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01 May 2012

Bigambul Bygrave: uncertainty in the law of authorisation of Indigenous land use agreements

by Mark Geritz, Tosin Aro

The Bigambul Bygrave decision would appear to present a major problem for project proponents seeking native title certainty for their projects in areas with no registered native title claim.

A recent decision of Reeves J of the Federal Court (QGC Pty Ltd v Bygrave (2011) 199 FCR 94; [2011] FCA 1457 (Bigambul Bygrave case)) creates more questions than it answers for proponents seeking to use Indigenous Land Use Agreements (ILUAs) to provide native title certainty for their projects.[1]

The relevance of future acts to the development of major projects

All project proponents need to consider if the "future act" provisions of the Native Title Act 1993 (Cth) (NTA) apply to their projects.

Section 233 of the NTA defines a "future act", in relation to land or waters, to include an "act" (such as the grant of a statutory licence, permit or authority[2]) that takes place after 1 January 1994 and affects native title in relation to the land or waters. A future act will be valid if covered by (or done in accordance with) certain provisions of Pt 2, Div 3 of the NTA, and invalid if not. In other words, a future act will be invalid to the extent it affects native title unless a provision of the NTA provides otherwise.[3]

At its simplest, a future act will affect native title rights and interests if it either extinguishes native title rights and interests, or if it would create interests or confer entitlements that are otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.[4] An example could therefore be the grant of a mining or petroleum tenement over land or waters where native title has not been extinguished (Non-exclusive Land).

Accordingly, whenever there is a future act proposed to be done for the purposes of a major project, in relation to land or waters covered by that project, the proponent of that project will be interested to ensure that such future act is done consistently with a provision of Pt 2, Div 3 of the NTA. The consequence of not doing so would be that the relevant statutory approval is invalid to the extent it affects native title.

As an aside, we note that the Court of Appeal[5] has held that, for an act to affect native title, it must first be established that there is native title to be affected. Following this reasoning, the Court held that:

  • it would be insufficient, for the purposes of categorising an act as a future act, simply to contend that the act "might" affect native title; and
  • for as long as native title rights and interests in relation to land or waters remain to be determined, or their existence cannot otherwise be established, it would not be possible to know whether or not in fact a future act done in relation to such land or waters "would" affect native title.[6]

In our experience, State, Territory and Commonwealth Governments generally adopt the conservative view that the grant of project approvals over Non-exclusive Land will amount to future acts. Project proponents routinely are advised also to proceed on this basis. The above authority, however, would suggest that this conservatism is misplaced given how difficult it will frequently be to show that such acts, notwithstanding that they may have been done in relation to Non-exclusive Land, will affect "established" native title rights and interests.

Be that as it may, in order to minimise the risk of future acts related to their projects inadvertently being done invalidly, we would suggest that project proponents continue to proceed on the basis that, where statutory approvals required for their projects will relate to Non-exclusive Land, they should seek to facilitate the grant of the approvals in accordance with the procedures prescribed by appropriate provisions of Pt 2, Div 3 of the NTA.

ILUAs and the development of major projects

There is an alternative mechanism by which a future act that is required to be done in relation to a project can be considered to have been done validly for native title purposes.

The combined effect of subsections 24EB(1) and (2) of the NTA is that a future act will be validly undertaken for native title purposes if the parties to an Indigenous Land Use Agreement (ILUA) consent to the doing of the act (or to the doing of a class of act in which the act is included), provided that, when the act is done, the details of the ILUA are entered in the Register of Indigenous Land Use Agreements.[7]

In such circumstances, the future act will be valid to the extent that it affects native title in relation to land or waters in the area covered by the ILUA.

ILUAs are therefore a key tool by which project proponents can achieve certainty that the native title impacts of their projects have been appropriately managed.

In this regard, because the parties to a registered ILUA can consent in that ILUA to the doing of an entire class of future act (and, in fact, to the doing of a limitless number of classes of future acts), ILUAs are particularly useful for major projects requiring the grant of multiple statutory approvals and therefore, potentially, the doing of multiple future acts.

