FEDERAL COURT OF AUSTRALIA

Foster v Northern Territory of Australia [1999] FCA 1235

ABORIGINAL LANDS – traditional land claims – conservation land reserve – vested in Conservation Land Corporation – whether alienated Crown land – whether corporation a person other than the Crown – vesting of land in corporation – whether estate or interest held by corporation – application to Aboriginal Land Commissioner – jurisdiction of Commissioner – stare decisis – prior decision of High Court on same land and same issue – arguments not agitated before High Court – ratio of High Court decision binding on Federal Court – application for judicial review dismissed.

COURTS AND JUDGES – precedent – binding effect of relevant decision by High Court – High Court decision based on challenged assumption – assumption essential step in reasoning – conclusion binding on lower courts – limits of per incuriam rule.

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 3, 50(1)(a)

Judiciary Act 1903 (Cth), s 39B

R v Kearney; Ex parte Japanangka (1984) 158 CLR 395, followed

R v Kearney; Ex parte Northern Land Council (1984) 158 CLR 365, cited

Attorney-General for Quebec v Attorney-General For Canada [1921] 1 AC 401, cited

City of Perth v Crystal Park Ltd (1940) 64 CLR 153, cited

Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879, cited

Jacob v Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200, followed

Garcia v National Australia Bank Ltd (1998) 155 ALR 614, followed

Archer v Howell (1992) 7 WAR 33, cited

Ex parte Callinan; Re Russell (1945) 45 SR(NSW) 358, cited

Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, followed

Cassell & Co Ltd v Broome [1972] AC 1027, cited

Schweppes Ltd v Commonwealth of Australia (1944) 45 SR(NSW) 35, cited

Stone, Precedent and Law (1985)

Cross and Harris, Precedent in English Law (4^th ed 1991)

LESLEY FOSTER AND OTHERS v NORTHERN TERRITORY OF AUSTRALIA, CONSERVATION LAND CORPORATION, THE HON JUSTICE H W OLNEY, Acting as the ABORIGINAL LAND COMMISSIONER

DG 15 OF 1998

FRENCH, TAMBERLIN AND SACKVILLE JJ

31 AUGUST 1999 (Date of Judgment)

17 SEPTEMBER 1999 (Date Reasons Published)

DARWIN

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The Applicants are to pay the Respondents’ costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Background To These Proceedings

1                     On 4 June 1997, an application was made to the Aboriginal Land Commissioner by Lesley Foster and others under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“Land Rights Act”).  The applicants claimed as traditional owners of land described as Northern Territory Portion 539 which is otherwise known as The Devils Marbles Conservation Reserve.  The application asserted the status of the land as “unalienated Crown land”. The latter assertion was made because s 50(1)(a) of the Land Rights Act limits the class of applications which may be the subject of inquiry by the Commissioner to those made on behalf of Aboriginals:

“claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals.”

Upon the request of the Attorney-General of the Northern Territory, the Commissioner decided to determine as a preliminary issue the question whether the claimed area or any part of it was land which might properly be the subject of an application pursuant to s 50(1)(a).

2                     After inquiry, the Commissioner made a determination on 7 October 1998 in the following terms:

“1.       The Conservation Land Corporation is not an authority or emanation of the Crown in the right of the Northern Territory.

2.         Northern Territory portion 539 –

            (a)        is validly vested in the Conservation Land Corporation;

            (b)        is not, nor was it on 4 June 1997, either “unalienated Crown land” or “alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals.”

3.         The application made to the Aboriginal Land Commissioner on 4 June 1997 is not an application of the type referred to in s 50(1)(a) of the Land Rights Act and the Aboriginal Land Commissioner has no function to perform in relation to it.”

3                     The Commissioner, in his Determination, identified the contention advanced by the Central Land Council in support of the claim:

“The application made by the [Central Land Council] on 4 June 1997 identifies the claimed land as unalienated Crown land and notwithstanding arguments of varying complexity which on their face seemed to suggest that the claimants may wish to submit as an alternative that the land was alienated Crown land in which all interests not held by the Crown are held by or on behalf of Aboriginals that submission has not been made.  The claimants’ position remains that the claimed land is unalienated Crown land.”

