Chief Executive of the Department of Natural Resources, Mines, Manufacturing and Regional and Rural Development v Torres Strait Island Regional Council [2025] QCA 176

SUPREME COURT OF QUEENSLAND CITATION: Chief Executive of the Department of Natural Resources, Mines, Manufacturing and Regional and Rural Development v Torres Strait Island Regional Council [2025] QCA 176 PARTIES: CHIEF EXECUTIVE OF THE DEPARTMENT OF NATURAL RESOURCES AND MINES, MANUFACTURING AND REGIONAL AND RURAL DEVELOPMENT (appellant) v TORRES STRAIT ISLAND REGIONAL COUNCIL (first respondent) MAGANI LAGAUGAL (TORRES STRAIT ISLANDERS) CORPORATION RNTBC ICN 401 (second respondent) FILE NO/S: Appeal No 1637 of 2025 SC No 582 of 2024 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Cairns – [2025] QSC 58 (Henry J) DELIVERED ON: 19 September 2025 DELIVERED AT: Brisbane HEARING DATE: 18 August 2025 JUDGES: Brown and Doyle JJA and Sullivan J ORDERS: 1. The appeal is allowed, and the declaration made by the primary judge is set aside. 2. It is declared that the conduct or proposed conduct of the appellant, to request or recommend that the Minister give a direction for the preparation of a deed of grant separately in relation to each of Lots 50, 63, 96, 97 and 104 on SP270867 with the second respondent appointed as grantee to hold it for the native title holders the subject of the Federal Court determination made 13 December 2004, is conduct for the purposes of making a decision of a kind not permitted by sections 34 and 35 of the Act. 3. The appellant pay the first respondent’s costs of the appeal. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – -- 1 of 23 -- 2 REVIEWABLE CONDUCT – where an application for a determination of native title was brought in the Federal Court of Australia in respect of the whole of Iama Island in the Torres Strait save for certain specific lots – where a determination was made that native title exists in relation to the land and waters described in Schedule 1 to that determination – where the second respondent is the registered native title body corporate for that determination – where the appellant had formed the view that the responsible Minister could and should appoint the second respondent as the grantee of a number of individual grants of lots of land on Iama Island – where the second respondent would be appointed to hold each of the grants for the native title holders of the land if the Minister were to make the proposed grants – where some of the grants proposed to be made are of lots where no part of the lot is land over which native title has been determined to exist – where the first respondent sought review of the appellant’s conduct pursuant to s 21 of the Judicial Review Act 1991 (Qld) – where the primary judge found that while the application could be said to be premature, the issue raised was substantive as to whether the Minister had authority to make a decision in accordance with the intended request from the appellant – where the appellant now urges in substance that what was proposed by that conduct is outside of the scope of ss 34 to 36 of the Torres Strait Islander Land Act 1991 (Qld) (the Act) – whether the proposed conduct of the appellant to request or recommend that the Minister give a direction for the preparation of certain deeds of grant with the second respondent appointed as grantee to hold the land for the native title holders is conduct for the purposes of making a decision of a kind not permitted by ss 34 and 35 of the Act ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – NATIVE TITLE – PERMISSIBLE FUTURE ACTS – where, by s 34 of the Act, the chief executive must prepare such deeds of grant in fee simple as the Minister considers necessary and directs over transferable lands – where the primary judge determined that all of the land the subject of the appellant’s proposal is ‘transferable lands’ – where the primary judge also determined that s 34 permitted the making of grants of individual lots or combination of lots – where s 35 of the Act applies to transferable land if a determination has been made that native title exists in relation to all or part of the land and there is a registered native title body corporate for the determination – where the primary judge found that s 35(1)(a) is only satisfied if it can be said that the area of land of which the grant is to be made is transferrable land, within the description of the parcel of land the subject of the native title determination made at the time it was made and that a determination was that native title existed as to some part of the parcel so described – where the primary judge found, on the basis of this construction, that s 35(1) involves a temporal -- 2 of 23 -- 3 anchoring connection between the land it refers to and the determination that was made – where the primary judge determined, and the parties agree, that the application of s 35 is to be determined on a grant-by-grant basis – where the second respondent contends on appeal that the expression ‘the land’ in s 35(1) means the land which was the subject of the determination – where the appellant and the first respondent contend that ‘the land’ denotes the land the subject of each deed of grant – where the appellant also submits that s 35(1) implies a further requirement that the land that is to be the subject of the deed of grant “falls within the external boundaries of the area of land the subject of the determination” – whether the primary judge erred in finding that s 35(1)(a) involves a temporal anchoring connection Acts Interpretation Act 1954 (Qld), s 14, s 14B Judicial Review Act 1991 (Qld), s 21 Native Title Act 1993 (Cth) Torres Strait Islander Land Act 1991 (Qld), s 8, s 9, s 10, s 34, s 35, s 36 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, applied COUNSEL: N Kidson KC, with R Berry, for the appellant M A Jonsson KC, with J McDiarmid, for the first respondent D Yarrow SC for the second respondent SOLICITORS: C E Christensen, Crown Solicitor, for the appellant Moray & Agnew Lawyers for the first respondent Susan Walsh, Baradharaw Kod Torres Strait Sea and Land Council for the second respondent [1] BROWN JA: I agree with Doyle JA. [2] DOYLE JA: This appeal raises questions as to the proper construction of the Torres Strait Islander Land Act 1991 (Qld) (the Act).1 [3] The appellant is the Chief Executive of the Department of Natural Resources, Mines, Manufacturing and Regional and Rural Development (Chief Executive). Certain conduct involving conduct of the Chief Executive was the subject of the application for judicial review. The Chief Executive had formed the view that the responsible Minister could and should appoint the second respondent, the Magani Lagaugal (Torres Strait Islanders) Corporation (the Magani Lagaugal Corporation) as the grantee of a number of individual grants of lots of land on Iama Island in the Torres Strait. The primary judge identified a total of 114 lots spread across six survey plans as being those to be the subject of those proposed grants. Only 6 of these lots are the direct focus of this appeal. [4] The approach taken by the Chief Executive has shifted since the conduct was engaged in. The Chief Executive now urges in substance that what was proposed by that conduct is outside of the scope of ss 34 to 36 of the Act. 1 The language of the Act is in material respects the same as that used in