NATIVE TITLE

In Northern Land Council v Quall [2019] FCAFC 77, the Full Court of the Federal Court of Australia (Griffiths and White JJ, Mortimer J concurring) clarified the identity of the entity that is empowered to certify an application for an indigenous land use agreement (area agreement) for the purposes of s 24CG of the Native Title Act 1993 (Cth).  The section makes such certification a precondition to the registration of such an agreement by the Native Title Registrar.  The CEO of the Northern Land Council had purported to sign a certificate to that end, but the Full Court made clear the proper construction of the statute did not permit the “representative body”, which is referred to in s 24CG, to delegate its certification function to one of its officers.

The key passage in the reasons of Griffiths and White JJ is at [136]:

“… while the [representative body] is able to obtain assistance from its staff (including its CEO), as well as external service providers, in the performance of its certification functions under s 203BE(1)(b), it cannot delegate or otherwise “outsource” the actual performance of those functions. In particular, it is the [representative body’s] opinion (and not someone else’s) on the matters specified in the certification under s 203BE(1)(b) which counts. The [representative body] can obtain assistance in relation to the gathering of information and material upon which the formation of the requisite opinion may be based but, ultimately, it is the [representative body] which has to be satisfied on the basis of all relevant material available to it that it is in the position to give its opinion on the relevant matters.”