4                     The applicants have applied to this Court in its original jurisdiction for an order of review and for orders under s 39B of the Judiciary Act 1903 (Cth).  They seek an order setting aside the Commissioner’s determination and a declaration that:

“…the Devils Marbles Land Claim is an application within the terms of s 50(1)(a) of the Land Rights Act in relation to which the Aboriginal Land Commissioner is required to exercise his statutory functions under the Act.”

5                     The application identifies a number of specific errors of law the Commissioner is said to have committed.  These errors are said to have led the Commissioner into further error in failing to conclude that the claimed land was either –

(a)        unalienated Crown land, being land in which no person other than the Crown had an estate or interest; or

(b)        land in respect of which all estates and interests not held by the Crown were held by or on behalf of Aboriginals, being the native title holders;

pursuant to ss 3 and 50 of the Land Rights Act.  This formulation of the alleged error of law follows the language of s 50(1)(a) of the Land Rights Act.

Statutory Framework

6                     It is sufficient for the purposes of the present application to note that s 3 of the Land Rights Act defines the following expressions which appear in s 50(1)(a) of that Act:

“‘alienated Crown land’ means Crown land in which a person (other than the Crown) has an estate or interest, but does not include land in a town;

‘Crown Land’ means land in the Northern Territory that has not been alienated from the Crown by a grant of an estate in fee simple in the land, or land that has been so alienated but has been resumed by, or has reverted to or been acquired by, the Crown, but does not include:

(a)       land set apart for, or dedicated to, a public purpose under an Act; or

(b)       land the subject of a deed of grant held in escrow by a Land Council;

‘unalienated Crown land’ means Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town.”

The History of Dealings with the Land

7                     The land which is the subject of the application lies in the vicinity of Tennant Creek.  The history that follows is largely derived from a statement of facts, issues and contentions put before the Commissioner by the Attorney-General for the Northern Territory.  The facts were not in issue before the Commissioner. 

8                     The land formed part of a pastoral lease which was granted in 1896 and cancelled in 1902.  In 1919, it was part of an area of land proclaimed under the Northern Territory Crown Lands Act 1890 (SA), as a reserve for commonage purposes in connection with the mining field of Wauchope Creek.  In April 1958, land within the Wauchope Commonage Reserve was surveyed and included in Survey Plan B75 as NT portion 539.  The Survey Plan came into effect on 5 January 1961.  That land is the land which is the subject of this application.

9                     On 19 October 1961, the Governor-General, by proclamation, revoked that part of the reservation of the Wauchope Commonage Reserve which comprised NT portion 539.  This revocation was made under s 103 of the Crown Lands Ordinance 1931-1959 (NT). On the same day and under the same Ordinance, the Governor-General reserved NT portion 539 for the purpose of “a national park to be known as Devils Marbles Reserve and Reserve No 1064”.  The Reserve was, on 22 November 1961, committed to the care, control and management of the Northern Territory Reserves Board pursuant to s 13(1) of the National Parks and Gardens Ordinance 1959-1961 (NT). 

10                  On 1 January 1978, by operation of s 5(1) of the Territory Parks and Wildlife Conservation Ordinance 1976 (NT) the care, control and management of the Reserve passed to the Territory Parks and Wildlife Commission.  Six months later, on 30 June 1978, the day prior to the assumption of self-government by the Northern Territory, the Administrator, by notice, revoked the conferral of the care, control and management of the Reserve to the Territory Parks and Wildlife Commission.  This was done pursuant to s 5(2) of the Territory Parks and Wildlife Conservation Ordinance 1976 (NT).  On the same day and pursuant to s 12(1) of the Ordinance, the Administrator declared the Devils Marbles Reserve to be a Reserve for the purposes for which it was reserved under the Crown Lands Ordinance in 1961.  By virtue of s 12(7) of the Ordinance all right, title and interest held by Australia in respect of the Reserve (other than in relation to minerals) vested in the Territory Parks and Wildlife Commission.