Having said that, the utility of ILUAs is not limited to their role in enabling future acts to be done validly. They are also helpful where permissions are required with respect to native title rights and interests, as is the case under the pipeline licence and petroleum facility licence provisions of the Petroleum and Gas (Production and Safety) Act 2004 (Qld).[8] A registered ILUA can assist in these circumstances by providing a mechanism by which a written permission that is binding on the native title holders for the relevant area (and, in the absence of an approved determination of native title, on those who claim to hold the native title rights and interests in relation to that area) can be conveyed.[9]

The key point is that, irrespective of the use to which an ILUA is being put, the ILUA will only become "operable" upon becoming registered. It is relevant to explore the reason for this requirement.

In Reeves J's earlier decision in QGC Pty Ltd v Bygrave (No 2) (2010) 117 ALD 482; [2010] FCA 1019 (Iman Bygrave Case), his Honour noted in particular the fact that, upon registration, an ILUA will bind every person who holds (or may hold) native title in the area of the ILUA, even those who are not expressly made parties to the ILUA and even people not born at the time the ILUA was registered, as if they were listed as parties to the ILUA. Given this premise, his Honour found that an ILUA was properly to be understood as an agreement made with all those actual and/or potential native title holders.

It is submitted, then, that the reason for the registration requirement emerges from the peculiarity of the ILUA as a contract between, for present purposes, a project proponent and (as was noted repeatedly in the Iman Bygrave case) a large unincorporated group of people, with membership numbers that fluctuate every time there is a birth or death in the group, and with diverse rights and interests, some or all of which may not in fact have been determined.

In essence, registration provides a mechanism by which an ILUA can be said to be made with, and to bind, an unincorporated group with a large and fluctuating membership. In our submission, the key to an ILUA being able to achieve this effect is "authorisation"; that is, while the ILUA may have been (and in fact is required to have been)[10] made with particular legal persons acting as representative parties for the wider group, it must also have been "authorised" by the wider group (or at least by a representative sample of the wider group).

Authorisation – a fundamental requirement for any ILUA

We have already noted that an ILUA will only operate to validate future acts, the doing of which the parties consent to, and will only bind the native title holders (actual and potential) for the area of the ILUA, if (and while) details of the ILUA are entered in the Register.

However, it is clear that the Native Title Registrar (Registrar)[11] will only have power to register an ILUA if the Registrar is satisfied that the ILUA was properly authorised.[12] In this regard, an applicant to the Registrar for registration of an ILUA is usually required to persuade the Registrar that the ILUA has been properly authorised.

It is true that, as an alternative to the applicant for registration including in the application reasons why the Registrar should be satisfied that the ILUA was properly authorised, the applicant can endeavour to have the application "certified" by the representative Aboriginal/Torres Strait Islander body (Representative Body) for the area of the ILUA in performing their functions under section 203BE(1)(b) of the NTA. However, section 203BE(5) of the NTA makes it clear that a Representative Body may only certify a registration application if it is of the opinion that the ILUA has been properly authorised.

Accordingly, in all cases, proper authorisation of an ILUA is an essential prerequisite to registration. The question that arises, therefore, is what is contemplated by the phrase "properly authorised".

Section 24CG(3)(b) provides that an application for registration of an ILUA must include a statement to the effect that the following requirements (being the requirements of a proper authorisation) have been met:

  • all reasonable efforts have been made (including by consulting all Representative Bodies for the area of the ILUA) to ensure that all persons who hold or may hold native title in relation to the land or waters in the area covered by the ILUA have been identified (we will refer to this element of a proper authorisation as the "Identification Step"); and
  • all of the persons so identified have authorised the making of the ILUA (we will refer to this element of a proper authorisation as the "Authorisation Step").

(As we have already noted, a Representative Body cannot certify an ILUA registration application unless it is of the opinion that both of the Identification Step and the Authorisation Step have been met.)

The Identification Step

In our experience, proponents and other parties to an ILUA will often seek the Identification Step by (in addition to consulting with the Representative Body and documenting the results of such consultation) some or all of publicly advertising the intention to commence negotiations for the ILUA, consulting with the National Native Title Tribunal (NNTT) and making other reasonable inquiries – the objective of such inquiries being to identify all persons who hold or may hold native title in relation to the ILUA area.

The inquiry will be straightforward in relation to an area for which an approved determination of native title has been made and the native title holders can therefore be identified with some confidence. In relation to all other areas, it seems clear from both the NTA and the cases that the following are the people who "may hold native title" in relation to the area:

  • members of the native title claim groups for all registered native title claims that overlap with the area of the ILUA (we will refer to these people as being "Registered Claimants"); and
  • people who otherwise assert native title rights and interests in respect of any part of the ILUA area (we will refer to these people as being "Other Claimants").

