Case: Kemp v Native Title Registrar [2006] FCA 939 ; (2006) 153 FCR 38
Outcome: distinguished
Both the Applicants' and QWI's submissions proceeded upon the assumption that it was s 251Athat fell for consideration in relation to "authorisation". The explanation given to cl 24CG(3)(b) in the explanatory memorandum to the Native Title Amendment Bill 1997 which, after further amendments not presently relevant were incorporated, became the Native Title Amendment Act 1998 (Cth), which inserted s 24CG and s 251A into the Native Tile Act , makes reference to "potential native title holders" and also makes reference to cl. 251A as supplying the method of authorisation. Finally, in Kemp v Native Title Registrar [2006] FCA 939 ; (2006) 153 FCR 38 , which was a case where the native title group included those who were but potential native title holders, Branson J and all parties to that case evidently proceeded upon the assumption that s 251A fell for consideration in relation to the authorisation of an ILUA. 62 The Applicants advanced a submission based on the proposition that s 251A was premised on the existence of a single community or other group and that the section could not apply if the community or group were not established on the evidence. Support for this submission was said to be found in the reasons for judgment of Branson J in Kemp v Native Title Registrar [2006] FCA 939 ; (2006) 153 FCR 38. It is true that, in that case, her Honour opined (at 47, [41]): 41 Section 251A is not intended to provide, and does not provide, a means whereby a single authorising decision can be obtained which is binding on two or more groups where their respective claims to hold native title in an area are in conflict. This can be seen from the reference in paragraph (a) to a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind. It is hard to imagine any such process of decision-making where the respective claims of two groups to hold the native title are in conflict; it would require traditional laws and customs in relation to jointly authorising things binding on the members of both groups. 63 The difficulty for the Applicants is that, as already noted, the Delegate found that Kabi Kabi, Gubbi Gubbi and other variant spellings were ways of naming one broader group of related persons who, together, assert native title interests in relation to the project area. That finding was open on the material before her. Kemp's case was decided against the different background of there being conflicting claimant groups, not one group in which there happened to be differing views. Kemp's case is thus distinguishable. 64 A noteworthy feature of Kemp's case is that it is not apparent that any of the parties drew her Honour's attention to a body of authority which had developed in relation to s 251B of the Native Title Act , which makes provision in terms analogous to those of s 251A for how "authorisation" by a "native title claim group" of a native title determination application or a compensation application or dealing with matters relating to the same is to occur. QWI referred me to certain of these authorities, one decided before Lawson's case, the other afterwards but which made reference to prior authority. This was in support of its submission that, on the evidence before her, the Delegate's finding that due "authorisation" of the Traveston Dam Agreement by the native title group had occurred was one open in law for her to reach. 65 A consideration of the authorities concerned is assisted by setting out the material provisions in the Native Title Act . Section 251B provides: 251B Authorising the making of applications For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind--the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process--the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. 66 Section 253 of the Native Title Act defines a "native title claim group" thus: native title claim group means: (a) in relation to a claim in an application for a determination of native title made to the Federal Court--the native title claim group mentioned in relation to the application in the table in subsection 61(1); or (b) in relation to a claim in an application for an approved determination of native title made to a recognised State/Territory body--the person or persons making the claim, or on whose behalf the claim is made. 73 The facts of this case make it unnecessary to decide whether and to what extent principles to be distilled from cases concerning s 251B are congruent with all of the observations made by Branson J in Kemp's case in relation to s 251A. 74 What is clear, having regard to the analogies to be drawn in relation to s 251A(b) from the case law in relation to s 251B(b) , is that the process which led up to the so-called "authorisation meeting" of 11 August 2007 was lawful, as was the process of decision-making at that meeting. The non-participation or, as the case may be, dissent of the Applicants did not affect the validity of the authorisation decision which was made in respect of the making of the Traveston Dam Agreement. There was evidence before the Delegate by reference to which she was entitled to conclude that the authorisation decision had been duly made and that each of the Applicants had been given a reasonable opportunity to participate in the adoption of a decision-making process and in the decision-making process itself. 75 There is no merit in grounds 1(a), 1(c), 1(e) and 1(f) of the application.