FEDERAL COURT OF AUSTRALIA
Kanak v Minister for Land & Water Conservation [2000] FCA 1105
NATIVE TITLE – strike out application – principal proceedings involve non-claimant application for determination that native title exists over Bondi Beach – application for determination that native title does exist may not be made by non-claimant - whether the applicant holds a non-native title interest over the land – nature of non-native title interest – non-native title interest must be greater than an interest held in common with general public – intellectual or emotional interest insufficient – costs in native title proceedings
WORDS & PHRASES – “non-native title interest”, “in connection with”
Federal Court Rules,Order 20 rule 2
Native Title Act 1993 (Cth), ss 3(a), 24FC, 24FE, 47A, 47B, 56, 58, 61, 61A, 62, 66(3), 66(10), 84, 84C, 253
Acts Interpretation Act 1901 (Cth), s 15AB(2)(e)
Native Title Amendment Bill 1997 (Cth)
Crown Lands Act 1989 (NSW), ss 5, 92(5), 112, 114
Local Government Act 1993 (NSW), ss 219, 220, 222, 223, 232
Phelps v Western Mining (1978) 20 ALR 183, distinguished
Byron Environment Centre v Arakwal People (1997) 78 FCR 1, applied
Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 854, applied
Waldron v Queensland [1999] FCA 1195, applied
Randwick Corporation v Rutledge (1959) 102 CLR 70, applied
Mathieson v Burton (1971) 124 CLR 1, applied
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493, applied
Commonwealth v Mewett (1997) 191 CLR 471, applied
Yanner v Eaton (1999) 166 ALR 258, considered
Cane Factor Holdings v Kanak [1997] NNTTA 1, cited
Hornsby Council v Roads & Traffic Authority (1997) 41 NSWLR 151, distinguished
Truth About Motorways v Macquarie Infrastructure (2000) 169 ALR 616, applied
Onus v Alcoa (1982) 149 CLR 27, applied
DOMINIC WY KANAK v MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NSW
N 6016 of 1999
MADGWICK J
9 AUGUST 2000
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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N 6016 of 1999 |
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BETWEEN: |
DOMINIC WY KANAK APPLICANT
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AND: |
MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NSW RESPONDENT
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JUDGE: |
MADGWICK J |
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DATE OF ORDER: |
9 AUGUST 2000 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The notice of motion filed by the respondent on 9 November 1999 is allowed.
2. The application is dismissed.
3. The applicant is to pay the respondent’s costs of the proceedings.
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IN THE FEDERAL COURT OF AUSTRALIA |
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N 6016 of 1999 |
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BETWEEN: |
APPLICANT
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AND: |
MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NSW RESPONDENT
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
HIS HONOUR:
1 The principal proceedings in this matter concern a non-claimant application, brought by Mr Dominic Wy Kanak purportedly pursuant to s 61(1) of the Native Title Act 1993 (Cth) (“the Act”), for a determination as to whether native title exists on Crown land and water at Bondi Beach and Bondi Park (“the claim area” or “Bondi”). It is unnecessary, for present purposes, to define the claim area any more precisely than this. The applicant has been principally concerned to prevent the environmental intrusion involved in the staging of the forthcoming Olympic volleyball events on the claim area. The applicant does not claim to hold any rights or interests, according to traditional Aboriginal law and custom, over the claim area, nor is his application authorised by any persons who do claim to hold such rights over areas of land that include the claim area. It may be noted that, in separate proceedings before this Court (Darug Tribal Aboriginal Corporation, NG 6061 of 1998, and Eora People, NG 6099 of 1998), there may be persons who so claim (for various reasons, that is not entirely clear).
2 The respondent Minister seeks orders by notice of motion that the application be struck out, pursuant to s 84C of the Act, on the grounds that the applicant does not hold an interest in the land for the purpose of lodging an application under s 61(1) of the Act. It is also submitted by the respondent that a non-claimant application may not be made for a determination that native title does exist. Further, the respondent seeks to dismiss the proceedings, pursuant to Order 20 rule 2 of the Federal Court Rules, on the grounds that, being devoid of any prospect of success, they may be said to constitute an abuse of process.
Relevant legislative provisions
3 Section 84C(1) of the Act provides that:
“If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications) … a party to the proceedings may at any time apply to the Federal Court to strike out the application.”