the Aboriginal Land Act 1991 (Qld). -- 3 of 23 -- 4 [5] The first respondent, the Torres Strait Island Regional Council (the Regional Council), has a possibly divergent interest to, and has adopted a position inconsistent with that of, the Magani Lagaugal Corporation and, at least in some respects, supporting the current approach of the Chief Executive. Background [6] On 18 June 1996 an application was made for a determination of native title in accordance with the Native Title Act 1993 (Cth). [7] The application before the Federal Court encompassed the whole of Iama Island save for certain specific lots which were excluded most probably because any native title had been extinguished in respect of them. [8] On 13 December 2004 Justice Cooper of the Federal Court of Australia made a determination, the effect of which was set out by the primary judge, and which in terms of the description of the land, reflected the form of the application. The primary judge set out the relevant parts of the determination as follows – “[57] The Court satisfied itself, as was its independent obligation, that the consented-to orders and determinations should be made. The orders made contained various details, the presently relevant order being order 1: ‘Native title exists in relation to the land and waters described in Schedule 1 and shown on the plan in Schedule 2 (“the determination area”).’ [58] The Schedule 2 plan reflected the Schedule 1 description of the determination area, which was: ‘SCHEDULE 1 DETERMINATION AREA The land and waters on the landward side of the High Water Mark of: (a) Lot 13 on Plan TS177 being part of the island referred to as Yam Island excluding the areas described as: (i) Lots 4-6 on Plan AP9680; and (ii) Lease A on Deposited Plan 149845 in Lot 13 on Plan TS177; …………. Lot 14 on Plan TS178, Lot 1 on Plan TS362, Lot 50 on Plan TS283, Lot 2 on Plan TS117, Lots 4-6 on Plan AP9680, Lease A on Deposited Plan 149845 in Lot 13 on Plan TS177 and Roads are not subject to native title determination application Yam Islanders/Tudulaig Combined QG 6052 of 1998 and do not form part of the land and waters described above.’ (emphasis added)” -- 4 of 23 -- 5 [9] A copy of the Native Title Determination Plan which comprised schedule 2 to that determination, is attached to these reasons. It shows (in broad terms) that the Island had been identified as Lot 13 on TS177. The application excluded identifiable areas. So, for example, Lot 50 on Plan TS283 was the description used for a special lease issued at the time. It also excluded Roads and Lease A. Their location within the external boundaries of the land the subject of the application for native title is now said by the Chief Executive to be of significance. [10] The Magani Lagaugal Corporation is the registered native title body corporate for that determination and, if the Minister were to make the grants proposed by the Chief Executive, the Magani Lagaugal Corporation would be appointed to hold each of the grants for the native title holders of the land. [11] The Regional Council sought review of the Chief Executive’s conduct pursuant to s 21 of the Judicial Review Act 1991 (Qld). While the conduct which is identified in the Regional Council’s application for review is broad enough to encompass the proposal in relation to 7 proposed grants, the relief sought in that application omitted reference to one of them (that concerning Lot 14 on SP282720). The reason for this is explained in the primary judge’s Reasons at [66] and was because of the lack of an interested contradictor. No party seeks any relief in respect of Lot 14. [12] The primary judge noted that in one sense the application could be said to be premature because it was as yet unknown whether the Minister would act as the Chief Executive proposed to request. Nonetheless his Honour concluded that the issue raised was substantive as to whether the Minister had authority to make a decision in accordance with the intended request from the Chief Executive. [13] The cause of the difficulty identified by the primary judge ultimately concerns the meaning of the language employed in s 35(1)(a) of the Act when it refers to transferrable land and that “a determination has been made that native title exists in relation to all or a part of the land”. What is meant (in context) by the expression ‘the whole or a part of the land’? [14] The issue arises, it is said, because: (a) some of the grants proposed to be made are of lots (7 in total but only 6 relevantly) where no part of the lot is land over which native title has been determined by Justice Cooper to exist; (b) but 3 of those lots (namely Lot 50, 97 and 104 on SP270867), at the time the determination was made by Justice Cooper, were part of Lot 13 as then described and other parts of Lot 13 were found at that time to be land over which native title exists. The Jurisdictional Issue [15] Before turning to the issue of construction, it is necessary to touch upon the nature of the proceedings before the primary judge. [16] The application to the primary judge was one to review conduct “under which [the Minister] propose[d] to make, or consider making a decision in respect of” identified lots. It was stated that there was no jurisdiction for the Minister to make such a decision and a consequential declaration and an injunction were sought. -- 5 of 23 -- 6 [17] After the application was filed the Chief Executive was substituted for the Minister as a respondent. The application has not been amended as such and continues to refer to the conduct under (presumably meaning pursuant to) which the Minister was proposing to act. At the hearing of the appeal the record was supplemented with material which establishes: – (a) That the Minister had adopted a procedure (designed to afford interested parties procedural fairness) by which the Chief Executive would prepare a draft recommendation for the Minister together with any submissions interested parties may make with respect to it for the Minister’s consideration; (b) An order was made on 10 December 2024 substituting the Chief Executive for the Minister as first respondent; and (c) The hearing below proceeded on the basis (reflected in the Reasons at [5]-[6]) as a review of the Chief Executive’s conduct, in that context, as if the application referred to it. [18] All parties agree that the court below had jurisdiction under s 21 of the Judicial Review Act or the court’s declarations jurisdiction more broadly. I am satisfied that that is correct. It remains something of a curiosity that it can be inferred that the Chief Executive no longer proposes to engage in the precise form of conduct which was the subject of the application. But that does not affect the jurisdiction of this Court. The Act [19] The recitals to the Act provide – “Whereas— 1 Before European settlement land in what is now the State of Queensland was occupied, used and enjoyed by Torres Strait Islanders in accordance with Island custom. 2 Land is of spiritual, social, historical, cultural and economic importance to Torres Strait Islanders. 3 After European settlement many Torres Strait Islanders maintained their ancestors’ customary affiliation with particular areas of land. 4 Some Torres Strait Islanders have a historical association with particular areas of land based on them or their ancestors having lived on or used the land or neighbouring land. 5 Some Torres Strait Islanders have a requirement for land to ensure their economic or cultural viability. 