11                  On 31 August 1979, by virtue of s 14 of the Territory Parks and Wildlife Conservation Act (No 2) 1979 (NT) the estate or interest in NT portion 539 held by the Territory Parks and Wildlife Commission at that time was purportedly vested, legally and beneficially, in the Territory Parks and Wildlife Land Corporation.  The name of the Reserve was changed on 10 September 1979 to the Devils Marbles Conservation Reserve. 

12                  On 28 March 1980, by virtue of s 5(1) of the Territory Parks and Wildlife Conservation Act 1980 (NT) the estate or interest in NT portion 539 held by the Territory Parks and Wildlife Land Corporation was purportedly vested, both legally and beneficially, in the Conservation Land Corporation. 

13                  In November 1982, the Minister for Lands and Housing in the name of the Territory purported to grant to the Northern Territory Development Land Corporation a Special Purposes Lease No 570 over the land under the Special Purposes Leases Act 1953 (NT). This lease was surrendered by the Northern Territory Development Land Corporation on 1 February 1983, which surrender was registered on 15 February 1983. 

Previous Litigation with Respect to the Devils Marbles Conservation Reserve

14                  In November 1978, the Central Land Council lodged an application with the Aboriginal Land Commissioner on behalf of the Warramungu and Alyawarra People over land in the vicinity of Tennant Creek.  This was designated Land Claim  No 22 by the Office of the Aboriginal Land Commissioner (“the Commissioner”).  On 20 August 1980, the application in Land Claim No 22 was amended to include, inter alia, the Devils Marbles Conservation Reserve. 

15                  The Commissioner, Justice Kearney, commenced hearing the application on 1 November 1982.  Within a few days of the commencement of the hearing, the Minister for Lands and Housing had granted to the Northern Territory Development Land Corporation a Special Purpose Lease over the Devils Marbles Conservation Reserve and leases over other areas the subject of the claim.  The Commissioner held that these leases deprived him of jurisdiction to inquire into and report on the application in so far as it related to those lands, because they no longer satisfied the definition of “unalienated Crown land” in the Land Rights Act.

16                  Following the first indication to the Commissioner that the leases had been granted, the applicant (Mr Japanangka) was granted an order nisi for writs of prohibition and certiorari directed to the Minister for Lands and the Land Corporation.  After the Commissioner made his ruling, the applicant was granted an order nisi for a writ of mandamus directed to the Commissioner requiring him to exercise the functions conferred and imposed by s 50 according to law, in relation to the whole of the claim: see R v Kearney; Ex parte Japanangka (1984) 158 CLR 395,at 397.  It was this matter which the High Court determined in Japanangka.

17                  A majority of the Court (Gibbs CJ, Murphy, Brennan and Deane JJ; Wilson J dissenting) held that the grant of the leases had not deprived the Commissioner of jurisdiction to inquire into and report on the application.  In this respect, the Court followed a decision it gave on the same day: R v Kearney; Ex parte Northern Land Council (1984) 158 CLR 365.

18                  It was also contended for the Northern Territory in Japanangka that none of the areas in question was Crown land for the purposes of the Land Rights Act because, as Reserves, they were “land set apart for or dedicated to a public purpose under the Lands Acquisition Act 1955 or ‘under any other Act’” within the definition of “Crown land” in s 3. Underpinning this contention was the conclusion that the Reserves in question had been set apart or dedicated for public purposes under various Ordinances of the Northern Territory. All members of the Court held, however, that the relevant exclusion from the definition of “Crown land” in s 3 of the Land Rights Act was limited to land set apart or dedicated under an Act of the Commonwealth, and did not extend to similar action under an Ordinance of the Territory: at 403 (Gibbs CJ), 406 (Murphy J), 412 (Wilson J), 423 (Brennan J), 424 (Deane J, agreeing with Brennan J).