4 Section 61(1) provides that “native title determinations” may be made by the following persons:
“(1) A person or persons authorised by the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or
(2) A person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought; or
(3) The Commonwealth Minister; or
(4) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned.”
5 Section 61(4) provides that:
“A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:
(a) name the persons; or
(b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.”
6 Section 62 provides that:
“(1) A claimant application (see section 253):
(a) must be accompanied by an affidavit sworn by the applicant:
(i) that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and
(ii) that the applicant believes that none of the area covered by the application is also covered by an entry in the National Native Title Register; and
(iii) that the applicant believes that all of the statements made in the application are true; and
(iv) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and
(v) stating the basis on which the applicant is authorised as mentioned in subparagraph (iv); and
(b) must contain details specified in subsection (2); and
…
(2) For the purposes of paragraph (1)(b), the details required are as follows:
(a) information, whether by physical description or otherwise, that enables the boundaries of:
(i) the area covered by the application; and
(ii) any areas within those boundaries that are not covered by the application;
to be identified;
(b) a map showing the boundaries of the area mentioned in subparagraph (a)(i);
(c) details and results of all searches carried out to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application;
(d) a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;
(e) a general description of the factual basis on which it is asserted that native title rights and interests claimed exist and in particular that:
(i) the native title claim group have, and the predecessors of those persons had, an association with the area; and
(ii) there exist traditional laws and customs that give rise to the claimed native title; and
(iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;
(f) if the native title claim group currently carry on any activities in relation to the land or waters – details of those activities;
(g) details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title;
(h) details of any notices under section 29 found in Division 3 of the Act which deals with future acts (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.”
7 Section 253 contains the following relevant definitions:
“Unless the contrary intention appears:
…
claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.
…
interest, in relation to land or waters, means:
(a) a legal or equitable estate or interest in the land or waters; or
(b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(i) the land or waters; or
(ii) an estate or interest in the land or waters; or
(c) a restriction on the use of the land or waters, whether or not annexed to other land or waters.”
Whether a non-claimant may apply for a determination that native title exists
8 The respondent submitted that, on its proper interpretation, the Act does not countenance an application for a positive determination that native title exists other than where the applicant is a person authorised to make the application by the native title claim group. Section 61(1), it was said, should be read in context so as to allow only non-claimant applications which seek to deny the existence of native title. A legislative intention to read the Act in this way was said to be apparent from the operation of various of the Act’s provisions.
9 It was submitted by the respondent that the legislative restrictions and requirements on the content of claimant applications contained in ss 61, 61A and 62, which apply only to “claimant applications”, would be rendered practically ineffective were applications seeking to assert the existence of native title equally viable when styled as non-claimant applications. Section 61A requires claimant applications, inter alia, not to cover previous exclusive possession act areas, pursuant to subs (2), and not to claim certain rights and interests in previous non-exclusive possession act areas, pursuant to subs (3). Section 62 contains extensive and onerous prerequisites to the making of a “claimant application” (see para 6 above).
10 In general, statutory provisions potentially diminishing the jurisdiction of a court are construed minimally: see Pearce & Geddes Statutory Interpretation in Australia 4th ed 1996 at p 146. Likewise, a statute permitting persons or classes of persons to approach a court should not be narrowly construed, nor should implications restrictive of the rights of such persons be made except in cases of necessity: see, for example, Phelps v Western Mining (1978) 20 ALR 183.
11 However, I agree with the respondents’ submission that this is a case where a restrictive implication is necessary. It would be unacceptably anomalous if an application brought by a non-claimant, that sought to assert positively the existence of native title, were not subject to the various provisions that govern claimant applications. The Act is structured so that any positive assertion that native title exists will need to comply with the onerous requirements of ss 61, 61A and 62. It was evidently assumed by the drafters of the Act that it is only claimant groups who would be making such assertions. That is because native title is intrinsically possessed by a group on a communal basis. While it is not necessary (and would often be impossible) for a non-claimant application seeking to deny the existence of native title to fulfil the requirements of ss 61A and 62, there is no apparent policy reason why the information required of a claimant group should not also be required of a non-claimant application if such a vehicle might be used to seek to establish the existence of native title. However, no such requirement has been expressly provided for. To allow the making of non-claimant applications which seek to establish the existence of native title, without the accompanying information required by ss 61A and 62, would clearly enough tend to compromise the claimant application process envisaged by the Act. Further, it would leave other potential parties and the Court with little of the information necessary to consider the justification for making any positive determination that some group or person holds native title or otherwise to make the necessary determination under s 225.