6 Some land has been set aside for Torres Strait Islander reserves or for the benefit of Torres Strait Islanders and deeds of grant in trust are held on behalf of certain Torres Strait Islanders. 7 The Parliament is satisfied that Torres Strait Islander interests and responsibilities in relation to land have not been adequately and appropriately recognised by the law and that this has -- 6 of 23 -- 7 contributed to a general failure of previous policies in relation to Torres Strait Islanders. 8 The Parliament is further satisfied that special measures need to be enacted for the purpose of securing adequate advancement of the interests and responsibilities of Torres Strait Islanders and to rectify the consequences of past injustices. 9 It is, therefore, the intention of the Parliament to make provision, by the special measures enacted by this Act, for the adequate and appropriate recognition of the interests and responsibilities of Torres Strait Islanders in relation to land and thereby to foster the capacity for self-development, and the self- reliance and cultural integrity, of Torres Strait Islanders.” [20] The language used does not limit the concerns Parliament is addressing necessarily to land over which native title exists (or existed) or require that any antecedent close connection with that land could be identified. Rather, the Act relies on the concept of transferable land in ss 8, 9 and 10 which can include available State land the Minister declares to be transferrable land: ss 9(1)(c) and 19. [21] The provisions directly relevant are contained in Part 4 of the Act. [22] The starting point is s 34 of the Act. It provides as follows: “34 Deeds of grant to be prepared (1) The chief executive must prepare such deeds of grant in fee simple as the Minister considers necessary and directs over transferable lands. (2) Transferable land need not be surveyed but may be described in a deed of grant in such manner as the Minister directs. (3) The deed of grant must show that the land is held by the grantee— (a) if the grantee is a registered native title body corporate appointed as the grantee under section 35—for the native title holders of the land; or (b) otherwise—for the benefit of Torres Strait Islanders particularly concerned with the land and their ancestors and descendants. (4) If the grantee is a registered native title body corporate appointed under section 35, the deed of grant also must include information to identify the native title holders of the land. (5) Subsections (2), (3) and (4) have effect despite any other Act or any rule of law or practice.” [23] The primary judge determined that all of the land the subject of the Chief Executive’s proposal is “transferable lands” within the meaning of the Act. His Honour also -- 7 of 23 -- 8 determined that the Magani Lagaugal Corporation is a registered native title body corporate and insofar as any determination has been made in the Federal Court it is the registered native title body corporate for the determination. The primary judge further determined that the terms of s 34 permitted the Minister, if considered necessary, to make the grants in the form of grants of individual lots or combination of lots. None of those conclusions is the subject of challenge on appeal. [24] Centrally relevant to the matters the subject of this appeal are the terms of ss 35 and 36 which provide as follows: “35 Appointment of registered native title body corporate as grantee to hold land for native title holders (1) This section applies to transferable land if— (a) under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and (b) there is a registered native title body corporate for the determination. (2) The Minister may, with the consent of the registered native title body corporate, appoint the body corporate to be the grantee of the land under a deed of grant prepared under section 34. (3) If the Minister appoints the registered native title body corporate to be the grantee of the land under this section, the body corporate holds the land for the native title holders of the land the subject of the determination mentioned in subsection (1)(a). (4) In considering whether to appoint a registered native title body corporate under this section, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example— (a) whether the making of the proposed appointment was a matter relevant to the native title claim under the Commonwealth Native Title Act that resulted in the determination that native title existed in relation to all or a part of the land; and (b) whether any Torres Strait Islanders particularly concerned with the land, other than the native title holders of the land, may be adversely affected by the proposed appointment; and (c) if the Minister is satisfied Torres Strait Islanders particularly concerned with the land will be adversely affected by the proposed appointment— any action the registered native title body corporate intends to take to address the concerns of the Torres Strait Islanders. -- 8 of 23 -- 9 36 Appointment of grantee to hold land for benefit of Torres Strait Islanders (1) This section applies if the Minister does not appoint, under section 35, a registered native title body corporate as the grantee of land. (2) The Minister may appoint as grantee of the land— (a) a CATSI corporation that is qualified to hold the land; or (b) a land trust. (3) However, the Minister may appoint a CATSI corporation that is a registered native title body corporate as the grantee of the land under subsection (2) only if— (a) under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land and the CATSI corporation is the registered native title body corporate for the determination; or (b) a determination has not been made under the Commonwealth Native Title Act that native title exists in relation to all or a part of the land, but the Minister is satisfied it is appropriate in all the circumstances to appoint the CATSI corporation as the grantee of the land. Examples of when it is appropriate to appoint the CATSI corporation as the grantee of the land— … 2 The land is within the external boundaries of an area of land the subject of a native title determination and the CATSI corporation is the registered native title body corporate for the determination. … (4) Before making the appointment, the Minister must consult with, and consider the views of, Torres Strait Islanders particularly concerned with the land. … (6) However, in considering whether to appoint an entity nominated in an ILUA as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example— -- 9 of 23 -- 10 (a) whether any Torres Strait Islanders particularly concerned with the land may be adversely affected by the appointment; and (b) if the Minister is satisfied any Torres Strait Islanders particularly concerned with the land will be adversely affected by the appointment—any action the entity intends to take to address the concerns of the Torres Strait Islanders. (7) Also, in considering whether to appoint a registered native title body corporate as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example, the matters mentioned in section 35(4)(b) and (c). (8) In appointing a grantee of land under this section, the Minister must have regard to any Island custom applicable to the