High Court confirms the validity of Indigenous land use agreements certified through representative body CEOs

In Northern Land Council v Quall [2020] HCA 33, by reversing the decision handed down by the Full Court of the Federal Court in May last year, the High Court precluded what could conceivably have been a flood of challenges to the lawfulness of existing registered ILUAs (and to the validity, from a native title perspective, of the operations supported by those ILUAs).

Any other outcome – particularly in the current climate of economic uncertainty – could have seen urgent calls being made for Parliament to intervene.

While today’s development will be welcomed by many, the decision is noteworthy for conflicting approaches taken by their Honours to reach the same result.

ILUAs and their registration

Where such things as resources tenements and other statutory approvals, and real property tenures, are to be granted in respect of areas where native title may continue to exist, one way (and sometimes the only way) of ensuring that these “future acts” validly affect native title is to have the parties to a registered ILUA consent to the doing of the acts.

The processes for making the various types of ILUAs, and having them registered, are governed by the Native Title Act 1993 (Cth) (NTA). Today’s Quall decision dealt with the registration of an “area agreement”, which is the type of ILUA that is invariably made where the agreement area consists of (or includes) an area where native title has not been determined.

Any application for the registration of area agreements must either:

• include a statement from the applicant that all reasonable efforts have been made to ensure that all people who hold or may hold native title in relation to the ILUA area have been identified, and that all of the identified people have authorised the making of the ILUA; or
• have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area.

In the latter case, a certificate must convey the opinion of the representative body that the identification and authorisation requirements have been satisfied.

The Native Title Registrar must register the ILUA where, relevantly:

• (if the application was accompanied by a statement), she forms her independent opinion that the identification and authorisation requirements were satisfied; and
• (if the application was certified), she has not been satisfied by the maker of any “unwithdrawn objection” that the identification and authorisation requirements were not met.

Given the subtle difference in the onus of proving whether the requirements were satisfied, the parties to many of the over 900 registered area agreements took steps to have their ILUA registration applications certified.

The issue that arose for determination by the High Court in Quall emanated from what, anecdotally, seems to be the general practice of representative bodies tasking their CEOs with the job of certifying ILUA registration applications. The particular controversy was the result of the Full Court’s decision that one particular representative body (the Northern Land Council (NLC), which is constituted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA)) had impermissibly delegated the NTA certification function to its CEO.

If the High Court had dismissed the appeal against the Full Court’s decision, the question that would have arisen would have been whether the inability of the NLC to delegate was:

• the result of the limited delegation power within the ALRA; or
• indicative of a broader prohibition in the NTA against delegation of the certification function.

The potentially dire implications of the latter consequence were the direct cause of the keen interest taken in the case.

The majority view

The source of the certification function is section 203BE(1)(b) of the NTA. The Full Court had decided that, as a matter of the construction of the NTA, the certification function is incapable of delegation. In the event, the Full Court made a declaration to the effect that the NLC “did not have power to delegate” its certification function to the CEO.

It was relevant to the Full Court’s decision that the NLC, as a body constituted under the ALRA, did have a power of delegation as set out in section 28 of that Act. However, that power was specifically limited to the delegation of functions and powers under the ALRA.

The majority in the High Court (Kiefel CJ, Gageler and Keane JJ) dismissed the “apprehensions” that led the Full Court to its decision as not being “well founded”.

The majority noted that section 203B(3) of the NTA provides that, with limited exceptions, a representative body must not enter into an arrangement with “another person” under which the person is to perform the functions of the representative body. However, the majority relied on the reality that:

• none of the eligible bodies who could be representative bodies are natural persons; and
• that being the case, a number of provisions within the NTA recognised that representative bodies would have “organisational structures and administrative processes” through which natural persons or groups of natural persons perform the bodies’ functions,

in coming to the view that the reference in section 203B to “another person” (with whom the representative body could not enter into an arrangement to perform its functions) was not intended to be a reference to those natural persons who are members of the representative body (or of its executive) or other natural persons with authority to perform its functions within the organisational structures and administrative processes established under its “constating statute”. These natural persons are people acting within the scope of the authority conferred on them by the representative body (whether as delegates, or as agents or emanations of it).

The “another person” referred to was, instead and of necessity, a reference to people external to the organisational structures and administrative processes established by the representative body’s constating statute.

Importantly, however, the majority also found that section 203BK (which is one of the stated exceptions to section 203B(3)) did not itself empower a representative body to delegate. In other words, the delegation power had to be located in the representative body’s constating statute, and would not be found within the NTA.

Having found that that delegation was not prohibited by the NTA, the majority turned to consider whether the ALRA, as the NLC’s constating statute, did in fact include a delegation power that could extend to the NTA’s certification function.

In this regard, the majority noted:

• the broad power in section 27(1) of the ALRA for land councils constituted under that Act to “do all things necessary or convenient to be done for or in connexion with the performance of its functions…”; and
• the limited powers in section 28 of the ALRA for land councils to delegate their powers under the ALRA to their Chair, members or staff (or to a committee of the same).

The majority reconciled these two provisions, by reference to “well-established principles of statutory construction, by finding that:

• the general power in section 27(1) had to be read as excluding the specific powers to delegate functions under the ALRA that are the subject of section 28; and
• the unqualified reference in section 27(1) to the council’s “functions” had to be read as extending beyond the specific powers in section 28 to delegate functions under the ALRA to include functions conferred on a land council by or under another Commonwealth Act (including the NTA).

Having so found, the majority held that the reference in section 27(1) to things that are “necessary or convenient to be done for or in connexion with the performance of [a land council’s] functions” would include the delegation of the certification function to a member of its staff (which would facilitate the efficient performance of that function).

The majority concluded that, to the extent that section 27(1) encompasses a power to delegate the certification function to the CEO:

• any function performed by the CEO as delegate is deemed to have been performed by the land council (section 34AB(1)(c) of the Acts Interpretation Act 1901 (Cth) (AIA)); and
• where, as with certification, performance of a function is dependent on the land council’s opinion in relation to a particular matter, the CEO as delegate can perform the function on his or her own opinion in relation to the matter (section 34A of the AIA). 

The minority view

Justices Nettle and Edelman agreed with the majority that NLC could perform the statutory certification function through its CEO. However, their Honours argued that this was not tantamount to NLC being able to delegate the statutory certification function.

The minority in fact agreed with the Full Court that the NTA prohibited delegation of the certification function. However, the minority:

• noted that this prohibition did not prevent the NLC or any other representative body from authorising agents to perform the function on its behalf; and
• decided that the NLC had in fact not sought to (unlawfully) delegate the certification function, but had instead (permissibly) authorised the CEO to perform the function on its behalf.

The minority referred, in support of their view, to section 203FH of the NTA, which operates to impute to a representative body a state of mind formed, or conduct engaged in, by a director, employee or agent of a representative body acting within the scope of his or her actual or apparent authority. In doing so, the minority disagreed with the majority who had thought section 203FH was limited to the establishment of liability of a representative body.

In the end, however, the distinction between delegation and authorisation made no difference in the context of this decision. However, to avoid any complications in the future around whether there exists a specific power to delegate in a representative body’s constating statute, representative bodies and their advisers may consider it is more appropriate to ensure that their certification processes are carried out by their CEO as an emanation of the representative body or as its authorised agent, rather than as its appointed delegate.