12 Second, it was submitted by the respondent that to interpret the Act so as to allow non-claimants to make applications seeking to assert the existence of native title would impose oppressive requirements upon prospective claimant groups seeking determinations over the same land. Such requirements were said to arise primarily by virtue of the operation of ss 24FA, 24FC, 24FE, 66(3) and 66(10) of the Act. Section 24FC subjects an area to protection, under s 24FA, against future acts when there is a relevant native title claim, according to s 24FE, entered upon the Register of Native Title Claims, within the period specified in the notice given under s 66. The cumulative effect of these provisions is to deny compensation for a claimant group for any “future act” that may be performed over the claim area, unless a claimant application has passed the registration test before the National Native Title Tribunal (“the Tribunal”) within three months of the date of notification of a non-claimant application. The practical effect of the making of a non-claimant application is therefore to require a prospective claimant group, which does not wish such future acts to be validated, to have its application registered by the Tribunal within three months of notification of the non-claimant application. It was argued by the respondent that the difficulties encountered by many prospective claimant groups in identifying the membership of the claim group and the boundaries of the claim area, together with inevitable administrative delays involved before the Tribunal, would make the registration of a claim within three months impossible, as a practical matter, in many cases. It was also said that such an interpretation would promote litigation even where potential claimants were not inclined to seek a judicial determination of their rights. This result was said to be contrary to the objects of the Act contained in s 3(a): “to provide for the recognition and protection of native title.” It is also arguably contrary to the statement in the preamble to the Act that:
“A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.”
13 In general, I agree with this submission. While there are possible policy justifications for permitting a non-claimant application which denies the existence of native title or which seeks to be protected against the possible reach of native title to have this precipitous effect, there is no such justification for a non-claimant application which merely asserts the existence of native title in other persons’ hands.
14 Third, it was submitted by the respondent that to allow non-claimants to make applications for determinations that native title exists would deny claimant groups benefits afforded by the Act. In particular it was noted that ss 47A and 47B, which provide that prior extinguishment of native title over land (either subject to a trust held “for the benefit of Aboriginal peoples or Torres Strait Islanders” or which is vacant Crown land) is to be disregarded for any purposes under the Act, do not apply to non-claimant applications. Thus the making of a non-claimant application could have the effect of denying this benefit to prospective claimant groups: a strange result if a non-claimant application could assert the existence of native title in a group excluding the applicant.
15 Fourth, the respondent noted that, pursuant to s 84(2), an applicant, whether a claimant or non-claimant, is a party to proceedings as of right, whereas other persons, pursuant to s 84(5A) may, at the discretion of the Court, be denied such status or, pursuant to s 84(8), be stripped of such status. Section 84(5A) provides that:
“If:
(a) a person wants to become a party to the proceedings; and
(b) the Federal Court is satisfied that the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application;
the Court:
(c) may make appropriate orders to ensure that the persons interests are properly represented in the proceedings; but
(d) need not allow more than one such person to become a party to the proceedings in relation to each area covered by such a public right of access or use.”
Section 84(8) provides that:
“The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.”
It was said to be incongruous that the applicant might be able to secure his right to be a party to proceedings by making a non-claimant application when that right might be denied to, or removed from, him were he to seek to become a non-applicant party, particularly given that parties have a virtual right of veto in relation to negotiated outcomes: see Byron Environment Centre v Arakwal People (1997) 78 FCR 1 at 49.
16 The last two submissions outlined above highlight difficulties presented by the making of non-claimant applications under the Act. It is true that some of these difficulties present themselves whether a non-claimant applicant seeks a determination that native title exists or not. Thus, if considered alone, they might not decisively support the interpretation sought by the respondent. However, when taken together with the extensive requirements in s 61A and 62 involved as to the lodging of claimant applications, the difficulties referred to support the notion of an implied limitation upon the making of non-claimant applications under s 61(1), as contended by the respondent.
17 Further, the considerations noted above at least create an ambiguity as to the correct interpretation of s 61(1), and it would therefore be appropriate, pursuant to s 15AB(2)(e) of the Acts Interpretation Act 1901 (Cth), to refer to the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth), as urged by the respondent. At para 25.15 the Memorandum states:
“Who can make an application claiming that native title exists?
This kind of application can be made by one or more members of a native title claim group authorised to do so by that group... An application for a determination of native title that involves a claim for native title cannot be made unless it is made with the authority of the claim group.” (Emphasis added).