land.” [25] Section 35 applies to “transferable land”. The primary judge concluded that when considering the application of s 35(1) the task was to be approached with respect to the land the subject of each separate proposed grant. No party contended that any other construction should be given to the language of s 35 in this regard and indeed all parties’ submissions proceeded on the basis that s 35’s application is to be determined on a grant-by-grant basis. I will touch on this again below, because it bears upon the proper construction of the sections, but in the end conclude that the approach taken by the parties is correct. [26] By s 35(1)(a), the section is to apply to transferable land if “a determination has been made that native title exists in relation to all or a part of the land”. This is the language at the heart of this appeal. The Competing Constructions [27] It is convenient first to summarise the various competing constructions found by the primary judge or contended for on appeal. [28] First, the primary judge found that s 35(1)(a) is only satisfied if it can be said that: – (a) the area of land of which the grant is to be made is transferrable land; (b) the area of land of which the grant is to be made is also within (so as to meet the characterisation of being ‘part of’) the description of the parcel of land the subject of the native title determination made at the time it was made; and (c) a determination was made that native title existed as to some part of the parcel so described. The primary judge referred to this as a ‘temporal anchoring point’.2 2 Torres Strait Island Regional Council v Chief Executive of the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development [2025] QSC 58 at [45] (‘Reasons’). -- 10 of 23 -- 11 [29] This construction is supported by the Magani Lagaugal Corporation in resisting the appeal. [30] Second, the Regional Council submits that for s 35(1)(a) to be satisfied relevantly requires only: – (a) the grant be of transferrable land; (b) some part of that land is land in respect of which it has been determined native title exists; and (c) in assessing the issue in (b), the survey descriptions given to parcels of land at the time of the determination are not material. The question, it is urged, is one of actual geographic overlap to some extent such that part of the land the subject of the proposed grant is also land over which it has been determined native title exists. [31] On this construction if the Minister chose to aggregate a number of lots into one grant, the focus would be on that one aggregated parcel of land, but the issue would be the same. Is that proposed area of that land something in respect of which as to the whole or part of it, a determination has been made that native title exists? [32] Third, the Chief Executive’s contention reflects that of the Regional Council, save that it is urged there is a further requirement, namely that the land that is to be the subject of the deed of grant “falls within the external boundaries of the area of land the subject of the determination”.3 [33] It is difficult to see why this additional requirement is material in relation to the matter before the Court. It is common ground that all of the disputed lots fall within the external boundary (which is an expression used in this case to refer to the perimeter of the island) of the land which was the subject of the determination. However, it is said to bear upon the proper construction. The Primary Judge’s Reasons and Order [34] The primary judge’s reasoning appears from the following passages extracted from his Reasons. “[46] Section 35(1)(a)’s language is quite specific in identifying the requisite connection between the transferable land and the determination. In referring to the transferable land, it requires that ‘under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land’. Section 35(1)(a) thus involves an anchoring temporal connection between the land it refers to and the determination that was made. Because such a determination can relate to all or part of the land, regard to what that land then was is essential. [47] The respondents argued s 35(1)(a)’s reference to ‘all or a part of the land’ opens up a broad discretion for the Minister to in effect grant multiple lots of transferable land and bring that set or 3 Chief Executive’s written outline of submissions at [5]. -- 11 of 23 -- 12 collection of lots within s 35(1)’s confining effect as long as ‘part of’ that set or collection has been the subject of a native title determination. But that is to pretend that s 35(1)(a)’s reference to ‘all or a part of the land’ is free floating and open to the determinative whim of the Minister when it is expressly anchored to whether the land is ‘part of the land’ that native title was determined to exist in relation to. The determinative consideration in s 35(1)(a) is not how the minister chooses to describe land which is transferable land at the time the grant is made, but whether the land caught by that description was, at the time of the determination, within at least ‘part of’ a configuration of land that native title was determined to exist in relation to. … [49] That the legislature chose to embrace the possibility that ‘part of’ but not necessarily all of the land referred to s 35(1) may have been the subject of a determination is unremarkable, both as a matter of law and fact. [50] It is unremarkable as a matter of law because under the Native Title Act 1993 (Commonwealth) the Federal Court has power to make a determination for ‘part of’ the area of land covered by the application for a determination of native title. [Footnote referred to s 87A]. [51] That the legislature’s choice is unremarkable as [a] matter of fact may be demonstrated by a simple example. Suppose a determination related to a configuration of land which spanned a creek running across it and the determination was that native title existed in relation to the land on the northern but not the southern side of the creek. The pragmatic effect of s 35(1)(a) is that, because it was determined native title existed in ‘part of’ that configuration of land, the whole area of land that was within that configuration when the determination was made is caught by s 35(1)(a).” [35] What is not clear from these passages, but is made clear by the later discussion of the particular lots, is what the primary judge meant by the words “at the time of the determination, within at least ‘part of’ a configuration of land that native title was determined to exist in relation to”. [36] His Honour had regard to the terms of the Federal Court’s order and the accompanying schedule which are extracted above. He then, on the basis of the agreed facts produced the table appearing in his Reasons at [60] as follows (underlining added) – “The present description of the seven lots in issue and the description of the lots they fell within at the time of the determination is different. The respective descriptions are: -- 12 of 23 -- 13 Present lot descriptions Lot descriptions the lots fell within at time of native title determination 13.12.04 (a) Lots 50, 97 and 104 on SP270867 (so described since sub-division of lot 13 on TS177 on 18 January 2017) (a) Lot 13 on TS177 (b) Lots 63 and 96 on SP270867 (so described since sub-division of lot 13 on TS177 on 18 January 2017) (b) Road (dedicated 24 October 1989 