Kemppi v Adani Mining Pty Ltd (No 2) [2019] FCAFC 117

FEDERAL COURT OF AUSTRALIA

Kemppi v Adani Mining Pty Ltd (No 2) [2019] FCAFC 117 Appeal from: Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245

File number: QUD 638 of 2018

Judges: RARES ACJ, ROBERTSON AND PERRY JJ

Date of judgment: 12 July 2019

Catchwords: NATIVE TITLE – statutory construction – subject matter of judicial review of administrative decision-making – where representative body certified area ILUA under s 203BE(1)(b) of the Native Title Act 1993 (Cth) – whether challenge to s 203BE(1)(b) certificate possible after Registrar determines under s 24CK to register area indigenous land use agreement (ILUA) – where objectors exercised right to object to registration of agreement on Register of Indigenous Land Use Agreements under s 24CI – where application to register area ILUA included certification by representative body of its opinion under s 203BE(1)(b) that requirements of pars (a) and (b) of s 203BE(5) had been satisfied – where Registrar required under s 24CK(1) to register agreement if satisfied that two conditions met – where objectors alleged that first condition not met because requirements in pars (a) and (b) of s 203BE(5) not satisfied – where Registrar satisfied under s 24CK that both conditions met – where objectors did not challenge Registrar's decision before primary judge but only representative body's certificate NATIVE TITLE – statutory construction – where application made under s 24CG of Native Title Act to register area ILUA on Register of Indigenous Land Use Agreements – where application accompanied by agreement providing written description and map of "Surrender Zone" within which parties proposed to later identify particular areas where some or all native title rights would be surrendered – whether requirement in regs 5 and 7(2)(e) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) that application for registration be accompanied by document including "complete description" of the area in which rights are to be surrendered requires description of exact areas to be surrendered NATIVE TITLE – statutory construction – where representative body must not certify agreement under s 203BE(5) unless of opinion that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in area covered by the agreement have been identified and all persons so identified have authorised the making of the agreement – whether "may hold" should be given inclusive and expansive meaning or exclusive and rigorous meaning – whether representative body required to assess every person attending authorisation meeting to assess whether he or she was a member of native title group