This passage provides strong support for the respondent’s contention. However it is true that, at para 25.17 the Memorandum also states:
“Who else can apply for a determination of native title?
A person who does not claim to hold native title may also apply for a native title determination, for example to establish that there is no native title in a particular area… A person who holds a non-native title interest (for example, a mining lease or a licence) in an area may make this type of application in relation to an area covered by the non-native title interest” (Emphasis added).”
The words “for example” appear to leave open the possibility that the Act contemplates a non-claimant making an application for a determination that native title does exist. However, given that these words follow so closely the words extracted above from para 25.15, they are better explained by recognising that a non-claimant application may seek to establish either that native title does not exist at all over a particular area, or that any native title rights that may exist do not infringe the interests of the claimant.
18 Whilst the Explanatory Memorandum is of assistance in this matter it is not necessarily determinative of the construction to be preferred: see Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 854 at para 25. However, in the context of the anomalous situation potentially created with respect to ss 61, 61A and 62, the Memorandum confirms the impression that non-claimant applications under s 61(1) of the Act are limited to those applications that do not seek to assert the existence of native title. As indicated, such an interpretation is, in my view, necessary to maintain the integrity of the claimant application procedure provided by the Act.
19 It follows that the application in this case should be struck out under s 84C for failure to comply with the implicit requirements of s 61.
Does the applicant hold a non-native title interest over the land?
20 There are several bases upon which the applicant claims to hold an interest in the land over which he claims native title exists, all of which are challenged by the respondent.
21 As a preliminary matter, in my opinion, it is quite clear that holding “a non-native title interest in relation to the whole of the area in relation to which the determination is sought”, sufficient to qualify as an applicant for a native title determination under s 61, is a different and more rigorous concept than that of a person whose “interests may be affected by [such] a determination”, that latter concept sufficing to give one a right (in general) to become a party to the proceedings under s 84(3). In Byron a distinction was drawn between the use of the terms “interests” and “interest in relation to land or water”, the latter term being defined by s 253. In determining what affected interests a person may need to become a party under the Act it was held that the concept of “interest in relation to land or water” is a more rigorous concept. Section 61(1) requires a person to hold “a non-native title interest in relation to the whole of the area in relation to which the determination is sought”. The use of the phrase “interest in relation to” by the framers of the Act, in conjunction with the qualifying phrase “non-native title” is highly suggestive, as a matter of close textual analysis, of an intention to draw a distinct dichotomy between one who “holds” an “interest in relation to the whole of the area” in s 61 and one whose “interests” “may be affected”, merely, by (an aspect of) a determination in the proceedings. More broadly, the Act restricts the classes of persons who may be applicants and gives them more rights and powers than parties. There are evidently assumed to be policy justifications for this. It makes sense that those who may be applicants should be a narrower class than those who may be parties.
22 In general, there appears to be no difficulty (subject to what follows as to the necessary reading-down of s 253 so as to exclude the rights held by every member of the public) about, no contrary indication against, applying the s 253 definition of “interest” to the use of that word in s 61. In Waldron v Queensland [1999] FCA 1195 Drummond J took the approach of applying the s 253 definition to the application requirements under s 61.
Public interest in Crown land dedicated to public recreation
23 The applicant claims that a public right of access exists in relation to the claim area, that such a right (or privilege) satisfies the definition of “interest” contained in s 253(2)(b) of the Act, and that therefore he holds a non-native title interest enabling him to bring an application pursuant to s 61. In assessing whether any interest of the applicant in the claim area suffices for the purposes of s 61 of the Act, it has been necessary shortly to consider the tenure history of Bondi.
24 In 1912 Bondi Park was proclaimed a public park under the Public Parks Act 1912 (NSW). In 1938 it was dedicated for the purpose of public recreation and Waverley Council was appointed trustee over the park. The legislative regime governing the claim area has been altered several times since. Today, Bondi Park is a “reserve” within the meaning of Part 5 of the Crown Lands Act 1989 (NSW), and Waverley Council is the “reserve trust” in relation to that area. The Council is charged with the “care, control and management” of the reserve under s 92(5). The Act contemplates the preparation and adoption of a plan of management for the reserve according to ss 112 and 114. Such a plan has been adopted in relation to Bondi Park. The plan of management states:
“1. INTRODUCTION
1.1 Background
Bondi Park … is principally a Crown reserve, which was dedicated for the purposes of public recreation in January, 1938. Waverley Council was appointed trustee to care, control and manage the reserve on behalf of the then Minister of Lands.
