Allsop CJ, McKerracher and Mortimer JJ
In this matter the Full Federal Court considered 13 applications for judicial review of six decisions of the Registrar of the National Native Title Tribunal (Registrar) to register six Indigenous land use agreements (ILUAs) pertaining to an area of over 200,000 square kilometres in the South West of Western Australia (Settlement Area).
The 13 applications were in 2 groups, with Ms Mingli Wanjurri McGlade treated as the lead applicant of the first group (McGlade applicants) and Ms Maryanne McKay as the lead applicant of the second group (McKay applicants).
The respondents are the South West Aboriginal Land & Sea Council Aboriginal Corporation (SWALSC), State of Western Australia (State), Commonwealth of Australia, Native Title Registrar and various named individuals on their own behalf and as representatives of parties to the ILUAs.
Background
The Settlement Area has been the subject of numerous native title determination claims by the Noongar people, some dating back to the 1990s. None of the claims resulted in a successful determination.
The ILUAs would action an agreement between the State and representatives of the Noongar people to settle all native title claims of those people and provide for a package of benefits (estimated value $1.3 billion) in return for the Noongar people:
surrendering all native title rights and interests in relation to the land and waters in the Settlement Area;
consenting to determinations that native title does not exist; and
validating potentially invalid acts carried out by the State in the Settlement Area.
The McGlade applicants claimed that the Registrar was incorrect in finding that the authorisation conditions for registration of the ILUAs had been satisfied because not all native title holders had authorised the making of the ILUAs.
The Mackay applicants claimed that each ILUA concerned native title held by all Noongar people but the authorisation meeting notices did not invite all Noongar people to each authorisation meeting and when this issue was raised, the Register made an error of law by concluding that subgroups of the common law native title holders could authorise specific ILUAs.
McGlade Grounds of Appeal - Consideration
SWALSC misled native title holders about the nature of the authorisation process they were able to adopt
The McGlade and Mackay Applicants argued that SWALSC misled native title holders about the nature of the authorisation process they were able to adopt by stating that the Native Title Act 1993 (Cth) (NTA) required that each step of the authorisation process must take place at a meeting on country and that any votes must be cast in person.
As a consequence, the Applicants argued that, if the native title holders had not been misled, the Registrar was required to find that it was possible, if not likely, that the group would have adopted a different authorisation process that enabled more people to vote and it was possible the ILUAs would not have been authorised.
The Full Court rejected this ground on the basis that the Registrar was not required to take the alleged fact that the native title holders were misled into account as a mandatory consideration. The Full Court referred to the decision in Bright v Northern Land Council [2018] FCA 752 concerning ss 24CK(2)(c) and 203BE(5) of the NTA and noted that the assertion was not an undisputed fact and the Registrar had taken the information into account in making her decision.
The Registrar was wrong to find that the NTA authorisation requirements were met when a large number of Noongar people in prison were denied the opportunity to participate in the authorisation process
The McGlade Applicants argued that the Registrar was wrong to find that SWALSC had made all reasonable efforts to give all native title holders the opportunity to participate in the authorisation process, as prescribed in s 203BE(5) of the NTA, when a large number of incarcerated Noongar people were denied the opportunity to participate.
The Full Court was not satisfied that the McGlade Applicants' evidence supported this claim. The Court also expressed some concern that SWALSC did not provide any specific evidence of any contact made with women's prisons. While acknowledging the significance of this concern the Court concluded that the evidence did not show that a majority of native title holders entitled to vote shared this view.
The Full Court concluded, on the basis of existing authorities, that despite the literal words of s 251A of the NTA, it is not necessary for all native title holders to participate in the authorisation process. The real test is whether or not a reasonable opportunity to participate has been provided to the native title holders (or those who may hold native title) as a group, and without requiring that each and every individual member of the claim group (or native title holding group) had a ‘reasonable opportunity’ to participate.
In this context, while the Full Court specified that a representative body would be expected to consider the feasibility of the involvement of incarcerated members of a claim group as part of reasonable efforts, it found that the Registrar was entitled to conclude that the notification exercise carried out by SWALSC to the members of the native title group, including incarcerated members, was sufficient to determine the opportunity was reasonable. Therefore, the Full Court rejected this ground.
The Registrar was wrong to conclude that the conditions of the NTA were met when most native title holders were not given a reasonable opportunity to participate in the authorisation process when all meetings (but one) were held 'on country'.
The McGlade Applicants claimed that the Registrar was required to independently assess whether the native title holders were given a reasonable opportunity to participate in the process and this could not be when it was "practically impossible for most Noongar people to attend.
The Full Court rejected this ground as there was limited evidence that inadequate transport was provided to people and no evidence to support the conclusion that it was 'practically impossible' for most Noongar people to attend the meetings. The Court concluded that the fact that the meetings were on country, in circumstances where transport and food were provided and notice was given well in advance, make it clear that a reasonable opportunity was provided.
Mackay Ground of Appeal - Consideration
The Mackay applicants claimed that none of the notices for the six authorisation meetings included an invitation to all members of the Single Noongar Claim and the Registrar was wrong to conclude that all people who hold native title in relation the relevant areas had authorised the ILUA.
The Full Court considered the evidence presented and reasoning of the Registrar and concluded that the Mackay applicants' assertion that invitiations were only issued to invited descendants of particular ancestors of the Noongar people, rather than all Noongar people who held native title rights to the area, is based on a mistaken factual premise. The only people who were not invited to the authorisation meeting were those who did not assert that they held native title rights in the area.
Consequently, the Full Court rejected this ground.
Amendments to the Grounds of Review
Before the hearing the applicants sought leave to amend their applications to assert that the certifications by the CEOs of SWALSC were invalid as the certification function under s 203BE(1)(b) of the NTA could only be exercised by SWALSC itself and could not be delegated to the CEO.
The request was based on the recent decision of Northern Land Council v Quall [2019] FCAFC 77 (Quall)in which the Full Court unanimously held that the certification function of the relevant representative body under s 203BE(1)(b) of the NTA was non-delegable.
The Full Court found that the decision in Quall did not apply because it concerned different incorporation and delegation powers under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) that did not apply to the certification functions under s 203BE if the NTA. In contrast, SWALSC had a power of delegation under the Corporations (Aboriginal and Torrest Strait Islander) Act 2006 (Cth) (CATSI).
Following a detailed consideration of the evidence and submissions filed by the parties, the Full Court found that the SWALSC directors delegation of power to the CEO had the limited effect of altering how and through whom the corporation fulfilled its function. On this basis, SWALSC performed the certification function itself.
As a result, none of the appeal grounds were unsuccessful and the judicial review applications were dismissed.
Orders
The applications be dismissed.
The applicants pay the costs of the respondents, to be assessed if not agreed.