Hetherton, Phillipa --- "When is a Future Act a Future Act? Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v State of Queensland" [2001] IndigLawB 49; (2001) 5(9) Indigenous Law Bulletin 16

When is a Future Act a Future Act?

Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v State of Queensland

[2001] FCA 414
Full Court of the Federal Court of Australia
French, Merkel and Dowsett JJ
Appeal from the decision of Cooper J in Federal Court
11 April 2001

by Phillipa Hetherton

In the Lardil case, all three members of the Full Federal Court found that registration of a native title claim is not in itself sufficient to require governments to comply with future act processes. The decision upsets previous assumptions that registration would entitle a claimant group to certain ‘procedural rights’ where potential ‘future acts’ were being contemplated. The case thus has major implications for the degree of protection offered to registered native title claimants by so-called ‘procedural rights’. If states fail to comply with the future act processes set out under the Native Title Act 1993 (Cth) (‘the NTA’), native title claimants will now only be able to force compliance if the claimants can already prove the existence of their native title (or the existence of an arguable case for the existence of their native title).

The Background

The case arose when the Acting Regional Harbour Master for Cairns issued an authority (‘the authority’) to Pasminco Century Mine Ltd to lay a restricted buoy mooring within an area subject to a native title claim without notifying the native title claimants. The native title claimants sought to prevent the laying of the buoy mooring and sought a declaration from the Federal Court that the authority was invalid for non-compliance with the future act processes under Part 2, Division 3 of the NTA and under Queensland state laws. The claimants also sought final injunctions against Pasminco, the Regional Harbour Master and the Minister to prevent the laying of the buoy mooring without, amongst other things, complying with the future act processes under the NTA.[1]

The Decisions

The three judges dismissed the appeal in separate decisions.

The manner in which the native title claimants framed their claim for relief significantly influenced the decisions of the Court. The native title claimants sought final relief, not interlocutory relief in the context of the native title determination application. They claimed this relief on the sole basis that the registration of their native title claim gave them the benefit of the statutory future act processes. The native title claimants did not produce any evidence concerning the existence of native title.

What is a ‘future act’ and in what circumstances is a registered claimant entitled to procedural rights?

All three judges concurred that mere registration of a native title claim did not give rise to a right to the statutory procedural rights set out under Part 2, Division 3. Rather, whether native title claimants have a right to the statutory procedural rights depends upon whether the act proposed is in fact a ‘future act’ as defined by sections 233 and 227 of the NTA.

Section 233 provides that a future act is an act that ‘affects’ native title. Section 227 provides that ‘an act affects native title if it extinguishes native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.’ As Justice Merkel expressed it, ‘a future act is an act that affects native title and not an act that might affect native title.’[2] Consequently, in order to prove that the act in question was a future act, the native title parties would first be required to prove that they held a native title interest that could be so affected.

Furthermore, the Court held that as well as not giving rise to procedural rights in itself, mere registration will not normally be sufficient evidence of the existence of native title to ground a claim for final relief.[3] Justices French and Dowsett quoted the following passage from Fejo:[4]

But the Registrar’s administrative act of accepting an application does not put the question of title beyond debate on an application by a registered native title claimant for injunction or on an application to dismiss summarily an action instituted to obtain relief of that kind.[5]

Other relief

All three judges took pains to point out that even though a failure to comply with the future act processes would not entitle registered native title claimants to a right to final relief, it was open to the claimants to claim interlocutory forms of relief. Furthermore, while registration was not sufficient to ground a claim for any form of final relief,[6] in an action seeking interlocutory relief, passing the registration test might be valuable evidence for proof of the existence of native title or proof of an arguable case that native title exists.

Alternative claims that could have resulted in some form of interlocutory relief being granted were cited, including:

• challenging the validity of the authority in the context of the proceeding for a determination of native title and applying for interlocutory relief to maintain the status quo in respect of the authority pending that determination.[7]
• challenging the validity of the authority in a separate proceeding under the NTA, although this would have required that the applicants establish the existence of native title or of native title rights or interests that were affected by the authority, in order to establish that the grant of the authority was a future act.[8]

Consequences of non-observance of procedural rights – validity of future acts

While the question was not directly before the Court, Justices French and Dowsett considered whether failure to adhere to future act processes would result in a future act being invalid if it is later determined that a native title claim existed in the relevant area. They both held that the wording of the validating provisions in the NTA indicate that, except for those future acts attracting the ‘right to negotiate’, a failure to adhere to future act processes will not invalidate the future act. [9]

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[1] Specifically ss 24HA and 24NA.

[2] Merkel J at para 70.

[3] French J at para 60.

[4] Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96.

[5] French J at para 60.

[6] French J at para 60.

[7] Merkel J at para 71.

[8] Merkel J at para 71.

[9] French J at para 48, 58 and 62. Dowsett J at para 120.