per s 362(2) Land Act 1962 (Qld)) (c) Lot 1 on SP282718 (so described since registration on cancellation of Lot 1 on TS362 on 13 March 2017) (c) Lot 1 on TS362 (d) Lot 14 on SP282720 (so described since registration on cancellation of Lot 14 on SP151793 on 13 March 2017) (d) Lot 14 on SP151793 (so described since registration on cancellation of Lot TS178 on 29 April 2003, though still referred to as Lot 14 on plan TS178 in the determination) [37] His Honour then reasoned: “[61] A comparison of the right hand column above with the land identified in Schedule 1 of the determination as ‘not subject to’ the native title determination application immediately demonstrates the land within the lots in (b), (c) and (d) above was not within a part of the land that native title was determined to exist in relation to. This determinatively excludes those lots from s 35’s application. [62] In contrast, as (a) above shows, the land in lots 50, 97 and 104 on SP270867 was within a part of the land that native title was determined to exist in relation to, namely lot 13 on TS177. The fact that the area of land in those lots came within areas of lot 13 on TS177 that were excluded from the determination area is an incident of the fact that native title was only determined to exist in relation to ‘part of’, rather than all of, lot 13 on TS177. However, the determination that native title existed in relation to a part of lot 13 on TS177 means that the whole of the area of land which was within lot 13 is land to which s 35 applies.” [38] The lots identified in (a) in the table were treated differently from those in (b) to (d), even though none of them was an area in respect of which native title was found to exist, because those in (a) were, at the time of the determination, part of the survey description of land that was called Lot 13 on TS177 and the determination had found -- 13 of 23 -- 14 native title existed over part of Lot 13. So, it would seem that when the primary judge spoke of a ‘temporal anchoring point’ and the configurations of land at the time of the determination part of which was found to be subject to native title, he meant the configuration not in physical terms but the survey title description. [39] On this basis, the primary judge ordered (bold emphasis added) – “It is declared that the proposed decision that a deed of grant in fee simple be prepared over each of the lots referred to in the Amended Application for a Statutory Order of Review and that the Second Respondent be appointed as the grantee under each such deed of grant to hold the land the subject of each deed for the native title holders for the Iama and Tudu People, would be contrary to ss. 34(3) and 35 of the Torres Strait Islander Land Act 1991 and invalid, insofar as the decision would involve the appointment of the Second Respondent to hold the land in deeds of grant in fee simple of at least lots 63 and 96 on SP270867 and lot 1 on SP282718.” [40] The inclusion of the words ‘at least’ in the declaration was perhaps intended to reflect his Honour’s decision to use a neutral expression as concerns Lot 14. One difficulty, however, with the language employed, is that it might arguably leave open the hint that other grants, and in particular grants of Lots 50, 97 and 104 on SP270867 might be invalid despite that result being incompatible with the primary judge’s reasons. The parties all agree this is not intended or desirable. It is something to be addressed in the form of order to be made consequent on the disposal of this appeal, if necessary. The Chief Executive & Regional Council’s Approach [41] A number of reasons are advanced for rejecting the primary judge’s construction. It is not proposed to set them out in detail but to summarise their general effect. [42] First, it is said it finds no support in the language of the Act (either s 35 or its broader context). [43] Second, it is said the word ‘the land’ should be given the same meaning in each of the different places it appears in ss 34, 35 and 36 and that this is a reference to the land the subject of the particular grant proposed to be made. [44] Third, it is said that the primary judge places unjustified reliance4 on the presence of s 87A of the Native Title Act as explaining why the legislature adopted language referring to only part of the land being subject to a determination of native title. [45] Fourth, that the primary judge’s approach would or at least could produce the result that the condition in s 35(1)(a) would be met by a proposed grant of lots none of which had been lands over which native title was said to exist. [46] Fifth, that the scheme of the Act required recognition of the harmonious operation of ss 34, 35 and 36 and (in effect) the alignment of the identity of the groups for whom the land grant is held with their interests. [47] Sixth, the operation of the Native Title Act is also relied on as a context in which the Act is to be construed. 4 Said to be in [50] of the Reasons. -- 14 of 23 -- 15 [48] Overall, it is submitted that the primary judge’s approach does not (but the competing construction does) advance the legislative purpose. The Proper Construction [49] There have been many pronouncements of the approach to be taken in the construction of statutory provisions. A convenient statement appears in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 at [14], where Kiefel CJ, Nettle and Gordon JJ stated – “The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” (citations omitted). Native Title Act [50] The Act is to be construed in its context. That context plainly includes the Native Title Act. The Act not only refers to the Native Title Act in various places, its operation in the sections with which this appeal is concerned depends on concepts established by the Native Title Act. [51] The matters of context include the following: (a) Native title means the right (communal, group or individual) in relation to land or water possessed under the traditional laws acknowledged, and traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders: s 223. (b) These rights can exist over large spreads of lands which (for obvious reason) do not follow modern land subdivisional constraints. (c) Applications can be made for a determination that the native title exists: ss 13 and 61. (d) Native title can be extinguished by certain government activities and (generally) an application for a determination of native title is not to be made for such areas: s 61A. (e) The application must identify, by physical description or otherwise, the boundaries of the area covered by the application plus any areas ‘within those boundaries’ that are not covered by the application: s 62(2). By amendments to s 62(1) made in 2021, in relation to compensation applications, there is a reference to the external boundary of the area of land covered by an approved determination of native title. (f) When a determination is made the Federal Court also makes determinations as to who is to hold the native title as agent of or trustee for the native title holders: -- 15 of 23 -- 16 ss 55 to 57. As mentioned above, in the present case Cooper J determined the land is to be held by the Magani Lagaugal Corporation. [52] The Chief Executive relies on this context not only for the general understanding of the relationship between ss 35 and 36 of the Act, but also as a context which supports the