Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245

Year: 
2018
Jurisdiction: 
Queensland
Forum: 
Federal Court
Legislation considered: 
s 251A Native Title Act 1993 (Cth)
s 24CG Native Title Act 1993 (Cth)
s 203BE Native Title Act 1993 (Cth)

The applicant, Delia Kemppi applied to have the registration of an Indigenous Land Use Agreement (ILUA) set aside. The parties to the ILUA are Adani Mining Pty Ltd, the State of Queensland and the Wangan and Jagalingou claim group (‘W&J claim group’), of which Kemppi is an applicant. Kemppi sought to have the Registration declared void, and consequently sought a declaration that the Registrar had no jurisdiction to consider Adani’s application and therefore the decision to enter the Adani ILUA on the Register of ILUAs was also void.

Background

There was an authorisation meeting held on the 16 April 2016 to consider authorising the making of the Adani ILUA under s 251A of the Native Title Act 1993 (Cth) (NTA). The ILUA was signed on behalf of the State of Queensland, by Adani, and by 7 of the 12 individual members of the Registered Native Title Claimant for the W&J Native Title Claim and on behalf of the W&J people. Ms Kemppi did not sign.

Adani then made an application to the Registrar under section s 24CG NTA for the ILUA to be Registered. Queensland South Native Title Services (QSNTS) is the recognised native title service provider for the Southern and Western Queensland Region under s 203FE of the NTA. QSNTS certified the ILUA in accordance with s 203BE(5)(a) and (b) of the NTA.

Ms Kemppi argued that there was no or little attempt made to verify the claims of those persons who attended the authorisation meeting on 16 April 2016 meeting and who sought to participate in that process that they were W&J people. Kemppi challenged the Registration on three grounds: (1) QSNTS acted unreasonably in granting the certificate and thereby committed jurisdictional error. QSNTS acted unreasonably in certifying the ILUA as the authorisation meeting contained large numbers of people not previously in the database maintained by QSNTS as being part of the W&J claim group. (2) QSNTS failed to take account of a number of relevant considerations. These included considerations of the laws and customs of the W&J people, and the extent to which persons who asserted Wangan and Jagalingou identity but were not entitled to that status voted and participated in deliberations as if they were Wangan and Jagalingou persons at the 16 April 2016 authorisation meeting. (3) Adani’s application to register the ILUA did not comply with regs 5 and 7(2)(e) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth)

Reeves J identified three key statutory provisions of the NTA as being central to the validity of the certification and thus to the ILUA: ss 24 CG(1), 203BE, and 251A(1). The Adani ILUA is an area ILUA as defined in Subdivision C of Div 3 Pt 2. This Subdiv deals with the prerequisites for an area agreement ILUA (ss 24CA to 24CE) and prescribes the procedural requirements for the registration of an agreement as an ILUA. Reeves J highlighted specifically within this the certification requirements s 24CG. His Honour noted at [101] that ‘This section has a central role in this proceeding because the Certificate allowed Adani to comply with s 24CG(3)(a). It, in turn, provided the means by which the Registrar could be satisfied that the identification process referred to in s 203BE(5)(a) had duly occurred and the consent to the agreement of all the persons so identified had been properly obtained.’

The Certificate was issued pursuant to the QSNTS’ functions under s 203BE(1)(b) of the NTA. A representative body must not certify an application for an ILUA unless it is of the opinion that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and all the persons so identified have authorised the making of the agreement.

His Honour found that, as the section requires the representative body to be of the opinion that ‘reasonable efforts’ have been made to ensure all those persons have been identified, the critical matter upon which the opinion must be held is ‘whether everyone falling into this category of people has been identified’ at [109]. Reeves J stated that ‘may’ introduces an element of objectivity, referring to the reasoning of White J in Bright v Northern Land Council [2018] FCA 752. The section is therefore to be construed ‘expansively and inclusively to mean every individual, group of persons, or community, of Aboriginal or Torres Strait Islander descent, who holds native title, or by any means makes a claim to hold native title, or otherwise has a characteristic from which it is reasonable to conclude that person, group, or community holds native title, in any part of the area covered by the agreement’ at [112]. Referring also to QGC Pty Ltd v Bygrave (No 3) [2011] FCA 1457, Reeves J held that the construction of s 24CG(b)(i) and (ii) applies equally to s 203BE(5)(a) and (b) respectively as they are ‘substantially identical’ at [113]. Thus the primary purpose of s 203BE(5) is 'to ensure that all those Indigenous persons whose native title could be adversely affected by a proposed ILUA are identified and given an opportunity to participate in the process by which that ILUA is authorised, or consented to’ at [116].

Reeves J found that the second group of people identified in the statute (who ‘hold or may hold the common group rights comprising native title’) is a subgroup within ‘all persons identified’. Here, it was the W&J claim group who comprised this subgroup. Thus, it will be the process of decision-making of that second grouping of persons that must be utilised to authorise the making of an agreement under s 251A. Therefore: ‘if that group of persons has a process of decision-making under its traditional laws and customs, then the first grouping of persons (which will obviously include the second grouping) must authorise the making of the agreement in accordance with that process. Alternatively, if that second group of persons does not have such a traditional decision-making process, the first grouping of persons must authorise the making of the agreement in accordance with a process of decision-making that is agreed to and adopted by the persons in that second group (see s 251A(1)(b))’ at [123].

