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Native title – delegation of functions – delegation and agency – what’s the difference? Quite a lot according to Nettle and Edelman JJ

In Northern Land Council & Anor v Quall & Anor [2020] HCA 33 (7 October 2020) the High Court was required to consider whether the North Land Council (NLC) has the power to delegate to its chief executive officer the function, conferred on it by s203BE(1)(b) of the Native Title Act 1993 (Cth) (NT Act), of certifying applications for registration of Indigenous land use agreements (ILUAs).

ILUAs are voluntary agreements between a native title group and others on the use of land or waters. Future acts that affect native title rights and interests (such as, for example, the grant of a mining tenement or the compulsory acquisition of land) are invalid unless they are permitted under an ILUA that is registered on the Register of Indigenous Land Use Agreements.

One requirement for making an application for registration of an ILUA concerns the identification of people who may hold native title rights, in respect of the area affected by the ILUA, and the authorisation, by those people, of the ILUA.

Under the NT Act this requirement can be met in two ways. One way is by obtaining a certification of the application by all representative bodies for the area in the performance of their functions under s203(1)(b) of the NT Act (certification function). Under the NT Act a ‘representative body’ is defined as a body corporate recognised by the Minister to be a representative body for an area.

Section 203BE(5) of the NT Act provides that a representative body must not certify an ILUA unless it is of the opinion that it has made all reasonable efforts to identify people who hold native title rights in relation to the area covered by the ILUA and that those people authorise the making of the ILUA.

Relevant to the carrying out of the certification function, s203BK of the NT Act provides that a “representative body has power to do all things necessary or convenient to be done for or in connection with the performance of its functions”. And s203FH provides that the state of mind of a Land Council is the state of mind of its employees or agents and the conduct of employees and agents will be deemed to be the conduct of the representative body.

The NLC is a representative body. The NLC is one of a number of Land Councils established under Part III of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act). Each Land Council represents Aboriginal and/or Torres Strait Islander bodies in a particular area.

The Land Council is a body corporate. The functions of the Land Council are set out in Part III of the ALR Act. The members of the Land Council consist of Aboriginal people who have been chosen in accordance with a method approved by the Minister. Section 203BK of the NT Act is mirrored in s27(1) of the ALR Act, which provides that a Land Council may “do all things necessary or convenient to be done for or in connection with the performance of its functions and, without limiting the generality of the foregoing may: (a) employ staff…”

Sections 28(1) and (2) specifically provide that a Land Council may delegate to a member of its staff, among others, any of the Land Council’s functions or powers under the ALR Act other than those specifically excluded under the provision (which does not include the certification function).

In 2016, the NLC made an ILUA in relation to land and waters at the Cox Peninsula near Darwin. In February 2017, the ILUA was varied (Kenbi ILUA). In March 2017, the CEO (employed by the NLC as a member of its staff) signed a certificate purporting to act as a delegate of the NLC (Kenbi Certificate).

The Kenbi Certificate stated that the NLC had certified the application for registration of the Kenbi ILUA, pursuant to s203BR(1)(b) of the NT Act, and that the requirements set out in s203BE(5) had been met.

Mr Quall and Mr Fejo commenced judicial review proceedings in the Federal Court challenging the Kenbi Certificate on two, alternative, grounds. First, they argued that the NLC could not delegate its certification function. Second, they argued that, if the certification function was delegable, it had not been validly delegated by the NLC to the CEO.

The primary judge rejected the first ground of review but accepted the second. Accordingly, the primary judge declared the Kenbi Certificate did not amount to certification pursuant to s203BE(1)(b) of the NT Act.

The NLC and CEO appealed to the Full Court of the Federal Court in respect of the primary judge’s finding that the NLC had not validly delegated its certification function to the CEO.

Mr Quall and Mr Fejo brought a cross-appeal in which they challenged the primary judge’s finding that the NLC’s certification function was delegable. The Full Court allowed the cross-appeal, making it unnecessary to consider the NLC and CEO’s appeal.

The NLC and CEO then appealed to the High Court. Given the importance of the issues to be determined in the appeal, the Attorneys-General of the Commonwealth and the Northern Territory intervened.

The High Court unanimously allowed the appeal but was divided into two different camps in respect of its reasons: the ‘delegation camp’ (Kiefel CJ and Gageler and Keane JJ) and the ‘agency camp’ (Nettle and Edelman JJ).

The delegation camp noted at [65] the presumption of statutory interpretation that a statutory function is to be performed only by the statutory repository of the function, and no one else, unless otherwise indicated in the statute (being the maxim delegatus non potest delegare).

The delegation camp considered at [66]-[69]) that ss27 and 28 of the ALR Act and ss203BK and 203FH of the NT Act (and the fact that a representative body is a body corporate) indicated that a representative body had the power to delegate the certification function if it was objectively necessary or convenient to the performance of the function. The delegation camp remitted the matter to the Full Court to determine whether the NLC had validly delegated its certification function to the CEO.

Conversely, the agency camp considered at [78] that the certification function was “almost a textbook example of functions that would be non-delegable by implication”. The agency camp also considered at [78] that delegation of the certification function was expressly prohibited by s203B(3) of the NT Act which provided “… 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”.

But the agency camp reasoned that the power to act personally through an agent was an entirely different matter to a delegation. Conceding that the terms ‘agency’ and ‘delegation’ were confusingly similar, and often used interchangeably, the agency camp noted at [77] that “they connote different sources of validity for acts”.

The agency camp points out at [77] (and [81]-[85]) that an “agent, in a strict or precise sense, acts on behalf of another and generally in the name of that other. The agent’s acts are attributed to the other. A delegate, in a strict or precise sense, acts on their own behalf and generally in their own name”.

The agency camp notes at [93] that, given the representative body’s multitude of functions it is a matter of practical necessity that those functions be performed by agents and at [97] that there was no justification for treating the certification function any differently.

The agency camp remitted the matter to the Full Court to determine whether NLC’s constitutive statutes and instruments permitted the CEO to act as agent for the NLC in respect of its certification of the Kenbi ILUA and signing the Kenbi Certificate.

Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary and regulatory law, 03 9225 8722, msharpe@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au.

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