However, the cases have also made it clear that the only people who will qualify as Other Claimants (and therefore whom a proponent will be required to identify in the course of carrying out the Identification Step) are those people who not only assert native title rights and interests in respect of the ILUA area, but who can also make out a prima facie case that they do hold native title in the ILUA area. In other words, "a person should not necessarily be regarded as someone who may hold native title simply because they say they do so hold native title".[13]

The ILUA process would then generally involve the project proponent conducting negotiations for the ILUA with representatives of all of the Registered Claimants and Other Claimants for the ILUA area (Identified Native Title People) that were identified during the Identification Step.

Section 24CD of the NTA requires all people in the "native title group" in relation to the area of an ILUA to be parties to that ILUA. The native title group for an ILUA area will comprise all registered native title claimants and registered native title bodies corporate for the ILUA area, should any exist for that area. If there are no registered native title claimants or bodies corporate for the ILUA area, the native title group will consist of one or more of any Representative Body for the area or any person who claims to hold native title in relation to (all or part of) the area. That said, even if there are registered native title claimants or bodies corporate for the ILUA area, any Representative Body for the area and any other person who claims to hold native title in relation to (all or part of) the area can also be parties to the agreement.

If the above are the people who must be (and who may be) parties to an ILUA,[14] then an important aspect of the Identification Step for any proponent will be to work out who among these people (or their nominees) will be the appropriate people with whom to negotiate, and agree in principle, the terms of the ILUA (on behalf of, as the case may be, the native title holders, all other members of their native title claim group or all other members of their kin who claim to hold native title in the ILUA area).

The Authorisation Step

After an in-principle agreement as to the terms of the ILUA is reached with the negotiation representatives, the next step would be to seek the "authorisation" of the ILUA by the Identified Native Title People themselves. The reason is the requirement, as it is framed in both sections 24CG(3)(b)(ii) and 203BE(5) of the NTA, to ensure that all of the persons identified during the Identification Step have authorised the making of the ILUA.

Usually, such authorisation would be sought at one or more public meetings of the Identified Native Title People, with such meetings generally being convened through public advertising (and written notification, where contact details of members of the Identified Native Title People are known) to try to ensure attendance by as many members of the Identified Native Title People as practicable.

As previously noted, following authorisation, an application (whether or not certified by the Representative Body) could then be made to the Registrar for the ILUA to be registered. Once registered, the ILUA would become binding on all native title holders generally and operate to validate any future acts for the project.

Before we proceed, we should note that "authorise", in relation to the making of ILUAs, is defined in section 253 of the NTA to have the meaning given by section 251A of the NTA. Under section 251A of the NTA, people only "authorise" the making of an ILUA if they do so in one of two ways, being:

  • a traditional decision-making process binding on the people who hold or may hold "the common or group rights comprising the native title" in the ILUA area; or
  • a decision-making process agreed to and adopted by the people who hold or may hold "the common or group rights comprising the native title" in the ILUA area.

The old order

We would submit that, until the 16 December 2011 decision of Reeves J in the Bigambul Bygrave Case, it was commonly accepted that, where the Identified Native Title People comprised members of more than one distinct group each of which claimed to hold native title in an ILUA area, the members of all such groups would have to authorise the ILUA, and would have to do so separately.[15] The case most commonly cited in support of this principle was Kemp v Native Title Registrar (2006) 153 FCR 38; [2006] FCA 939.

In Kemp, Branson J set aside the registration of an ILUA on the grounds that it had not been properly authorised. There, a Dr Davis-Hurst had lodged a native title determination application on behalf of the Kattang People. Mr Kemp, who purported to be a descendant of the Pirripaayi People, had been joined to the proceedings as a respondent and had continually challenged the basis for the claim of the Kattang People. At the relevant authorisation meeting, a majority of the people present (these included Dr Davis-Hurst and a number of the Kattang People and also Mr Kemp for at least part of the meeting), voted in favour of authorising the ILUA. A delegate of the Registrar decided to register the ILUA, notwithstanding Mr Kemp's objection to that registration.