19                  In the result, therefore, a majority of the Court in Japanangka held that the land the subject of Land Claim No 22 was within the definition of “alienated Crown land”.  Accordingly, the Court made absolute the order nisi for mandamus directed to the Commissioner.  However, one area of land was excepted from the operation of the order.  This area was described as:

“…the area of Special Purpose Lease 570, known as Devils Marbles Conservation Reserve”.

This land is of course the claimed area in the proceedings determined by the Commissioner in the present case.

20                  The exclusion of the claimed area came about because of a question which Gibbs CJ identified as follows (at 404):

“A question arose as to an area known as the Devils Marbles Conservation Reserve (the subject of Special Purpose Lease No 570), which was vested both legally and beneficially in the Conservation Land Corporation by s 5 of the Territory Parks and Wildlife Conservation Act 1980 (N.T.) which took effect on 28 March 1980, before any application had been made in respect of that area.”

21                  The Chief Justice addressed an argument made on behalf of the prosecutors that the application was nonetheless competent, because (so it was said) the Land Corporation was an emanation of the Crown and therefore the land remained “unalienated Crown land” notwithstanding that it had vested both legally and beneficially in the Corporation.  His Honour rejected this argument, holding that the Corporation, under the terms of the Conservation Commission Act 1980 (NT) was not the Crown.  He expressed his conclusion this way (at 405):

“The Devils Marbles Reserve was therefore alienated Crown land, and of course the estate or interest in it not held by the Crown was not held by, or on behalf of, Aboriginals.  It was therefore not properly made the subject of the amended application.  The Commissioner correctly held that this land was not open to claim.”

Murphy J made no reference to the Reserve in his short reasons but, nevertheless, joined in the order of the Court which excluded the Reserve from the application.  Wilson J, at 411-412, although dissenting as to the result, said this, in relation to the Devils Marbles Conservation Reserve:

“In this case the fee simple estate in the reserve was alienated from the Crown long before there was any application to the Commissioner in respect of it.  The estate is held by the Conservation Land Corporation, a body corporate established by the Conservation Commission Act (NT).  In addition to that Corporation, the Act establishes the Conservation Commission of the Northern Territory.  The legislative scheme embracing these two Corporations appears to be identical to the scheme of the Territory Development Act.  In particular, s 29 provides that the Corporation is not an authority or instrumentality of the Crown and is not subject to the control and direction of the Minister or the Crown.  The sole function of the Corporation is to acquire, hold and dispose of real property in accordance with the Act (s 39).  Mr Castan argues that in holding that property the Corporation holds it for the Crown and that the Court should hold that it remains Crown land for the purposes of the Land Rights Act.  In my opinion, the submission must fail for the reason that to uphold it would require the Court to ignore the plain declaration of the legislature in s 29.”

22                  Brennan J, at 423, agreed with the reasons of the Chief Justice for excluding the Devils Marbles Conservation Reserve from the order for mandamus.  He agreed also with the Chief Justice’s reasons for holding that the Land Corporation in which the Reserve was vested was “a person (other than the Crown)” within the meaning of that phrase in the definition of “alienated Crown land”.  Deane J (at 424) concurred with Brennan J, subject to a qualification which is not material for present purposes.

23                  There can be no doubt therefore that the basis of the decision in Japanangka, in so far as it related to the Devils Marbles Conservation Reserve, was that the Reserve was alienated Crown land for the purposes of s 3 of the Land Rights Act.

The Applicants’ Submissions

24                  How then do the applicants in the present case, seek to avoid the effects of that decision?  They say in their written submissions that the consideration given by the High Court to the subject land in that decision was “by no means a matter of central concern”.  Moreover they say that the arguments which they have advanced to this Court, were not advanced before the High Court.  Those arguments include the following:

1.                  The Administrator’s revocation on 30 June 1978 of the conferral of the care, control and management of the Reserve to the Territory Parks and Wildlife Commission was ineffective.