His Honour subsequently stated at [125] that s 23CG(3)(a) is connected to ss 203BE and 251A, ‘which together operate to ensure that all the Indigenous persons whose native title may be affected by the provisions of a proposed ILUA have been identified and given an opportunity to participate in deciding whether or not to consent to that agreement being made’. Section 251A provides additional protection to those who ‘may hold the common or group rights comprising the native title’ by providing that that group is to determine the decision-making process; thus it was the W&J claim group to determine the decision-making process that had to be utilised by the broader group of persons mentioned above to authorise, or consent to, the Adani ILUA’ at [126].

Unreasonableness ground

Reeves J outlined the relevant principles for legal unreasonableness: ‘a decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power’ (French CJ in Minister for Immigration and Citizenship v Liat [2013] HCA 18 [26]). His Honour noted the difficulty in reviewing a ‘state of satisfaction’ decision at [111], commenting on limited capacity of the Court to ‘effectively review a state of satisfaction forming a precondition to an exercise of a statutory power or performance of a statutory duty where the matter of which the repository is required to be satisfied or a matter of opinion, policy or taste’ (at [139]). His Honour stated that the issuing of the Certificate fell within this category, as the ‘issuing of the certificate was premised on Mr Smith holding the two opinions described in s 203BE(5)’ [139].

Reeves J affirmed at [10]-[12] that ‘it cannot be doubted that a decision based on a state of satisfaction or opinion is reviewable’ (at [141]), however ‘the test for unreasonableness is necessarily stringent’ and thus ‘within the sphere of the statutory purpose there is scope for a decision-maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts’: Minister for Immigration and Border Protection v SZVFW [2018] HCA 80 .

Having regard to these principles and the statutory construction, Reeves J considered the applicant’s unreasonableness ground as ‘entirely devoid of merit’ (at [145]). His Honour held that aside from the materials Mr Smith had before him when he issued the certificate (which concerned the efforts taken to identify persons who may hold native title in the area of the Adani ILUA), Mr Smith was not obliged to turn his mind to any of the other items which the applicant submitted in forming his opinion (for example the attendance levels, or procedures followed). His Honour stated Mr Smith’s opinion concerning the reasonableness of efforts to identify the persons in the first above group, he relied upon the extensive knowledge that QSNTS had gained as representative body for area, as well as the widespread public advertising of the authorisation meeting, and did not meet the standard of unreasonableness above described. 

Relevant considerations ground

Ms Kemppi asserted that Mr Smith had failed to take into account certain relevant considerations when issuing the Certificate. His Honour held that a ‘relevant consideration of which a decision-maker is bound to take account pursuant to the provisions of the statute under which he or she is processing. They will include those matters that the statute specifically says must be taken into account and other matters that are discernible from the subject matter, scope and purpose of the statutes’ (at [155]). His Honour concluded that, per the consideration of s 203BE(5)(a) and (b) above and their context and purpose, Mr Smith was bound to have regard to (at [156]):

  1. the reasonableness of the efforts made to identify the persons falling into the first group of persons mentioned above; and
  2. whether that group of persons authorised the making of the Adani ILUA in accordance with the decision-making process adopted by the second group mentioned above, namely the W & J claim group.

Thus, Mr Smith was not bound to have regard to the laws and customs of the W&J people concerning the criteria for membership of that People. Membership of the W&J claim group was not a criterion for participation in the authorisation process for the Adani ILUA. Thus it follows that the second limb was also not a consideration to which Mr Smith was bound to have regard when issuing the Certificate. Therefore, this ground was also found to have no merit.

Complete description ground

Ms Kemppi asserted that the application for registration of the Adani ILUA was not accompanied by a document which contained a ‘complete description’ of the area in which native title rights were to be surrendered and extinguished, as per reg7(2)(e) of the Regulations. Ms Kemppi contended in her submission that the proper construction of this provision included that: (1) when authorising an area ILUA, the persons who hold or claim to hold native title are entitled to know the physical locations for which their rights (or asserted rights) will be extinguished, in particular sites of cultural importance; and (2) under the Adani ILUA, the area of any ‘Surrender’ under cl.9(b) will not be known to the Native Title Parties until Adani sends them the plan referred to in cl.9, a time after which the ‘Surrender’ has already extinguished any native title rights and interests for the area.

Reeves J found that Adani was correct in its submissions that the ILUA contained both a written description of the Surrender Zone and a map of the Zone which includes geographic coordinates. His Honour held that reg7(2) is not concerned with the authorisation process for an ILUA, but rather with the application for registration of such an agreement under s 24GC of the NTA. His Honour held that the text of the Regulations only requires the complete description to be such that it ‘enables identification of the boundaries of the area in question. The word ‘area’ refers to that area where ‘it is intended to extinguish native title rights and interests’. Here, the Adani ILUA provides that extinguishment is to occur in the ‘Surrender Area’ and thus contains describes the boundaries, thereby containing a complete description for the purpose of reg7(2)(e). His Honour held that the provision, together with its construction, offered no indication which supported the level of specificity that Ms Kemppi contended is required for the 'complete description' of the area (at [168]).

Reeves J concluded that none of Ms Kemppi’s grounds of challenge to the Certificate and/or registration of the Adani ILUA had any merit. His Honour ordered that the applicant's further amended originating application filed 18 December 2017 is dismissed and the applicants pay the respondents’ costs to be agreed or assessed.