Justice Branson concluded that section 251A of the NTA does not provide a means by which a single authorising decision can be obtained that is binding on two or more separate groups with competing claims to hold native title in the ILUA area. According to her Honour:

"[t]his can be seen from the reference in paragraph (a) [of s 251A of the NTA] to a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind." (at [41])

Her Honour found it difficult to imagine a scenario in which separate groups with conflicting claims to the native title in the area could be bound to adopt a single such traditional decision-making process. To the contrary, her Honour considered that the words in section 24CG(3)(b)(i) of the NTA should be construed literally, with the result that, where two competing groups each claim to hold the common or group rights comprising the native title in an ILUA area:

  • the people in both groups are relevant for the purposes of section 24CG(3)(b)(i); and
  • as a result, members of each of the groups will then have to authorise the ILUA in accordance with section 251A.

It is worth noting an important qualification to the reasoning in Kemp. In Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150; [2008] FCA 1469, Logan J considered an application for judicial review of a decision by a delegate of the Registrar to register an ILUA that had been agreed in connection with the aborted Traveston Crossing Dam project. The grounds of review were premised, in part, on a claim that the two groups identified as potential holders of native title in the ILUA area (the Gubbi Gubbi People and the Kabi Kabi People) were separate clans or tribal groups and that, as a result, the members of each group should have been given a separate opportunity to consider whether or not to authorise the making of the ILUA.

While there was conflicting evidence on this issue, the Registrar's delegate reached the conclusion on the available evidence that the Gubbi Gubbi People and the Kabi Kabi People were not separate groups and therefore separate authorisation was not a prerequisite to registration of the ILUA. His Honour concluded that the delegate had sufficient evidence so to conclude. In effect, his Honour concurred with the delegate's assessment of the evidence as showing that both the Gubbi Gubbi People and the Kabi Kabi People were part of the same wider group of people with a claim to hold native title in the ILUA area (in fact, the evidence was held to support a finding that "Kabi Kabi, Gubbi Gubbi and other variant spellings were ways of naming one broader group of related persons who, together, assert native title interests in relation to the project area") (at [54] and [63]).

Importantly, Logan J pointedly declined to overturn Branson J's decision in Kemp, instead finding the latter decision to be distinguishable from the facts in Fesl (at [63] and [81]).

And now?

As noted above, before the decision in the Bigambul Bygrave case, the process adopted by a project proponent in seeking to implement the Authorisation Step would typically involve, at a minimum:

  • issuing public notices, in state and regional newspapers and in Aboriginal special interest publications, advertising one or more authorisation meetings to be attended by:
    - individual members of all Registered Claimants identified in the Identification Step;
    - all people who identify as members of all Other Claimants identified in the Identification Step and involved in negotiations; and
    - any other people who claim to hold native title in the area (and can make out a prima facie case in this regard) but who had not previously been identified;
  • also sending written notices about the authorisation meeting to all such people where contact details are known (whether by post, email or even social media); and
  • ultimately, asking the people in attendance at the authorisation meeting or meetings to authorise the ILUA (and, where the people in attendance are members of two or more distinct groups with conflicting claims to the area, asking each group to do so separately).

In the Bigambul Bygrave case, Reeves J (notwithstanding that his Honour also declined to overrule Kemp) interpreted the requirements of the Authorisation Step in a fundamentally different way.

His Honour found that the parties to an ILUA are still required, during the Identification Step, to take reasonable efforts to identify all people who hold or may hold native title in the ILUA area (in other words, all Identified Native Title People). However, his Honour appears to have introduced a different test in this respect.

We have previously observed that, in Murray v Registrar of the Native Title Tribunal, Marshall J found that the people whom a project proponent is required to identify during the Identification Step are the people who hold native title in the ILUA area and the people who both claim to do so and can make out a prima facie case in support of that claim.

In the Bigambul Bygrave case, however, Reeves J held (at [100]-[101]) that the required task during the Identification Step is to make reasonable efforts to identify:

  • all determined native title holders for the ILUA area;
  • the native title claim groups for all registered and unregistered native title determination applications covering the ILUA area;
  • all people with "informal claims" to the ILUA area (an "informal claim" could be a claim as tenuous as one made "by a person attending an authorisation meeting in response to a notice of that meeting and making a claim at that meeting to hold native title in the area"); and
  • all people with a "characteristic" from which it is reasonable to conclude that they hold native title in the ILUA area (his Honour found that "[s]uch a characteristic may include membership of a particular Aboriginal family that was widely accepted by the local community to hold native title in the area, or being a long term resident of a particular area").

His Honour based his formulation of the identification test on an expansive and inclusive construction of section 24CG(3)(b)(i) of the NTA.