2.                  The Reserve at the date of self-government was therefore the property of the Commonwealth and vested in the Northern Territory as at 1 July 1978 pursuant to s 69(2) of the Northern Territory (Self-Government) Act 1978 (Cth).

3.                  This severed the chain of title by which it is said that the Reserve became vested in the Land Corporation.

4.                  The purported vesting, on 30 June 1978, of the Reserve in the Territory Parks and Wildlife Commission, by virtue of s 12(7) of the Territory Parks and Wildlife Conservation Ordinance 1976, did not involve the acquisition by the Commission of any estate or interest in the land.  Neither, therefore, did the Territory Parks and Wildlife Land Corporation or the Conservation Land Corporation acquire any estate or interest in the land when it was vested in them on 31 August 1979 and 28 March 1980, by s 14 of the Territory Parks and Wildlife Conservation Act (No 2) 1979 and s 5(1) of the Territory Parks and Wildlife Conservation Act 1980, respectively.

5.         The vestings, being statutory in character, were limited in their effect.  They did not involve the grant of an estate or interest.  They were merely mechanisms for enabling the exercise of appropriate control and management of lands for a particular purpose.  In this respect reference was made to Attorney-General for Quebec v Attorney-General for Canada [1921] 1 AC 401, at 409; City of Perth v Crystal Park Ltd (1940) 64 CLR 153, at 168; and Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879. 

25                 The applicants contended that although the High Court in Japanangka held that the Conservation Land Corporation was a person other than the Crown, for the purposes of the Land Rights Act, the nature of the interest held by the Corporation was never in issue, presumably because it was not contested.    Thus, so it was said, the members of the High Court merely assumed that the Land Corporation had acquired legal and beneficial title to the Reserve and that “assumption” did not form part of the Court’s reasoning by which lower courts are bound. 

Reasoning

26                 The difficulty with the applicants’ contention is that the ultimate conclusion reached by the High Court, namely that the Reserve was alienated Crown land, was plainly dependent on two propositions of law stated by Gibbs CJ.  These were, first, that the Land Corporation was a person other than the Crown and, secondly, that the Corporation had acquired the legal and beneficial title to the Reserve by virtue of s 5 of the Territory Parks and Wildlife Conservation Act 1980.  As Mr Basten (on behalf of the applicants) acknowledged in argument, both propositions were essential to the ultimate conclusion that the Reserve fell outside the definition of “Crown land” in s 3 of the Land Rights Act and was therefore not available to be claimed under s 50(1)(a).

27                  Nonetheless, the applicants contended that it was significant that this reasoning was based upon an “assumption” about the validity and effect of the vesting of the Reserve in the Land Corporation that had never been properly explored before the Court.  The Commissioner in his determination seemed to accept this view.  He observed that:

“The High Court in Japanangka proceeded on the bases first, that the Conservation Land Corporation was a “person (other than the Crown)” and second, on the assumption that the Devil’s Marbles Conservation Reserve was validly vested in the Conservation Land Corporation.  If that assumption was soundly based there can be no doubt that the NT portion 539 is not unalienated Crown land.”

The Commissioner then proceeded to consider the merits of the “assumption” to which he had referred. 

28                  It is trite to observe that this Court is bound by a decision of the Full High Court.  Where a decision of the Full High Court is in point, it is not open to a lower court in the hierarchy to take the view that the matter should now be decided differently: Jacob v Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200, at 207, per Barwick CJ.  The High Court has recently re-emphasised that it is for that Court alone to determine whether one of its previous decisions should be departed from or overruled: Garcia v National Australia Bank Ltd (1998) 155 ALR 614, at 619, per Gaudron, McHugh, Gummow and Hayne JJ.

29                  In Japanangka, the High Court was exercising its original jurisdiction under s 75(v) of the Constitution, a jurisdiction which is also invested by virtue of s 39B of the Judiciary Act in the Federal Court. Nonetheless, the Full Court of the High Court is, whether in appellate or original jurisdiction, the final judicial decision-making body in Australia.

