which represented “a healthy enough segment of the Noongar population to give reliable indication by the Noongar people towards the Settlement”.12 The Court also noted that some of the results were close, as between those who voted for and those who voted against authorisation,13 but did not accord that any particular significance.
Location and prisoners The Court noted that Rares J found in Weribone on behalf of the Mandandanji People v State of Queensland14 that objections based on the location of a meeting would be an insufficient basis on which to invalidate a meeting and that the Registrar had noted that “SWALSC offered reasonable transport services to enable people to travel to and from the meetings”, “reasonable opportunities for accommodation” and “early notification” so as to ensure adequate time to organise a trip to the meeting,15 and convened information facilities with penal facilities and efforts by SWALSC to inform the community were “sufficient to apprise Noongar prisoners and their families of the meetings and have an opportunity to discuss their views on the settlement and make arrangements for eligible family members to attend the meetings and participate”.16 The Court noted that the Registrar found an analogy with the conclusion of Cooper J in Dingaal Tribe v State of Queensland and Ors17 that those present at the meeting were apprised of the situation (including that no women’s prisons were visited) and still decided to continue with the meeting and make decisions.18
Meeting on country The Court found that the argument of the McGlade Applicant that the Registrar erred by failing to take into account an alleged fact that the native title holders were misled that the only process by which an ILUA could be authorised was by voting in person at a meeting “on country”19 failed because it was not a fact the Registrar was required to take into account.20 The Court adopted the view of White J in Bright21 that ss 24CK(2)(c) and 203BE(5) of the NTA require the Registrar to consider whether “all reasonable efforts” have been made to identify all persons who hold or may hold native title ad whether they have authorised
the ILUA.22 The Court concluded that it was open for the Registrar to conclude that SWALSC believed that the appropriate way to achieve the objectives of the NTA was for people to meet in person on country.23
Invitation to all native title holders The McKay Applicant group contended that the native title the subject of all ILUAs was, as SWALSC relied on and Wilcox J found in Bennel v Western Australia,24 a native title held by the Noongar people in relation to the whole of the Noongar settlement area and that the invitations to the several areas of the ILUAs was not an invitation to all the Noongars who held that single title, so all native title holders did not have an opportunity to authorise the ILUAs. The Court found that the meeting notices were addressed to those “who assert native title rights and interests” and so the contention was based on a mistaken factual premise that the invitations were only to descendants of particular ancestors of the Noongar people.25 The Court also noted that the Miller objection to the Registrar to similar effect to the ground which the McKay Applicant relied on had been considered and not accepted by the Registrar.26 The Court noted that – In any event, the evidence has always been that not every Noongar has rights over the totality of the Settlement Area.27
Delegation of certification: Quall The Court noted that in Northern Land Council v Quall28 the Aboriginal Land Rights (Northern Territory) Act s 28 conferred an express power of delegation but it did not apply to the certification functions of the NLC under s 203BE of the NTA.29 The Court found that the SWALSC, as a Corporation under the Corporations (Aboriginal and Torres Strait Islanders) Act s 274-10 and its Rules may delegate its powers to “an employee” or “any other person”, but concluded that such a corporation performs its functions “through its directors and/or its authorised employees and agents… irrespective of whether the directors delegate a power to an employee or agent such as the CEO”.30 The Court noted that if it is necessary to establish the state of mind of a body corporate
it is sufficient to show that the conduct was engaged in by a director, employee or agent was acting within the scope of his or her authority.31 The Court found that the SWALSC Board had “extensive involvement in the negotiation of the ILUAs”32 and it was proper to infer that the Directors had formed the opinion that the requirements of s 203E(5) had been satisfied.
Conclusion Overall the Court in in McGlade (No 2) was prepared to interpret and apply the law and make findings in relation to the facts which took into account the complexity of the process of arriving at authorisation by a claim group of an ILUA, and applied a measure of pragmatism which some might say was not so evident in the conclusion of the Court in McGlade (No 1)33, which required a legislative solution. The full judgment is available at: https://www.austlii.edu.au/ cgi-bin/viewdoc/au/cases/cth/ FCAFC/2019/238.html Endnotes 1
2 3
4 5 6 7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33
Bennell v Western Australia (2006) 230 ALR 603, per Wilcox J at 841-848; SWALSC, John Host and Chris Owen, It’s Still in My Heart, This is My Country: The Single Noongar Claim History (UWA Press, 2009). Bodney v Bennell [2008] FCAFC 63, per Finn, Sundberg and Mansfield JJ at 79-82, 167 and 185. Glen Kelly and Stuart Bradfield, ‘Winning Native Title, or Winning Out of Native Title? The Noongar Native Title Settlement’ (2012) 8(2) Indigenous Law Bulletin 14. (2008) 173 FCR 150 at [71] and [26]. In accordance with the Native Title Act 1993 (Cth) (“NTA”), s 26CG(3)(b)(ii). McGlade v South West Land & Sea Council Aboriginal Corporation (No 2) [2019] FCAFC 238 (“McGlade (No 2)”) at [33], [34], [181]. Fesl at [71]; McGlade (No 2) at [34]. McGlade (No 2) at [181], referencing Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantji) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [25]. McGlade (No 2) at [184]. [2018] FCA 752, at [132]. Pursuant to the NTA s 203BE(5). McGlade (No 2) at [61]. McGlade (No 2) at [87]. [2013] FCA 255; McGlade (No 2) at [68]. McGlade (No 2) at [69]. McGlade (No 2) at [78], [177], [178]. [2003] FCA 999; McGlade (No 2) at [80]. McGlade (No 2) at [177], [178]. McGlade (No 2) at [37]. McGlade (No 2) at [150], [151], [153]. At [128]. McGlade (No 2) at [151]. McGlade (No 2) at [161]. (2006) 153 FCR 120. McGlade (No 2) at [221], [235]-[236]. McGlade (No 2) at [231]. McGlade (No 2) at [233]. [2019] FCAFC 77. McGlade (No 2) at [249]. McGlade (No 2) at [329]-[330]. McGlade (No 2) at [333]. McGlade (No 2) at [338. McGlade v Native Title Registrar (2017) 251 FCR 172; [2017] FCAFC 10.
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