Clearly, the people whom Reeves J found it is necessary to identify will include those who hold native title in the ILUA area and who both claim to do so and can make out a prima facie case in support of that claim (ie. the classes prescribed by Marshall J in Murray). However, under Reeves J's formulation in the Bigambul Bygrave case, a proponent will now be required to identify potentially a much broader range of people.

That said, it is difficult to discern from Reeves J's most recent decision the reasons for identifying most of these additional people (for that matter, it is similarly unclear why a proponent would go to the trouble of identifying any Other Claimants for the ILUA area, particularly where there are also Registered Claimants for that area).

This is because his Honour held that the Authorisation Step did not require (and in fact did not entitle) all of the people identified during the Identification Step to authorise the making of the ILUA (at [121]-[122 ) (notwithstanding the apparently unambiguous use of the word "all" in section 24CG(3)(b)(ii) of the NTA).

Common or group rights

To understand his Honour's conclusion, one has to consider what it is that section 24CG(3)(b)(ii) of the NTA requires all of the people identified during the Identification Step to do. The answer, of course, is to "authorise" the making of the ILUA.

However, as we have previously noted, "authorise" is a term with a specific definition for the purposes of the NTA. Consistently with this definition, when people authorise the making of an ILUA, they must do so in accordance with s 251A of the NTA. Therefore, so reasoned his Honour, the reference in section 24CG(3)(b)(ii) of the NTA to "authorising" the making of an ILUA can only mean authorising within the meaning of section 251A of the NTA.

As previously noted, under section 251A of the NTA, people only "authorise" the making of an ILUA if they proceed in one of two ways, being:

  • a traditional decision-making process binding on the people who hold or may hold the "common or group rights comprising the native title" in the ILUA area; or
  • a decision-making process agreed to and adopted by the people who hold or may hold the "common or group rights comprising the native title" in the ILUA area.

His Honour concluded, based on these definitional considerations, that the only people competent to authorise an ILUA were therefore the people who hold or may hold "the common or group rights comprising the native title" in the ILUA area. These people (the "Authorising Group") are, in effect, a subset of the wider group of people who "hold or may hold native title" in the area (the "Identified Group") and, according to his Honour, "critically, the [Authorising Group] does the authorising of the [ILUA] for the [Identified Group]" (especially at [91]-[92]).

As a preliminary matter, and with respect, we would take issue with his Honour's construction of section 251A. In our view, that provision (on its face) requires "persons holding native title" in the ILUA area (and we would equate that phrase with the Identified Group) to authorise the ILUA in accordance with a traditional decision-making process binding on, or a process agreed and adopted by, the Authorising Group. We do not consider that the text of section 251A requires the authorising itself to be done by the Authorising Group.

His Honour then went on to find that the Authorising Group, whom he had described as the people who hold or may hold "the common or group rights comprising the native title" in the ILUA area, is properly to be understood (in a confined and exclusive way) as consisting (presumably in addition to any determined native title holders for the ILUA area) of the group (or groups) of Aboriginal people who:

"have demonstrated they may hold the group rights comprising the specific set of native title rights concerned, by filing a native title determination application under Pt 3 of the [NTA] and having that application duly registered under Pt 7 of the [NTA]." (especially at [121].)

His Honour based this conclusion, in large part, on the decision of the Full Federal Court in Commonwealth of Australia v Clifton (2007) 245 ALR 1; [2007] FCAFC 190. That case required their Honours to consider the question of whether the Federal Court could make a determination of native title in favour of a person who has not made a native title determination application under s 61 of the Act in relation to the area in question, but who is a respondent to such an application brought on behalf of a claimant group of which he is not a member (at [1]). The question was answered in the negative.

Provided that the determination is that native title exists in respect of a particular area, section 225(a) of the NTA requires a determination of native title to include a determination of who the persons, or each group of persons, holding the common or group rights comprising the native title are. Given this provision, the Full Court had cause to consider whether, in circumstances where a valid native title determination application had been made to the Federal Court under section 13(1) of the NTA by a person or persons properly authorised to do so by their native title claim group, the Court could make a determination that another group of persons who have not authorised the making of an application for a determination of native title in relation to that area, hold common or group rights comprising native title in relation to that area.

It was in this context that the concept of who holds or may hold "the common or group rights comprising the native title" in an area was considered in Clifton. Arguably, therefore, some care should be taken before analogously applying any findings from Clifton to the authorisation of ILUAs.