30                  Of course, in considering whether a decision of the High Court is binding in a particular case, it is necessary to determine whether a decision is in point, a question on which there has been much debate: cf J Stone, Precedent and Law (1985), Ch 7.  Cross and Harris describe the ratio decidendi of a case (that is, the principle for which the case is a binding precedent) as

“any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him” (emphasis added):

Cross and Harris, Precedent in English Law (4th ed 1991), at 72.  The learned authors qualify this description by observing that “strictly speaking...the above formulation should speak of a ‘ruling on a point of law’ rather than a rule of law”.

31                  The description applies to the ruling of the High Court in Japanangka, that s 5(1) of the Territory Parks and Wildlife Conservation Act 1980 was effective to vest title legally and beneficially to the Reserve in the Land Corporation.  This ruling was on a point of law, albeit a narrow one, essential to the conclusion of the High Court.  The High Court’s ruling was not in any sense provisional or contingent, or adopted merely for the purposes of argument.  Nor is it a case of a mere unstated assumption, or assumption sub silento: cf Archer v Howell (1992) 7 WAR 33, at 46; Ex parte Callinan; Re Russell (1945) 45 SR(NSW) 358, at 362.

32                  The invitation to depart from the Court’s decision through falsification of the so-called “assumption” is ultimately an invitation to revisit the decision on the basis that not all materials or arguments that could have been put before the Court were put before it. The applicants’ submissions amount to an invitation to find that the decision of the High Court was made per incuriam.  In Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, Moffitt P said (at 177):

“The per incuriam rule is not available to a court in relation to a decision of a court superior in the hierarchy.  It is a rule which applies only to a review by a court of its own decision.   An equivalent result cannot be achieved by regarding a binding decision of the superior court as distinguishable on the basis that it did not decide the question which it did by making the order that it did, but that it only decided the question apparently argued before it on the basis that its reasons were its decision.”

Priestley JA, speaking of an earlier decision of the New South Wales Court of Appeal said (at 185):

“That proposition therefore [became] part of the Court of Appeal’s decision and by reason of the system of precedent … was a proposition which [the trial Judge in the present case] was bound to regard as the law.  The system of precedent requires that judges apply the law as laid down by courts to which appeals lie from them, mediately or immediately, and whether or not they agree with that law.”

See also Cassell & Co Ltd v Broome [1972] AC 1027, at 1131, per Lord Diplock.  In Ex parte Callinan; Re Russell (1945) 45 SR (NSW) 358 at 362, Jordan CJ said:

“We have, however, the fact that in Robinson v Loaney [1944] ALR 223, reg 34 was considered and applied by the High Court as a valid regulation, it apparently not occurring either to counsel or to any member of the Bench that there was any doubt about its validity.  It would only be in very exceptional circumstances that we should be justified in holding invalid a regulation which the High Court has treated as valid, even though its validity was not challenged in that Court.”

33                  It is not necessary to consider whether the doctrine of res judicata, which is quitedistinct from the doctrine of precedent, applies in this case.  It may be that the present applicants, who claim as traditional owners, were in substance persons on whose behalf the application for mandamus was made in Japanangka and that the doctrine of res judicata can be invoked against them. 

34                  Whether that is so or not, the ratio decidendi of the decision of the High Court in that case is plain.  It stands squarely against the propositions now advanced by the applicants. It can only be called into question in the High Court itself: cf Schweppes Ltd v Commonwealth of Australia (1944) 45 SR(NSW) 35, at 40 per Jordan CJ. 

35                  The applicants might have invited the High Court to adopt this course had they commenced the present application in the original jurisdiction of the High Court.  It may yet be done if the High Court were to grant special leave to appeal from this Court, although we say nothing to suggest that the applicants’ arguments warrant reconsideration of Japanangka.  But this Court is bound to apply the decision of the High Court in relation to the very land and the very issue about that land which the applicants now seek to agitate in these proceedings. On this basis the Court has no option but to dismiss the application.  The application is therefore dismissed,  with costs.

Associate:

Dated:              17 September 1999