Rares J
In this matter the Federal Court considered a challenge to the Court's power to make orders controlling the way several million dollars payable under an Indigenous Land Use Agreement (ILUA) should be dealt with as part of proceedings for a determination of native title.
An interlocutory application was lodged by 3 related companies, Mandandanji Limited, Mandandanji Enterprises Pty Ltd, and Mandandanji Cultural Heritage Services Pty Ltd (Mandandanji Companies), seeking a variation or dismissal of the orders so far as they related to the Mandandanji Companies. The State of Queensland and the Commonwealth of Australia, supported the interlocutory application.
Background
On 15 March 2013, the Court found, in light of serious dysfunction in the applicant group, that there was no longer an authorised applicant for the native title claim. The Court also found that there was no certainty that a replacement applicant would be successful in obtaining a determination because of a significant anthropological issue regarding which of two possible applicant groups comprise the native title claim group.
To guard against the erosion of the true native title holder’s rights and interests by third parties until the native title claim was resolved the Court made various orders which limited the way the native title applicant could direct monies held and future monies received under an Indigenous land use agreement (ILUA) and s 31 agreements under the Native Title Act 1993 (Cth) (NTA) and required claim group members who were directors of any corporation that received any payment or benefit for the claim group since March 2009 to arrange for the company to account to the Registrar of the Court, the applicant and the solicitor for the claim group for those payments and benefits.
See Related Content: Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255.
Application to Vary the Orders
The Mandandanji Companies argued that while the Court had power to make the orders affecting them, the orders were not justified because the orders were not sufficiently related to the final relief sought, which was a determination of native title under s 225 of the NTA. The Mandandanji Companies argued that nothing in the NTA prevented the applicant dealing with benefits it received or the claim group enjoying the benefits under ILUAs and s 31 agreements prior to a determination. In addition, it was argued that the NTA did not impose any duty on an applicant to act for the benefit of the persons who might ultimately be entitled to a native title determination in their favour.
Queensland argued that the Court had no power to require payments under ILUAs or s 31 agreements to be paid into Court pending a determination. This was because the NTA did not require payments under an ILUA to be paid to the native title rights holders and an ILUA continued to exist as an independent contract despite a determination of native title.
The Commonwealth supported Queensland's arguments.
Reasoning
The Court noted that it has power to protect the integrity of the Court's processes once proceedings have been commenced and the process may be frustrated or abused if native title rights or interests are dissipated under the authority of an ILUA or s 31 agreement negotiated by claimants who are not some or all of the true owners.
The NTA does not create an exhaustive code of exclusive remedies that would prevent the ordinary exercise of the Court’s jurisdiction under s. 23 of the Federal Court Act 1976 (Cth). Nor does the fact that a determination under s 225 of the NTA is the final relief sought prevent the Court from making orders to protect the status quo while, at least, the applicant on the Court’s record is too dysfunctional to progress the proceedings.
The Court found that the March Orders did not interfere with the ordinary operations of the Mandandanji Companies and the NTA gives substantial power to people negotiating ILUAs on behalf of all persons who may or actually hold native title. This power is a fiduciary power that must be exercised in the interests of and for the benefit of all of relevant people and Parliament could not have intended that people who were simply claimants would be able to use their mere and contestable status to enrich themselves to a substantive and permanent extent at the expense of the true native title holders.
On this basis His Honour rejected the Mandandanji Companies' arguments. The Court also rejected the broader arguments of Queensland and the Commonwealth as misconceived.
Orders
The interlocutory application was dismissed and a further hearing scheduled for the appointment of a private person to act as trustee in place of the Registrar.