It is not surprising that the Full Court would have found in Clifton that, in order for a determination to be made under the Act, that particular people hold the common or group rights comprising the native title in an area and those people must have first made an application to the Federal Court under section 13(1).

That is because:

"[t]he [NTA] provides no procedures other than those described above [i.e. the making of a s 13(1) application] whereby a person or group of persons may obtain a determination of whether or not native title exists in relation to a particular area and, if it does exist, a determination of who the persons, or each group of persons, holding the common or group rights comprising the native title are."

Problems in the ILUA context

In our view, the ILUA context is quite different. The reference in section 251A to the people who hold or may hold the common or group rights comprising the native title in the ILUA area is not a reference to a group of people seeking a court-approved determination that they hold the common or group rights comprising the native title in the ILUA area. The inquiry required by section 251A should, in our submission, instead be to who can adduce, as a matter of fact, sufficient evidence in support of their claim.

Consider that there is a group of people who have reasonable connection and other evidence to suggest that they may hold the common or group rights comprising the native title in an ILUA area but who, at the time the ILUA falls to be authorised, have not been able to raise the finances or otherwise sufficiently organise themselves to bring a native title determination application. Under Reeves J's formulation, those people will not be required, or in fact entitled, to authorise the ILUA.

However, consider then that those people go on to bring a section 13(1) application and are ultimately determined to hold the native title in the ILUA area. As a result of Reeves J's formulation, all parties would be left with a (wholly avoidable) situation in which, upon the making of the approved determination of native title, the ILUA will inevitably become liable to be deregistered under section 199C(1)(b) of the NTA (because the determined native title holders would not have authorised the making of the ILUA).

We would suggest that his Honour's reasoning will therefore potentially have serious financial and other consequences for Aboriginal people and groups, who may in fact have persuasive claims to native title in an ILUA area but who, as Branson J noted in Kemp, cannot bring native title determination applications for financial or organisational reasons or who might in fact have a philosophical objection to making a native title determination application.

Justice Reeves' approach may also cause problems for project proponents, particularly in those instances where there are no Registered Claimants for an ILUA area. While his Honour did not deal specifically with this situation, his Honour's reasoning would seem to lead to the conclusion that, in the absence of a registered native title claim:

  • while there may be Other Claimants who are identified during the Identification Step, there will be nobody who is capable of authorising the ILUA during the Authorisation Step; and
  • because an ILUA cannot be registered without first having been authorised, proponents would be unable to use ILUAs to ensure native title certainty for their projects for areas that are not overlapped by a registered claim.

Potentially, the Registrar may decide, going forward:

  • to regard Reeves J's decision as being confined to the situation with which his Honour was dealing, ie. where a registered native title claim does exist, and having no application to ILUAs in areas with no registered claim; or
  • where an ILUA relates to an area that is currently unclaimed but in respect of which there previously have been one or more registered claims, to recognise the native title claim group(s) for the previously registered claim(s) as being the people who hold or may hold the common or group rights comprising the native title in the ILUA area (and so are able to authorise the ILUA).

Unless the Registrar chooses to adopt either of these positions (or there has never been a registered native title claim for the ILUA area), Reeves J's decision would appear to present a major problem for project proponents seeking native title certainty for their projects in areas with no registered native title claim.

Where there are no other applicable validation measures available, proponents in these circumstances could be left with the unsavoury reality that compulsory acquisition of the native title in the ILUA area or other statutory mechanisms (if available) are the only solutions that will allow their project to proceed.

With respect, this cannot be an outcome that was contemplated by Parliament in enacting the NTA. The objects of the NTA include "to provide for the recognition and protection of native title" and "to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings".[16]

It would, in our view, wholly detract from these objects were compulsory acquisition of native title to be the only viable option, to allow projects to proceed where ILUAs are required, and there are no Registered Claims in an area. Apart from the matters raised by her Honour in Kemp and referred to above, this is particularly so because, given the frequency with which such claims are dismissed, Registered Claims cannot in any event always be considered to be an accurate indication of who ultimately holds native title in an ILUA area.

