Overview
In this matter, the High Court found that the certification function of representative bodies to register Indigenous Land Use Agreements (ILUAs) under s 203BE(1)(b) of the Native Title Act 1993 (Cth) (NTA) is delegable. This decision upheld the appeal of the Northern Land Council (NLC) and its Chief Executive Officer (CEO), remitting their case to the Federal Court for resolution. The respondent in the matter was Mr Quall. The Northern Territory and Attorney-General also intervened in the matter.
Background
For acts to be done in relation to land or waters within the area of a representative body under the NTA, ordinarily a registered ILUA is required. Registration of ILUAs can occur through the representative body certifying that all reasonable efforts have been made to ensure all native title holders have been identified and given their authorisation for the act (s 203BE(5) NTA).
The relevant ILUA in this matter is known as the Kenbi ILUA, an agreement over land and waters within the NLC’s jurisdiction in the Cox Peninsula. In 2017, the CEO made the decision to issue the certificate and signed for the registration of the ILUA alone. This led to a challenge by two individuals, Mr Quall and Mr Fejo. They contended the NLC's certification function, provided in s 203BE(1)(b) NTA, was non-delegable or, alternatively, that it was not validly delegated to the CEO.
Litigation history
The Federal Court made the primary finding that the function was delegable, but that the NLC had not properly executed the delegation to the CEO. This was appealed and the Full Federal Court held that the function was not delegable. Subsequently, the NLC and the CEO appealed to the High Court, and special leave was granted. The Attorney-General of the Commonwealth and the Northern Territory sought and were granted leave to intervene.
The judgment was keenly anticipated, as it has been common practice to task CEOs with certifying ILUAs. The Full Federal Court’s judgment had also cast doubt over the validity of numerous ILUAs.
Submissions
The respondent submitted that certifying the registration of an ILUA, which involves the representative body forming an opinion, should be carried out at the most "naunced level", namely a consensus by a majority vote of Council, rather than through an individual.
The interveners, the Attorney-General (AG) and the Northern Territory (NT), broadly supported the NLC and the CEO in submitting there was no applicable impediment to delegation.
Decision
The appeal was unanimously upheld and the certification function under s 203BE(1)(b) of the NTA was held to be delegable. However, the reasons given by their Honours varied.
Overturning the Full Federal Court
The High Court stated that the two key apprehensions of the Full Federal Court were not well founded. Firstly, the High Court held that ss 203BK(2) and 203B(3) should not be read together. Secondly, the Full Court’s finding that s 203BE(1)(b) must be executed by members of body in plenary session, given the representative nature of the body, was held to fail to account for the range of bodies recognised as representative. Furthermore, the Registrar factually determines whether the opinion was formed. Edelman and Nettle JJ, writing together, found it was incorrect for the Full Court to characterise it as a delegation of functions.
Majority
Kiefel CJ, Gaegeler and Keane JJ characterised the matter as two questions to be answered: (1) was there an impediment to delegating the function; (2) was there a source of power to delegate found in the founding statute of the NLC (i.e. the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA))?
In regards to the first question, the majority found there was no impediment in the NTA to delegate the function generally. However, it was held power to delegate must be found in the NLC’s founding statute for the act to be valid.
In discussing this, the majority answered the second question affirmatively, finding that the NLC can delegate s 203BE(1)(b) of the NTA through s 27(1) of the ALRA. It was noted that s 28 of the ALRA requires express authorisation to delegate functions under the ALRA. However, s 27(1) ALRA permits the delegation of functions conferred under other statutes, which would include the functions under the NTA. Further, no barrier in the ALRA prevents the delegation of the Land Council’s functions if it is ‘necessary or convenient.’ The Majoirty found delegation of a function to a staff member engaged under s 27(1)(a) fell within those bounds, with supporting discussion of other functions delegable to staff. By operation of s 34AB(1)(c) of the Acts Interpretation Act (1901) (Cth) (AIA), a function performed by staff as delegate is deemed to have been performed by the Land Council itself. If the function depends on the Land Council's opinion, delegate staff can rely on their own opinion (s 34A AIA).
Overall, 27(1) ALRA was interpreted to confer the power for the NLC to delegate its functions under the NTA to staff (engaged under s 27(1)(a)), but only where the delegation was objectively necessary or convenient to perform the NLC’s functions. Under the NTA, ALRA, and AIA, the certification function carried out by a CEO, where properly delegated, amounts to performance by the NLC.
Minority
Nettle and Edelman JJ agreed that the appeal should be allowed and echoed the marjoity’s orders. However, their Honours found that s 203B(3) NTA expressly prohibited delegation. Rather, their Honours characterised it as agency: ‘It is plain that the CEO of the NLC purported to act only as an agent and not personally in accordance with a delegated power [104].’ It was held that acting as an agent is distinct from delegation, and representative bodies act through natural persons as agents in order to function. This removed the need to draw an implication from s 27(1) ALRA. The certification function was described as a substantial undertaking, conferring the power to apply for native title and ILUA registrations. However, a representative body performs such functions through its agents, including its CEO, as a practical necessity.
Unresolved Issues
The case was remitted to the Federal Court for further resolution. The majority stated that the question remaining was whether the NLC had effectively and duly delegated its certification function to its CEO. In answering this, the Federal Court must give leave to hear the appellants’ fresh evidence. Edelman and Nettle JJ deemed that the unresolved question was whether the NLC's constitutive instruments permitted its CEO to exercise that function.