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23 Dec 11
Providing clarity on 'authorisation' of Indigenous Land Use Agreements

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Introduction

The recent Federal Court decision on the authorisation of Indigenous Land Use Agreements (ILUA) (QGC Pty Limited v Bygrave [2011] FCA 1457) has made clear the obligations of a proponent to identify and ensure authorisation by the relevant native title parties for the registration of Agreement.

On 16 December 2011, Justice Reeves granted a judicial review application lodged by QGC Pty Limited (QGC), finding that the delegate for the Registrar of Native Title (Registrar) had erred in law by refusing to register the ILUA between QGC and the Bigambul Registered Native Title claimants (QGC-Bigambul ILUA). 

The Native Title Act 1993 (Cth) (NTA) creates two separate categories of persons that comprise native title groups for different purposes under the NTA.  Accordingly, a proponent must identify all persons or groups which could be reasonably considered to hold native title rights and interests in the area.  However, only registered native title claimants for the area are required to ‘authorise’ the agreement in order for the ILUA to be registered.

The Issue

McCullough Robertson represented QGC in QGC Pty Limited v Bygrave [2011] FCA 1457.

An ILUA had been successfully negotiated between QGC and the Bigambul People over the Bigambul People native title claim area for QGC’s Queensland Curtis LNG Project.  A resolution was passed by the Bigambul Registered Native Title claimants (Bigambul Claimants) in a public meeting held in December 2009 to authorise the making and registration of the QGC-Bigambul ILUA (Agreement).  The Bigambul People native title claim was the only registered native title claim at the date of the authorisation meeting. 

Members of the Kamilaroi/Gomeroi People were also present at the meeting, but some did not participate in the resolutions that were passed.

In July 2010 QGC applied to the Registrar to have the Agreement registered on the register of ILUAs.  The Agreement was publically notified for a period of three months in accordance with the statutory process prescribed under the NTA.  During the notification period, objections to registration were made on behalf of certain Kamilaroi/Gomeroi People, on the grounds that the Kamilaroi/Gomeroi People held native title rights and interests in the area. However, at the end of the notification period the Bigambul People native title claim remained the only registered native title claim in the Agreement area. 

In these circumstances, the NTA requires that the Registrar be satisfied of the following prior to registering an area ILUA: 

  • that all registered native title claimants in the area are parties to the agreement (the delegate found that this requirement was met)
  • that the steps taken towards reaching agreement included appropriate steps to identify all persons who hold or may hold native title in the area (the delegate found that this requirement was met), and
  • that the people identified through that process had authorised the making of the agreement (the delegate found that this requirement was not met).

The delegate accordingly refused to register the QGC-Bigambul ILUA on the grounds that QGC had not complied with the final requirement above., concluding that the Kamilaroi/Gomeroi People were a separate group which had more than a ‘merely colourable claim’ to native title in the area and that the group had not authorised the Agreement in a separate authorisation process.

The delegate relied on the decision of Justice Branson in Kemp v Native Title Register (2006) 153 FCR 38 (Kemp) in determining that the Kamilaroi/Gomeroi People were a separate and conflicting native title group and therefore were required to authorise the Agreement in a separate authorisation process. 

QGC brought an application for judicial review of the decision in the Federal Court of Australia.  That application was supported by the other party to the Agreement, the Bigambul Claimants.

The decision

QGC was successful in its judicial review application.

His Honour Justice Reeves agreed with QGC that the present case is to be distinguishable with the facts in Kemp.  His Honour found that the ‘not merely colourable test’ applied in Kemp ought not have been applied to the QGC-Bigambul ILUA.

His Honour also provided further clarity on the requirements of the NTA and held that:

  • the process of registration for an ILUA under the NTA establishes two separate groups whose membership is defined by different criteria
  • the first group, which must be ‘identified’ refers to persons ‘who hold or may hold native title’ in the area and this is to be construed expansively and inclusively.  This includes any 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
  • the second group who must ‘authorise’ the ILUA refers to persons ‘who hold or may hold the common or group rights comprising the native title.’  This is a confined and exclusive group and refers only to registered native title claimants, and 
  • the ‘identified group’ and the ‘authorising group’ have different rights in respect to the ILUA process.

His Honour therefore concluded that:

  • QGC had complied with the requirements of the NTA and all persons ‘who hold or may hold native title’ had been identified and the relevant parties had authorised the Agreement in the process prescribed under the NTA
  • the Kamilaroi/Gameroi People are not registered claimants and therefore are not able to insist on a separate authorisation process, and
  • it was not necessary for the purposes of the judgment to consider how the authorisation process under section 251A NTA would operate where two or more conflicting groups have duly registered claims over the same area of land.

His Honour found that the Delegate had erred and that relief ought to be granted in favour of the QGC-Bigambul ILUA.

Implications for native title parties and proponents

The negotiation, authorisation and registration of an ILUA can be costly and time consuming.  Ensuring the correct parties have been identified and the agreement has been ‘authorised’ by the manner prescribed under the NTA is important to avoid further costs and delays.  This decision by His Honour Justice Reeves provides clarity regarding the proponent’s obligations under the NTA. 

The situation remains that, when entering into an area ILUA, a proponent must identify and provide notification of the intention to enter into the ILUA to any person whom it is reasonable to conclude may hold native title rights or interests in the agreement area.  This includes any persons or groups with unregistered native title claims and any group making informal claims to native title in the area.

However, the salient implication from His Honour’s decision is that only registered native title claimants are required to ‘authorise’ the agreement under either of the decision making processes described in section 251A NTA.

It is also important to note that the decision does not overrule the finding of Justice Branson in Kemp.  His Honour Justice Reeves did not make any ruling regarding the manner of authorisation required when there is more than one registered native title claim group in the area. 

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication. 

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