additional requirement which it is submitted is involved in the application of s 35(1)(a): viz that the subject of the deed of grant ‘falls within the external boundaries of the area of land the subject of the determination’. [53] The significance of this context is something to which I shall return below. Language Employed [54] The first and second of the submissions of the Chief Executive primarily concern the language of s 35 and the employment in that and other sections of the expression ‘the land’ or phrases including that expression. [55] Section 34 is concerned with the preparation of the grants. It is relevantly limited to grants over ‘transferrable lands’. It empowers the Minister to make a direction to prepare grants over transferrable lands and requires the Chief Executive to prepare such deeds as are directed. The section further requires that, when prepared, the grant will identify the grantee. This in turn requires that the Minister has acted such that it can be determined if the grantee is to be identified under ss 35 or 36. In this way s 34 and ss 35 and 36 function in mutually dependent ways. [56] The expression ‘transferable land’ is defined in an anodyne way in s 8(1) as “land that is to be granted under part 4”. The scope of what is transferable land is defined in section 9(1) as follows – “(1) The following lands are transferable lands— (a) DOGIT land; (b) Torres Strait Islander reserve land; (c) available State land the Minister declares to be transferable land.” [57] This is given further content by the later subsections of s 9 and in ss 10 and 11. [58] Then s 35(1) tells the reader that the section will apply to transferrable land if, relevantly, a determination has been made that native title exists in relation to all or a part of the land. The expression ‘the land’ employed here can perhaps mean the land which was the subject of the determination (the Magani Lagaugal Corporation’s construction) or the land the subject of each grant (the contention of the Regional Council and the primary aspect of the contention by the Chief Executive). [59] The language points to it meaning, and referring to, the ‘transferrable land’ (and as mentioned all parties submit this is to be considered on an individual grant basis). (a) On reading the chapeau to s 35(1) and s 35(1)(a), the only land referred to is the transferrable land. That is, the sense of the language of the section applies to transferrable land if something has been determined to exist in relation to the whole or part of that land. -- 16 of 23 -- 17 (b) The Act more generally identifies land as transferrable land, or land under a deed of grant or similar language.5 But when intending to refer to the land which was the subject matter of the determination, the Act uses different language by referring to ‘land the subject of the determination’. That language is not used in s 35(1)(a). (c) Indeed s 35(3) uses the expression ‘the land’ on three occasions. The first reference is to the nominated grantee of the land under s 35. But the other uses of those words appear in the phrase “the body corporate holds the land for the native title holders of the land the subject of the determination mentioned in subsection (1)(a)”. In this phrase the first reference to the land is again a reference to that of which the body corporate is to be grantee. The language of the latter reference is different from that employed in subsection (1)(a). It plainly refers to whatever land was the subject of the determination. The contextual significance here is that the expression is used in a composite phrase which differentiates it from the land the subject of the grant. (d) The drafter has also drawn a seemingly deliberate distinction between ‘the land’ and the thing described as the ‘land the subject of a native title determination’ in example 2 under s 36(3). The same language is employed in s 35(3) and at least prima facie should be given the same meaning although in s 35(3) the reference back to subsection 1(a) means that the usage in s 35(3) is of little assistance in construing s 35(1)(a) itself. (e) The operative provisions of ss 35 and 36 employ similar language, and again like expressions should be given the same meaning if possible. However, the temporal anchoring approach of the primary judge as referrable to the land the subject of the determination cannot be applied in s 36(3)(b). It would not be possible to construe the expression ‘in relation to all or part of the land’ in the way employed by the primary judge where, as required by this subsection, there had been no determination made under the Native Title Act. (f) Additionally, as senior counsel for the Chief Executive submitted, s 35(1)(a) becomes devoid of content if it is to be understood as providing that the section applies if a determination has been made that native title exists in relation to all or part of the land the subject of the determination. Unless there is something to tie this back to the transferrable land this is truly a condition without evident purpose. [60] There are numerous textual matters which are relied on in connection with the resolution of this construction issue. They can be mentioned briefly, as none of them affords any real guidance inconsistent with the above discussion. [61] It can be said, of course, that the drafter did not choose to replicate the defined term so as to refer to a determination having been made that native title exists in relation to all or a part of the transferrable land or even ‘that land’ or ‘such land’. Equally, it can be urged the drafter did not employ language which referred to the land within the external boundaries of the land the subject of the native title determination. These considerations are ultimately neutral. [62] Reference should also be made to the language in s 35(4). A factor the Minister may take into account in deciding whether to appoint a registered native title body 5 For example, in s 34(3), s 35(2), and s 36(1). -- 17 of 23 -- 18 corporate as grantee is whether the making of that appointment was a matter relevant to the claim under the Native Title Act that resulted in the determination that native title existed in relation to all or part of the land. Any determination made would be made by reference to the parcel of land which was referred to the Federal Court for determination. This perhaps offers some (slight) support for the primary judge’s reference to the temporal anchoring of the land. That said, the reference in s 35(4) to ‘all or part of the land’ is also consistent with it referring to the transferrable land. [63] The same language (a determination has been made that native title exists in relation to all or part of the land) appears in other sections not directly relevant to this appeal.6 In each case the context limits the utility of drawing any conclusion as to the meaning of the expression in s 35(1)(a). Other Considerations [64] Sections 34 to 36 provide a regime to facilitate the identification of the grantee of the land to be the subject of a grant, and for whom it is to be held. Under s 35(1)(b) the second condition for the application of that section is that there is a registered native title body corporate for the determination. Where s 35 applies the Minister may (but not must) appoint that native title body corporate as grantee and if that is done, the land is held for the native