Native Title - High Court clarifies ability of representative bodies to delegate their functions

On 7 October 2020 the High Court overturned an earlier decision by the Full Federal Court that the Northern Land Council could not delegate its function of certifying applications for registration of indigenous land use agreements (ILUAs) to its chief executive officer (CEO).

The High Court’s decision clarifies how representative bodies can certify ILUA registration applications and will allow representative bodies to continue performing their certification functions efficiently.

The Native Title Act 1993 (Cth) (Native Title Act) confers various functions on representative Aboriginal/Torres Strait bodies (representative bodies), including the function of certifying applications to register area ILUAs relating to land and waters within their representative areas. In order to certify an ILUA registration application, the representative body must be satisfied that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to the land and waters covered by the proposed ILUA have been identified and that those persons have authorised the making of the agreement.  Whether or not an ILUA registration application is certified by a representative body determines the process of objecting to registration and the matters the Native Title Registrar must consider in deciding whether to register the ILUA or refuse the application.

Quall^[1] concerned the exercise by the CEO of the Northern Land Council, which is a representative body, of the ILUA certification function, exercising power delegated to him by the Council.  Mr Quall challenged the certification, arguing the Northern Land Council was not able to delegate its ILUA certification function, or that if it was able to, the particular delegation relied on in this instance was invalid.

The Full Court found that the certification function had a particular importance under the Native Title Act for reasons including that the registration of ILUAs can have long term impacts on the rights and interests of native title holders. This combined with the absence of an express power under the Native Title Act to delegate representative body functions, indicated that the Commonwealth Parliament intended that only representative bodies could perform this ILUA certification function. Accordingly, the Full Court held that the delegation to the Northern Land Council’s CEO was ineffective and that only the full membership of the Council could certify ILUAs.  The decision created considerable uncertainty for representative bodies, because of the practical difficulty of convening a full meeting of bodies structured similarly to the Northern Land Council each time an ILUA is sought to be registered.  In addition, the Full Court’s decision left unclear how representative bodies that are corporations, as opposed to statutory bodies, could perform the ILUA certification function.  The uncertainty caused a number of representative bodies to cease performing the function at all.

On appeal, all five members of the High Court agreed that the Full Federal Court was incorrect, but the Court was divided on the reasons for that conclusion.  The majority of the Court, consisting of Chief Justice Kiefel and Justices Gageler and Keane, considered that the Full Court went too far in deciding that representative bodies can never delegate the ILUA certification function. The majority said that the Full Court had relied on a superseded understanding of what a representative body is under the Native Title Act. While the original provisions had focused on representative bodies being representative of the Aboriginal and Torres Strait Islanders in the area, subsequent amendments to the Act had broadened the range of bodies eligible to become representative bodies. The Full Court also failed to consider the range of organisational structures and administrative processes which enable representative bodies to perform their functions.   The sections of the Native Title Act that relate to the structures and processes of representative bodies indicate that the Commonwealth Parliament intended that those functions were to be able to be performed by persons at other levels within the organisation structure.

Importantly, however, the majority found that the Native Title Act itself does not provide the source of power for a representative body to delegate its functions.  While the Act does not preclude the performance of delegated functions, the power to delegate must come from an external source.  In the case of the Northern Land Council, the power to delegate was conferred under the Council’s establishing Act, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

Justices Nettle and Edelman agreed that the Northern Land Council could exercise the ILUA certification function through its CEO, but said this was on the basis that the CEO was acting as the Council’s agent, rather than its delegate.

The effect of the High Court’s decision is to clarify that for representative bodies that are statutory bodies corporate, the ILUA certification function can be delegated provided that it has an express power to delegate, whether under its establishing legislation or from some other source.  While the majority of the High Court did not directly find that representative bodies that are corporations under the Corporations Act 2001 (Cth) or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) can perform the ILUA certification functions through their officers, it appears reasonable to infer from their reasons, as well as from the reasons of the minority, that this can occur.

The High Court’s decision hopefully opens the way for representative bodies to resume certifying ILUA registration applications, reducing some of the complexities that can otherwise arise in the registration process.

_{[1] Northern Land Council v Quall [2020] HCA 33.}