QGC Pty Limited v Alberts (No 2) [2021] FCA 540

QGC Pty Limited v Alberts (No 2) [2021] FCA 540

The ILUA contains an implied term that if the Nominated Entity becomes incapable of acting in accordance with its requirements, the Native Title Party may notify QGC in writing of a replacement Nominated Entity. This implication is necessary to give business efficacy to the ILUA and avoid commercial inconvenience. However, Boonyi Downs was not established by the families as required by the ILUA, and therefore cannot be the replacement entity; a process involving the families must be undertaken to properly appoint a new nominated entity, potentially with Tribunal and Representative Body facilitation.

Parties
Applicant: QGC Pty Ltd; First Respondent / First Cross Claimant: Natalie Alberts; Second Respondent / Second Cross Claimant: Kenneth Bone; Third Respondent / Third Cross Claimant: Mona Booth; Fourth Respondent / Fourth Cross Claimant: Lillian Colonel; Fifth Respondent / Fifth Cross Claimant: Patricia Conlon; Sixth Respondent / Second Cross Respondent: William Davis; Seventh Respondent / Seventh Cross Claimant: Elizabeth Doyle Johnston; Eighth Respondent / Third Cross Respondent: Kylie Jerome; Ninth Respondent / Fourth Cross Respondent: Margaret McLeod; Tenth Respondent / Fifth Cross Respondent: Kathleen Ott; Eleventh Respondent / Sixth Cross Respondent: Isobel Rabbitt; Twelfth Respondent / Seventh Cross Respondent: BCJWY Aboriginal Society Limited; Thirteenth Respondent / Thirteenth Cross Claimant: Murra Downs Ltd; Fourteenth Respondent / Fourteenth Cross Claimant: Boonyi Downs Pty Ltd
Jurisdiction
Australia
Judgment Date
29 April 2021
Procedural Posture
Native Title/contractual Dispute (statutory Contract)/interpleader / Judgment After Final Hearing
Outcome
Declaration and directions made (not final orders; process for establishing a valid replacement nominated entity required)
Legal Topics
Indigenous Land Use Agreement (ilua) Construction, Implied Contractual Terms, Appointment and Replacement of Nominated Entity, Trust Law Issues in Native Title Context
Native Title Contract Law Corporations Law Indigenous Land Use Agreement (ilua) Construction Implied Contractual Terms Appointment and Replacement of Nominated Entity Trust Law Issues in Native Title Context

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Parties

QGC Pty Ltd

Applicant

Natalie Alberts

First Respondent / First Cross Claimant

Kenneth Bone

Second Respondent / Second Cross Claimant

Mona Booth

Third Respondent / Third Cross Claimant

Lillian Colonel

Fourth Respondent / Fourth Cross Claimant

Patricia Conlon

Fifth Respondent / Fifth Cross Claimant

William Davis

Sixth Respondent / Second Cross Respondent

Elizabeth Doyle Johnston

Seventh Respondent / Seventh Cross Claimant

Kylie Jerome

Eighth Respondent / Third Cross Respondent

Margaret McLeod

Ninth Respondent / Fourth Cross Respondent

Kathleen Ott

Tenth Respondent / Fifth Cross Respondent

Isobel Rabbitt

Eleventh Respondent / Sixth Cross Respondent

BCJWY Aboriginal Society Limited

Twelfth Respondent / Seventh Cross Respondent

Murra Downs Ltd

Thirteenth Respondent / Thirteenth Cross Claimant

Boonyi Downs Pty Ltd

Fourteenth Respondent / Fourteenth Cross Claimant

Procedural Posture

Native Title/contractual Dispute (statutory Contract)/interpleader / Judgment After Final Hearing

Legal Issues

  1. 1 Whether the ILUA permits replacement of the nominated entity after it ceased functioning
  2. 2 Whether Boonyi Downs may be appointed as the nominated entity under the ILUA
  3. 3 Whether payments may be made to Boonyi Downs or need alternative distribution mechanism

Ratio Decidendi

The ILUA contains an implied term that if the Nominated Entity becomes incapable of acting in accordance with its requirements, the Native Title Party may notify QGC in writing of a replacement Nominated Entity. This implication is necessary to give business efficacy to the ILUA and avoid commercial inconvenience. However, Boonyi Downs was not established by the families as required by the ILUA, and therefore cannot be the replacement entity; a process involving the families must be undertaken to properly appoint a new nominated entity, potentially with Tribunal and Representative Body facilitation.

Court Disposition

Declaration and directions made (not final orders; process for establishing a valid replacement nominated entity required)

Orders

  • Declaration: Clause 2.1(b) of annexure 3 to the ILUA is to be construed with an implied term permitting notification of a replacement Nominated Entity if the previous one ceases to be capable of acting in accordance with clause 1.2.
  • The parties are to provide short minutes of order by 14 May 2021 to give effect to the proposal for meetings involving the Tribunal and Representative Body to facilitate establishment of one or more nominated entities to replace the twelfth respondent.