title holders identified in the determination: s 35(3); s 34(3)(a). Various factors are set out to which the Minister may have regard in deciding whether or not to appoint the native title body corporate as the grantee: s 35(4). There is a procedure prescribed by s 37 for public consultation in relation to the possible appointment. [65] If, however, the Minister does not make an appointment under s 35 (either because the section does not apply or because in exercise of the discretion it confers, the Minister chooses not to appoint the native title body corporate, as such) then s 36 governs the identification of the grantee. The land is then to be held for the benefit of Torres Strait Islanders particularly concerned with the land and their ancestors and descendants: s 34(3)(b). [66] In this way s 36 makes residual provision for situations not captured by s 35 or where the power in s 35 is not exercised. The exercise of the power under s 35 leads to the land being held for the benefit of the native title holders for the land while absent that exercise it is held, for what in argument was called, the ‘broader group’ (though numerically that may not be so, and it is more accurate to refer to them as a differently defined group). Between them the two sections cover the field. [67] However, these considerations do not assist in the issue of construction presently under discussion. [68] The object of the Act, as explained in the recitals, is beneficial to the interests of Torres Strait Islanders. It is to be served by grants of land (transferrable land) not limited to land previously identified as the subject of native title determinations or indeed necessarily land with which there was identified any other connection. [69] Section 35(1) plainly captures occasions where only part of the land (whatever that may mean) is determined to be the subject of existing native title and, accordingly, as 6 Sections 45(1)(b), 59(1)(a), 73(1)(d). -- 18 of 23 -- 19 to some part native title is not found to exist. The nature and extent of its capture of land in relation to which native title is not found to exist is not clarified by considerations of the harmonious operation of ss 35 and 36 or of the objects of the Act. The Explanatory Memorandum [70] Section 14B(1) of the Acts Interpretation Act 1954 (Qld) permits reference to extrinsic material including the explanatory memorandum – “… consideration may be given to extrinsic material capable of assisting in the interpretation— (a) if the provision is ambiguous or obscure—to provide an interpretation of it; or (b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable—to provide an interpretation that avoids such a result; or (c) in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision.” [71] The language of the Act is sufficiently ambiguous to enable reference to be made to the explanatory memorandum and it was relied on by the Chief Executive in this appeal. However, the only passage relied on refers to effecting an alignment between the Act and the Native Title Act which consideration ultimately is of no assistance in resolving the issues before this Court. The Native Title Act Context [72] The context provided by the Native Title Act (outlined above) similarly does not assist in the construction of s 35(1) save for the claimed additional requirement that the land be within the external boundaries of the land the subject of the determination. This is dealt with separately below. [73] However, the primary judge also referred to the operation of s 87A of the Native Title Act in his Reasons at [50] (extracted above). That section permits determinations to be made reflecting agreements made between all relevant parties, without the court having to conduct a hearing. It throws no real light on the scope of the ability of the Federal Court more generally to make determinations as to native title affecting part of any land or more importantly, the identification of what land is being referred to in the expression in s 35(1)(a) “a determination has been made that native title exists in relation to all or part of the land”. [74] Land within the external boundaries of an application for native title may be excluded from the application because native title has been extinguished in parts of that land, such that native rights and interests cease to be recognised by the common law. Indeed, that seems likely to be the usual reason for such land to be excluded from the application. In one sense then, the determination is made as to a part of the land, if the land is referring to the whole parcel within the external boundaries. On the other hand, as counsel for the Magani Lagaugal Corporation submitted, a claim for native title may not be made out with respect to all of the land in fact the subject of the application for the determination independently of any issue of extinguishment. -- 19 of 23 -- 20 [75] This context throws no light on the meaning and operation of s 35(1). The External Boundaries Contention [76] As mentioned at the outset, the Chief Executive submits that s 35(1) is to be read as implying a further requirement, namely that the land that is to be the subject of the deed of grant “falls within the external boundaries of the area of land the subject of the determination”.7 [77] There is no language in the Act which gives rise to that requirement. If, as has been concluded above, the land referred to is the transferrable land, all that s 35(1)(a) requires is that it has been determined that native title exists over some part of it. [78] The transferrable land which the Minister is considering granting may well comprise land which straddles the external boundary of the parcel which was the subject of the application for determination under the Native Title Act. This is especially so given that both the parcel the subject of the native title claim and also the land to be the subject of a grant can be described in ways not coincident with survey lines. [79] There is no basis for reading down s 35(1) as not being capable of applying where that occurs. The extent of the overlap between the intended granted land and the parcel the subject of the native title determination may well be a factor relevant to the Minister’s consideration whether to appoint the registered native body corporate as grantee: s 35(4). But that it may be considered in that context further reinforces that it is not implied as an anterior qualification for the application of s 35. [80] The examples provided in the text within s 36 form part of the Act, which accordingly falls to be construed taking them into account: s 14 Acts Interpretation Act 1954 (Qld). The examples in s 36 are examples of when it is appropriate to appoint the CATSI corporation (a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)) as the grantee of the land. The example (set out above) suggests it is appropriate to do so when the land to be granted is wholly within the external boundaries of an area of land the subject of a native title determination for which the CATSI is the registered native title body corporate. What that example cannot be said to suggest is that it may not be appropriate for it to be the grantee if the intended granted land is not wholly within the area of land the subject of a native title determination for which the CATSI is the registered native title body corporate. Nor can the provided