North, Barker and Mortimer JJ
In this matter, North, Barker and Mortimer JJ considered whether the registration requirements had been met for Indigenous Land Use Agreements filed as part of the South West Native Title Settlement (SWNTS). The settlement is made up of six ILUAs that relate to land and waters in south west Western Australia claimed by the Yued, Whadjuk, South West Boojarah #2, Gnaarla Karla Booja, Ballardong and Wagyi Kaip claim groups. The ILUAs together were to provide for full and final settlement of all current and future claims made by the Noongar people under the NTA. The ILUAs provided for a settlement package valued at approximately $1.3 billion in return for precluding the native title parties from seeking future determinations of native title and validating past acts of the state.
The applicants Mingli Wanjurri McGlade, Mervyn Eades, Naomi Smith, and Margaret Culbong brought four claims which were heard together relating to the validity of four SWNTS area agreement ILUAs. The respondents were the Native Title Registrar, the State of Western Australia, the South West Aboriginal Land and Sea Council, and representatives of the Noongar people who had signed and agreed each contested ILUA. The parties to the ILUAs were the State of Western Australia, a large number of state entities, and the South West Aboriginal Land and Sea Council.
Background
The applicants in this matter are individuals who are named applicants authorised to act on behalf of the claim group for each agreement. Each of the applicants in this matter refused to sign the ILUA relating to their respective native title claim group. One of the applicants for the Whadjuk claim group died before the Whadjuk ILUA was registered, yet remained listed as a registered claimant. Another named applicant for the Whadjuk claim group only signed one of the contested agreements after the application to register the ILUA was made.
At the authorisation meetings for the ILUAs, resolutions were passed stating that it was not necessary that every named applicant comprising the registered claimant sign the ILUAs. Rather, the authorisation meetings allowed the Noongar people to vote in a secret ballot for or against the ILUAs, with no party holding veto power. The four applicants of this proceeding did not vote for the ILUAs at these meetings.
SWALSC had authorised the registration of the ILUAs with the NNTT, under s 251A of the NTA.
The review proceedings originally commenced in the High Court but were remitted to the Full Federal Court in February 2016.
Submissions
The applicants contended that because ‘all persons in the native title group’ were not party to the four ILUAs, these agreements were not ILUAs within the proper construction of s 24CD of the NTA, at [32]. The applicants contended that therefore the ILUAs could not be registered with the Native Title Registrar (NTR) under s 24CG of the NTA. The applicants sought declaratory relief and a prohibition against the NTR preventing the registration of the ILUAs, at [280].
The state contended that the NTA requires the ‘registered native title claimant’ is made up of the named applicants but should be construed as a single party that is subject to the control of the broader claim group, at [334].
SWALSC contended that the construction of s 251A of the NTA rendered it unnecessary for each named applicant to sign the ILUAs because SWALSC had deemed that the ILUAs complied with ss 24CA and 24CD of the NTA.
Joint Judgment
North and Barker JJ determined that the authorisation meetings for the four ILUAs were not effective, and that each applicant or native title claimant must sign an ILUA in order for it to be effective at [262-264]. Their honours came to this decision by interpreting the terms ‘applicant’ and ‘registered native title claimant’ in way that they considered was consistent throughout the NTA and with the purposes and construction of the NTA, at [244]. Their Honours found that nothing in the wording of the NTA indicates that an ILUA can take effect without the signatures of all named applicants.
North and Barker JJ held at [245] that if a named applicant refuses to sign an ILUA they must be removed under the provisions in s 66B of the NTA.
Their Honours also determined that the court may have discretion to remove deceased applicants under s 66B of the NTA in order to register an ILUA with the National Native Title Tribunal, but this discretion should not be exercised considering that the claim group may wish to alter the composition of the registered claimant following the death of an existing claimant, at [269].
Their Honours held at [271] that an ILUA is still effective if a named applicant signs the agreement after it has been lodged for registration with the NNTT, but before registration has been completed.
Mortimer J
Mortimer J accepted that although the ‘applicant’ should be defined under s 61 of the NTA as a singular entity, it is comprised jointly of multiple people, requiring it to act unanimously as a body, at [227].
Mortimer J found that ‘all persons’ who must be parties to the ILUA in s 24CD(1) of the NTA are those comprising the ‘native title group’ which as an entity is referred to as the ‘native title claimant’. To require unanimous action is in line with the requirements of the general law characterising an ILUA as a contract.
Her Honour considered that although the effect of her construal of NTA provisions is in line with the majority, the provisions should not be interpreted as giving named applicants veto powers. Mortimer J considers at [494] that proper construction of the NTA will allow named applicants to draw attention to disparate opinions in their representative role, and if these opinions are not supported they may be removed under s 66B of the NTA.
Effect of the decision
This decision overruled the precedent of the Federal Court in QGC Pty Ltd v Bygrave and Others (No 2) [2010] FCA 1019 that considered the requirements in s 24CD of the NTA to be satisfied if at least one of the named applicants had signed the ILUA. The NNTT has registered many ILUAs on the basis of the reasoning in Bygrave #2 but this Full Federal Court review of the decision may assist those wishing to contest the validity of such ILUAs.
North and Barker JJ noted at [265] that this outcome is inconvenient because the textual requirements of the NTA may now give effective veto power to one or more people who jointly make up a registered native title claimant. North and Barker JJ further noted that Parliament, rather than the court should consider whether there should be a mechanism other than s 66B for dealing with applicants who refuse to sign ILUAs despite the willingness of the claim group to enter these agreements, at [265].
Orders
North and Barker JJ declared that the Wagyl Kaip and Southern Noongar ILUA, the Ballardong People ILUA, the Whadjuk People ILUA, the South West Boojarah #2 ILU are not ILUAs within the meaning of s 24CA of the NTA and therefore the Native Title Registrar under Div 3 of Pt 2 of the NTA had no jurisdiction to register these ILUAs.
The Full Court ordered that the applicants are entitled to declaratory relief in each decision.
The Full Court ordered that if the parties fail to agree as to the costs order within 14 days, the question of costs should be determined following further submissions.