In our view, it would make practical sense for the law to revert to a situation in which:

  • native title holders, Registered Claimants and Other Claimants who can make a prima facie case are required to be identified (although greater judicial or legislative clarification around identification would be very useful); and
  • then all of the above people are required to authorise the ILUA on the basis that all such people will either be holders or potential holders of the common or group rights comprising the native title in the ILUA area.[17]

It may, in fact, have been simpler and more appropriate for Reeves J (and even perhaps Logan J in Fesl) to overturn Kemp as this would have still meant that a native title group who only "identified" themselves late in the negotiations and were in the minority could not effectively veto the authorisation therefore and the registration process.

It would also be useful from a project proponent's perspective (assuming the Bigambul Bygrave case has not made this process redundant) to have further guidance on the requirements for persons becoming Identified Native Title People. In the authors' view, the previous tests referred to in this article such as "prima facie case", not "colourable" and the seemingly new test referred to in Bigambul Bygrave's case, do not give project proponents any certainty, particularly where persons identify themselves as potentially holding native title, indicate that they have evidence, but do not provide that evidence or all of it.

This generally leads to project proponents taking an inclusive process or facing the risk that when the ILUA is lodged for registration, without those persons being involved in the process, the ILUA will not be registered if the full evidence is provided to the NNTT during the registration process. In the authors' experience, the inclusive process generally results in there being disgruntled persons who consider (the proponent has included) persons who should not have been included. Similarly, the inclusive process can result in the project proponent being forced either to extend greater benefits to a wider group or to split the benefits that were otherwise to have been made available among a smaller group of people. The latter approach, albeit justifiable, can lead to further discontent from persons who believe they have a legitimate claim as opposed to the claims of others. However, these are debates for another day.

In any event, we will be watching closely to see how the Registrar, and indeed any future courts, will reconcile the judgment in the Bigambul Bygrave case with the practical requirement for ILUAs to be authorised, particularly in areas where only Other Claimants have been identified.

This article was first published in Native Title News Volume 10 No 6, May 2012

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[1] We have confined our discussion in this article to Indigenous land use agreements (area agreements), being the species of Indigenous land use agreement referred to in Subdiv C of Pt 2, Div 3 of the Native Title Act 1993 (Cth). This type of agreement (which is, in fact, the type most commonly used in our experience) can be used provided there has not been a determination of native title for, and there are no registered native title bodies corporate in relation to, all of the area covered by the proposed agreement. Back to article

[2] NTA section 226. Back to article

[3] NTA sections 24AA(2) and 24OA. Note that acts that do not affect native title are not future acts. Back to article

[4] NTA section 227. Back to article

[5] Queensland Construction Materials Pty Ltd v Redland City Council (2010) 271 ALR 624; [2010] QCA 182. Back to article

[6] Queensland Construction Materials Pty Ltd v Redland City Council (2010) 271 ALR 624; [2010] QCA 182; at [76]-[77]. See also Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland (2001) 108 FCR 453; [2001] FCA 414. Back to article

[7] NTA s 199A Back to article

[8] Petroleum and Gas (Production and Safety) Act 2004 (Qld) sections 401(2) and 441(2). Back to article

[9] NTA section 24EA(1)(b). Back to article

[10] NTA section 24CD. Back to article

[11] NTA Pt 5, particularly sections 95 and 96A. Back to article

[12] NTA section 24CG(3). In the remainder of this article, we will explore certain of the elements that are required in order for an ILUA to be considered "properly authorised". Back to article

[13] See Murray v Registrar of the Native Title Tribunal (2002) 77 ALD 96; [2002] FCA 1598; BC200207928 at [74]-[75] per Marshall J. See also Kemp v Native Title Registrar (2006) 153 FCR 38; [2006] FCA 939; BC200605607 (Kemp), in which Branson J suggested, at [59], that a person would not be required to authorise an ILUA if their claim to be a person who holds, or may hold, native title was merely "colourable". In such circumstances, according to her Honour, "It would have been open to the Registrar to conclude that [the claim advanced by such a person] was without substance and, for that reason, that [that person's] authority for the making of the agreement was unnecessary". Back to article

[14] Note that Reeves J, in the Iman Bygrave Case, considered at some length the identity (and role as parties) of the particular individuals who are required (or permitted) by section 24CD to be parties to an ILUA. Back to article

[15] See Kemp, op cit. (Reeves J in the Bigambul Bygrave Case emphasised that he was not overruling Kemp, however, as we will see, it is difficult to reconcile both judgments). Back to article

[16] NTA subsections 3(a) and (b). Back to article

[17] An exception will be where a person asserts only individual native title rights and interests in the area. Back to article

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.