Background
This case regards the Court declaring an implied term in an Indigenous Land Use Agreement (ILUA) named QGC. The ILUA was signed in 2010 by representatives of families which comprised the Native Title Party. A ‘nominated entity’ (BCJWY) under the ILUA was selected to receive compensation from QGC over a period of 10 years. Members of the families had concerns around the efficacy of BCJWY and in 2019 the nominated entity went into liquidation. This meant that QGC had no person whom the ILUA was to pay the compensation benefits to. The issue was if the nominated entity could be replaced, and if so, had that occurred due to the members of families creating the entity Boonyi Downs. The issue of replacement links to issues of payment and distribution.
Implied Term
Section 24EA of the Native Title Act 1993 (Cth) (NTA) provides that when ILUAs are registered they have a contractual effect. His Honour noted that it is not a commercial contract but a statutory one. Clause 2.1 of annex 3 of the ILUA required a nominated entity. His Honour read in an implied term into cl 2.1(b) which allowed for a ‘nominated entity’ to be replaced when ‘the nominated entity for any reason has ceased to be capable of acting in accordance with clause 1.2’. His Honour drew upon BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 180 CLR 266 and Electricity Generation Corporation v Woodside Energy Limited (2014) 251 CLR 640. Following the criteria in those cases, his Honour found that adding the term was ‘…reasonable and equitable, necessary to give business efficacy to the contract, so obvious that it goes without saying, clearly expressed, and does not contradict any express term of the ILUA.’ It was not the intent of the parties to be unable to replace an existing corporate or trustee nominated entity to conform with cl 1.2. The intent was to have an entity at all times.
Replacement and Payment Issues
His Honour was not satisfied that Boonyi Dams was a sufficient nominated entity for the purposes of the ILUA. It did not meet the meaning of cl 1.2(a) of annexure 3. Its membership was too narrow and on evidence was not established by the families for the purposes of the ILUA per cl 1.2(a)(iv). Due to not being satisfied that the nominated entity had been replaced, his Honour did not need to consider the payment issue.
Distribution Issue
The Court found there was an ability to distribute funds through orders to the National Native Title Tribunal (NNTT) to make an agreement per s 203BK(3) of the NTA.
Conclusion
Rares J made a declaration that the ILUA contained an implied term. In this instance it allowed for a procedure to change the nominated entity by adding implied words into cl 2.1(b). In this case, the proposed entity was ineligible to replace the original as it did not satisfy the criteria of the ILUA.