court's judgment given that determining this question was not the Registrar's task. Her task was to decide whether any of the objections to the registration of the ILUAs showed that SWALSC had not made all reasonable efforts to identify the native title holders in each of the ILUA areas and to ensure that they had authorised the ILUAs [238].

Ultimately, the Court decided that the applicants were mistaken in saying that the notices precluded all Noongar People from attending the meetings.

While the notices did identify a native title group as the descendants of listed apical ancestors, they also included an express statement that all people who assert native title rights and interests over the ILUA area were invited to attend. The notices also included an explanation that the description of the native title claim group for the Settlement Area, as described in Bennell, was not included due to lack of space on the notice [221].

The Quall challenge

Shortly before this hearing, the Full Court handed down its decision in Northern Land Council v Quall 2019 FCAFC 77 (Quall). In Quall, it was held that a representative body's certification function under s 203BE(1) of the NTA was non-delegable. In light of this, the applicants here amended their claims [240]. 

The Court, however, held that unlike the Northern Land Council (NLC), which was formed under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act), SWALSC was formed and registered under the Corporations (Aboriginal Torres Strait Islander) Act 2006 (Cth) (CATSI Act). As such, and unlike the NLC, SWALSC conducts its business through its directors, authorised employees and agents so that anything performed by, for example, its CEO is an act of SWALSC itself [324]-[331].

The Court importantly held that "[g]iven the range of entities that may become representative bodies [under the NTA], there is no requirement for a universal rule prohibiting... delegating the certificaton function" and the scope of "the CATSI Act should not be constrained by reference to the terms of the ALR Act, which does not apply it" [337].

The Court further noted that SWALSC's records showed that its board members had extensive involvement in the negotiation of the ILUAS and it was reasonable to conclude that the directors would not have passed resolutions to authorise two consecutive CEOs "to sign the deeds for and on behalf of SWALSC", and to certify the applications for registration, had they not formed the opinion that s 203BE(5) of the NTA had been satisfied for each ILUA [338]-[343].

Accordingly, none of the challenges raised by the applicants succeeded.

The Court expressed considerable appreciation to the counsel and solicitors acting pro bono for the Mackay applicants.

Outcomes:

None of the grounds raised by the applicants succeeded and costs followed the event, that is, they were ordered to be paid by the unsuccessful parties.


Related Entries

Agreement
  • Gnaala Karla Booja Indigenous Land Use Agreement (ILUA)
  • Yued Indigenous Land Use Agreement (ILUA)
  • Ballardong People Land Use Agreement (ILUA)
  • South West Boojarah #2 Indigenous Land Use Agreement (ILUA)
  • Wagyl Kaip & Southern Noongar Indigenous Land Use Agreement (ILUA)
  • Whadjuk People Indigenous Land Use Agreement (ILUA)
  • Organisation
  • South West Aboriginal Land and Sea Council - Respondent
  • State of Western Australia - Respondent
  • Northern Land Council
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth)
  • Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
  • People
  • Mingli Wanjurri McGlade (formerly Wanjurri-Nungala) - Applicant
  • Naomi Gail Smith - Applicant
  • Fabian Yarran - Applicant
  • Native Title Registrar - Respondent
  • Glen Cobung - Respondent
  • Case Law
  • Bodney v Bennell [2008] FCAFC 63
  • Northern Land Council v Quall [2019] FCAFC 77

  • References

    Publication
    Western Australian Government (22 February 2021) Commencement of the Settlement and reolution of native title

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