example suggest that the feature it identifies as an appropriate situation for the appointment of the CATSI is (with adaptation for context) to be understood to be a requirement of s 35(1)(a) on its proper construction. Individual Grant Focus [81] All parties’ submissions proceeded on the basis that s 35’s application is to be determined on a grant-by-grant basis. Given that common ground it is unnecessary to consider this beyond making the following few observations. [82] There is a simplicity in the operation of ss 34 to 36 if s 35 is to be understood as applying to transferrable land viewed in relation to each individual grant. In particular s 34(3)(a) requires that the grant must show, if the grantee is a registered native title body corporate, that the land is held “for the native title holders of the land”. In 7 Chief Executive’s written outline of submissions at [5]. -- 20 of 23 -- 21 circumstances where no part of the land the subject of a particular grant has been found to be the subject of native title, it is not possible readily to identify such holders. Thus, if the Minister chose to direct a grant of individual lots where some grants were for land no part of which was the subject of a determination that native title exists – (a) The grant could not, as required by s 34(3)(a), show the land is held for the native title holders of the land; and (b) The requirement in s 35(3) that the registered native title body corporate hold it for such persons could not be fulfilled. [83] It is not obvious what purpose is to be served by construing the Act such that there is power to make a grant of multiple lots by one cumulative grant for a particular grantee, but a different grantee, if the Minister directs that there be individual grants of each lot (or some other combination). However, as effecting a grant to the grantee appointed whether under ss 35 or 36 would both give effect to the stated aims of the Act, seeking to adopt a purposive approach cannot be said to favour a construction which avoids the seeming oddity of the outcome depending on how the Minister directs the making or packaging of grants. Summary Conclusion [84] For these reasons, the context of and the language used in s 35(1)(a), show that the land being referred to is the transferrable land, that being the only land mentioned in the section to that point. There is no superadded requirement that the transferrable land be wholly within the external boundaries of the land which was the subject of that determination. [85] This construction is not compatible with the primary judge’s ‘temporal anchoring point’ as urged by the Magani Lagaugal Corporation. Section 35(1)(a) provides for the section to apply if, as to the land which the Minister directs to be made the subject of a particular grant, there has been, as to the whole or part of that land, a determination made under the Native Title Act that native title exists. This is to be assessed without regard to the manner of description of the land in the determination or indeed in the proposed grant other than as a means of identifying if there is physically some part of the latter for which the determination identified that native title exists. [86] It may be accepted that s 35(1)(a) refers to an historical fact, namely that a determination of a particular kind has been made. But the land of central concern is the transferrable land which is only identifiable when the Minister comes to exercise the power to direct the preparation of grants of land. While in the present case all descriptions of land both in the application for native title determination and in the proposed grants refer to their survey lot references this is not an essential requirement of either. Yet the temporal anchoring approach gives a status to the survey descriptions applied to describe the land in the determination as to native title. There is no justification for this in the language of the Act nor does the context afforded by the Native Title Act suggest that is a likely construction. [87] The correct approach is, as outlined above, to consider whether in physical terms the whole or a part of the transferable land the subject of the particular grant is land in respect of which it has been determined that native title exists. Some of the language of the primary judge perhaps suggests that this is what he had in mind. However, in -- 21 of 23 -- 22 the application of his construction to the 6 lots the subject of the application before him, it is clear his Honour saw the temporal anchoring requirement as involving more. His Honour’s focus on the comparison of the present description of the lots with their status as land within Lot 13 as described at the time of the determination as to native title, shows that those lots were treated differently from the parcels in items (b) and (c) of the table set out in his Honour’s reasons. This is notwithstanding that all of the parcels in items (a), (b) and (c) were explicitly excluded from the area of land the subject of the determination as to native title. Proposed Orders [88] Accordingly, the Orders that in my opinion should be made are – 1. The appeal is allowed, and the declaration made by the primary judge is set aside. 2. In its place: that it be declared that the conduct or proposed conduct of the appellant, to request or recommend that the Minister give a direction for the preparation of a deed of grant separately in relation to each of Lots 50, 63, 96, 97 and 104 on SP270867 with the second respondent appointed as grantee to hold it for the native title holders the subject of the Federal Court determination made 13 December 2004, is conduct for the purposes of making a decision of a kind not permitted by sections 34 and 35 of the Act. [89] As to costs, the parties have informed the Court that no order for costs of the appeal is sought by or against the second respondent. [90] No party has sought an order disturbing the costs order made below. [91] Supplementary submissions have been made on behalf of the appellant and the first respondent concerning the costs of the appeal. [92] The appeal, in my view, should be allowed. However, in no sense does that warrant an order for costs against the first respondent. Its position taken below and on appeal has been vindicated. It too has been successful in the appeal. The remaining question is whether the appellant should pay any part of the first respondent’s costs of the appeal. There are some unusual features of this case which justify such an order. [93] The application was made necessary because of the proposed conduct of the appellant. Only after the decision below was made did the appellant’s position alter. That is a perfectly proper course for it to have taken and reflects the wider public interest to be served in clarifying the scope of the discretions conferred by ss 34 to 36 of the Act. But the cost of doing so should not fall on an individual litigant affected by the conduct the focus of this current application. Further, in the appeal the appellant has not enjoyed complete success as its submission as to the significance of the external boundaries of the land the subject of the determination has not been accepted. [94] Accordingly, the appropriate order is that the appellant pay the first respondent’s costs of the appeal. [95] SULLIVAN J: I agree with Doyle JA. -- 22 of 23 -- 23 ATTACHED PLAN -- 23 of 23 --