Under Division 3 of Part 2 of the NTA, an ILUA is only valid if the parties to the agreement consent to all its terms, and it is registered on the Register of Indigenous Land Use Agreements .
Registration requires fulfilment of the precondition that the representative body must hold the opinion that the relevant persons authorised the creation of the ILUA, under s 203BE(5) of the NTA. The relevant persons include all persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA. This verification requirement may be fulfilled through certification by the Representative Body for the area within which the determination area of the ILUA falls, a function conferred by s 203BE(1)(b) of the NTA.
In February 2017, the NLC varied an ILUA relating to an area of the land and waters of the Cox Peninsula in the Northern Territory. This ILUA was thereafter known as the Kenbi ILUA.
The application for the registration of the Kenbi ILUA was signed by the CEO of the NLC in March 2017, acting as a delegate of the NLC. The certificate stated “the NLC hereby certifies” the application, and that the NLC is “of the opinion” that the requirements of s 203BE(5) of the NTA were met. The CEO purported to act as a delegate of the NLC in fulfilling this role. However, the decision to issue the certificate was made by the CEO personally, and the CEO also personally formed the opinion that the requirements of the NTA had been fulfilled.
Mr Quall and Mr Fejo sought judicial review in the Federal Court, challenging the validity of the Kenbi ILUA’s certification. They argued on the basis that the certification function under s 203BE(1)(b) of the NTA is not delegable, or, if delegable, was not validly delegated in the circumstances of the Kenbi ILUA (Quall v Northern Land Council  FCA 989).
In the Federal Court, Justice Reeves held that the function was delegable, but that delegation had not been validly carried out by the NLC, as the instruments of delegation were ineffective. The instrument relied upon by the respondents was a 1996 NLC resolution, conferring a range of functions upon the executive and CEO. Reeves J found this was ineffective as an instrument of delegation because the NLC was not vested with the power to perform the certification function under the NTA at the time the resolution was made .
The NLC appealed to the Full Court of the Federal Court in Northern Land Council v Quall  FCAFC 77. In that case, Griffiths, Mortimer and White JJ held that the certification function conferred upon representative bodies such as the NLC is not capable of delegation, and that the NLC was prevented from presenting further evidence to prove the existence of effective instruments of delegation.
Griffiths and White JJ emphasised the importance of representative bodies being held accountable and maintaining transparency in their certification functions under the NTA. This serves to ensure they appropriately reflect the interests of the wider Aboriginal community. For this reason, as well as the absence of an express power of delegation in the NTA, their Honours ruled that delegation was not possible.
Following the 2019 decision of the Full Court, the NLC and CEO were granted special leave to appeal to the High Court. They argued on the basis that the Full Court erred in holding that the NLC lacked the power to delegate the certification function under s 203BE(1)(b) of the NTA.
Details of judgment:
The High Court considered two issues:
- Whether the delegation of the Representative Body’s certification function is compatible with the legislative scheme established by the NTA.
- Whether the NLC had a valid power to delegate this function to its CEO.
Whether the certification function is delegable
In consideration of the first issue, Kiefel CJ, Gageler and Keane JJ examined s 203B(3) of the NTA, which provides that a representative body must not enter into an arrangement with another person under which the person is to perform the functions of the representative body, with some exceptions such as contracts to obtain services.
The majority read this provision in light of other sections of the NTA, such as s 203BK, which empowers representative bodies to “do all things necessary or convenient” in the performance of its functions, and to “enter into arrangements and contracts to obtain services” to assist in the performance of its functions. On this basis, the majority held that ‘representative body’ within s 203B(3) of the NTA encompasses the natural persons who make up its executive and organisational structures, not just its constituent members or the representative body as an artificial person.
Their Honours held that this construction is further supported by provisions such as s 203BA(2)(c)(iii), (iv) and (v), which suggest the functions of a representative body may be performed by persons or groups within the representative body’s organisational structure , and s 203B(4)(b) requiring efficient allocation of its resources.
Accordingly, the majority held that s 203B(3) of the NTA allows representative bodies to delegate their functions to natural persons within the organisation itself, but they are prevented from delegating their functions to artificial or natural persons external to the organisation .
Contrary to the findings of the primary judge, Reeves J, the majority held that s 203BK(1) cannot be treated as an independent source of power to delegate the performance of the functions of the representative body, as it is purely an ancillary, or supplementary, power .
Whether a representative body may in fact delegate the certification function depends upon the representative body’s constituting statute. However the majority note where a function exhibits special features, its performance may be confined to the members or governing body of the representative body .
However, delegation of this function would not be inconsistent with the statutory scheme of the NTA , as the Full Court had found in Northern Land Council v Quall  FCAFC 77.
The majority noted that the Full Court’s emphasis upon the representative nature of membership of a representative body is unjustified, as representative bodies have evolved to encompass a range of eligible bodies with varied organisational structures which are not necessarily directly reflective of the Aboriginal people in that area .
The ‘opinions’ which must be formed prior to certification of an ILUA application are also questions of fact which may be overruled by the Registrar if needed, which further reduces the relevance of the representativeness of the body in performing the function . The majority also pointed out that the members of a representative body may not be well suited to making these determinations due to the potential for conflicts of interests to occur .
For these reasons, the majority hold that the certification function exhibits no special feature which might prevent it being delegated.
Whether the NLC had power to delegate the certification function
In regard to the second issue, the majority held that the certification function may be delegated through a valid power within the Aboriginal Land Rights Act 1983 (ALR Act), which established the NLC, and recognised it as a representative body in 2018 .
The majority highlighted that s 27(1) of the ALR Act permits a representative body to “do all things necessary or convenient .... in connexion with the performance of its functions” logically including functions conferred by the NTA. As such, the ALR proves no impediment to delegation of the certification function if such delegation is “necessary or convenient” in the performance of that function .
Drawing upon ss 34AB and 34A of the Acts Interpretation Act, the majority suggested that a function performed by the CEO as delegate of the NLC may be deemed to have been performed by the NLC, and the CEO’s opinion may be taken as the opinion of the NLC itself .
Accordingly, the NLC had power under s 27(1) of the ALR Act to delegate the performance of the certification function to its CEO.
The minority judgment
Justices Edelman and Nettle also found that the CEO may validly exercise the certification function on behalf of the NLC, and that the Kenbi ILUA was subsequently valid.
However, their Honours held that delegation of the function would be incompatible with both the ALR Act and the NTA, and that instead the function may be carried out by the CEO acting as an agent of the NLC, rather than through delegation in a strict sense.
The appeal was allowed.
The High Court set aside the declaration made by the Full Court that the certification function was incapable of delegation and sent the matter back to the Full Court for further consideration of the unresolved issues. This included allowing the NLC leave to submit fresh evidence to prove the existence of effective instruments of delegation.