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Editors --- "Central Queensland Land Council Aboriginal Corporation v Attorney-General of the Commonwealth of Australia and State of Queensland - Case Summary" [2002] AUIndigLawRpr 27; (2002) 7(2) Australian Indigenous Law Reporter 17

Court and Tribunal Decisions - Australia

Central Queensland Land Council Aboriginal Corporation v Attorney-General of the Commonwealth of Australia and State of Queensland

Federal Court of Australia (Wilcox J)

8 February 2002

[2002] FCA 58

Constitutional law — whether amendments to the Queensland Mineral Resources Act 1989 (Qld) are invalid because of failure to satisfy s 24M(A) of the Native Title Act 1993 (Cth) or are inconsistent with the Racial Discrimination Act 1975 (Cth)

Native title — future acts — determinations by a Commonwealth Minister — whether decisions to make determinations were decisions of an ‘administrative character’ reviewable under Administrative Decisions (Judicial Review) Act 1977 (Cth) — validity of determinations — whether Commonwealth Minister entitled to take into account Queensland legislation enacted but not yet in force — whether provisions in three statutes are a ‘law of a State’ — significance of statutory reference to ‘particular’ land or waters

Facts:

An application was made to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and the Judiciary Act 1903 (Cth) by the Central Queensland Land Council Aboriginal Corporation seeking a review of the Attorney-General of the Commonwealth’s (the Commonwealth Minister) decision to make seven determinations under the Native Title Act 1993 (Cth) (the NTA) in respect of specified mining activities undertaken pursuant to rights conferred by the Mineral Resources Act 1989 (Qld) (the Mineral Resources Act). The application was subsequently amended, asserting that amendments to the Mineral Resources Act were invalid because they fail to satisfy s 24MA of the NTA (relating to future acts), they are inconsistent with the Racial Discrimination Act 1975 (Cth) (the RDA) and they are therefore invalid pursuant to s 109 of the Commonwealth of Australia Constitution.

The Commonwealth Minister’s determinations were made on 26 May 2000 and the amendments to the Mineral Resources Act came into full operation on 18 September 2000.

The Queensland Attorney-General intervened in order to put submissions to the Court regarding the validity of the statutory amendments and the State of Queensland was joined as second respondent.

Held:

1. In determining what amounts to a ‘future act’ under s 233 of the NTA, the question is the effect it has on native title holders’ common law rights. The amendments to the Mineral Resources Act do not amount to future acts and none of the amendments are invalid for failure to satisfy s 24MA of the NTA: [47].

2. Pursuant to s 7(3) of the NTA, the RDA does not affect the validation of past acts in accordance with the NTA and accordingly it does not invalidate the Native Title (Queensland) Act 1993 (Qld). There is no inconsistency between the amendments to the Mineral Resources Act and the RDA: [51].

3. The Commonwealth Minister’s decisions to make the determinations were decisions of a legislative nature, rather than administrative decisions and therefore the ADJR Act is not available as a basis to challenge the validity of the decisions: [59]-[60]. RG Capital Radio Limited v Australian Broadcasting Authority [2001] FCA 855 considered.

4. A decision about the making of a determination under s 26A or s 43 of the NTA is a decision as to the legal regime that will govern any future act, falling within s 24MB, that is covered by the prospective determination: [69].

5. The final clause of s 43(1) of the NTA confirms that Parliament contemplated an operative State or Territory law. There can only be certainty about the matter if the State legislation is already in operation when the s 43 determination is made. Section 26A of the NTA is not conditioned on there being a law of the relevant State or Territory that provides an alternative regime and it is therefore not a requirement that the State or Territory law is operative before a s 26 determination is made. On this basis, each of the s 26 determinations of the Commonwealth Minister is valid, and each of the s 43 determinations of the Commonwealth Minister is invalid: [91], [94].

6. Section 23(b) of the Acts Interpretation Act (1901) (Cth) must be applied to the question of whether provisions in three statutes may be a ‘law of a State’. There is no express or implied exclusion of s 23(b) arising out of particular words in the NTA or policy considerations: [105].

7. Section 26A of the NTA is ambiguous as to the degree of particularity required by the phrase ‘particular land and waters’. As such, the Explanatory Memorandum may be used as an indication that it is not necessarily essential for the Commonwealth Minister to identify, or be able to identify, each parcel of land to which the proposed determination would apply: [148]-[149]. CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 applied. ?