…
5. MANAGEMENT POLICIES AND STRATEGIES
5.3 Access, Parking, Traffic Movement and Access
1. To ensure pedestrian access is provided in a safe manner to all major desire lines (sic) within and adjacent to Bondi Park and Pavilion.
…
2. To ensure pedestrian movement is, wherever possible, free from potentially conflicting activities such as cycling, skateboarding and rollerblading.”
25 The respondent submitted that the plan of management does not create any public “rights” over the claim area. It was noted that the Crown Lands Act does not expressly confer rights upon a member of the public or user of a reserve, and noted that the Conveyancing Act 1989 (NSW), under s 178, specifically excluded the creation and presumption of rights of way by reason of use. The respondent also relied upon the decision of Randwick Corporation v Rutledge (1959) 102 CLR 70, where Windeyer J said (Dixon CJ & Kitto J agreeing), at 70, by way of obiter dicta:
“The term ‘public reserve’ – and the word ‘reserve’ alone, when not controlled by a definition or a context indicative of a different sense – have come to be used in common parlance in Australia in an imprecise way to describe an unoccupied area of land preserved as an open space or park for public enjoyment, to which the public ordinarily have access as of right. This use of the word is not new. ”
At 74 - 76 he continued:
“Although a private right to enjoy a park can be created as an easement appurtenant to an estate … our law does not recognise a public ius spantiandi vel manendi [the right to wander or remain] apart from charitable trust or statute …
Attorney-General v Eagar established that lands impressed with a trust could not be diverted by the Crown to purposes alien to the trust. Its authority that such lands were dedicated is undiminished… But, in so far as the decision in Attorney-General v Eagar appeared to place dedicated lands outside the authority of the legislature, it was mistaken. It was a later and even greater mistake to think that lands appropriated and taken into use by the Crown for a particular purpose (without the creation of any trust) became dedicated to that purpose and could not thereafter be used by the Crown for another purpose… It suffices to say here that there can be no dedication in any strict sense unless a public trust be created. In case of land vested in trustees as a public reserve in the form of a park or open space, to be maintained for the recreation of the public generally and not for the profit of any individuals, no difficulty arises; for the devotion of land to such a purpose is clearly charitable.” (Emphasis added).
Although the decision in Randwick Corporation was not followed in certain respects in Mabo v Queensland [No 2] (1992) 175 CLR 1 (“Mabo No2”), this discussion regarding public reserves and public trusts was not qualified by Mabo No2, at least to the extent that it relates to the use of a trust reserve enjoyed by non-native title holders.
26 It was accepted by the respondent that a charitable public trust does extend over that area. However, the respondent argued that, despite the existence of the trust, the applicant had no rights with respect to the claim area.
27 First, the respondent argued that the applicant’s ability to effect access to the claim area ought properly be characterised as being merely a “liberty.” This characterisation was said to arise from the foundation of rights in the common law which, it was said, presumes that liberties exist only to the extent that they are not otherwise confined. Presumably it was being suggested that a “liberty” of this kind is something less than a “privilege” referred to in the s 253 definition of “interest”. The respondent referred again to Windeyer J’s comments in Randwick Corporation where, at 80, his Honour said:
“It might seem at first sight that, if trustees in whom land is vested for purposes constituting it a public reserve as defined deal with it in conformity with law and commit no breach of trust, the land must necessarily be used for a public reserve. But that is not so. In certain circumstances land which is a public reserve or which forms part of a public reserve may be leased to private tenants … Land constituting a public reserve as defined is thus not necessarily always available for use by the public for the purposes of its dedication.”
His Honour also said at 88:
“In principle, for land to be used for public recreation and enjoyment, so as to be in some sense akin to a public park … [it] must be, in the relevant sense, open to the public generally as of right … [However, it] is not necessary for all members of the public to have free access to all parts of the land at all times. It is not incompatible with a public reserve that persons can be excluded for misbehaviour or for any similar sufficient reason. It is not incompatible with a place being dedicated for public recreation and enjoyment that its use be regulated, and that persons using it must use it having regard to the particular form or recreation and enjoyment which takes place there … It is not incompatible with a public park or reserve that at particular times, as for example at night, the public are wholly excluded. And it is not necessarily incompatible with a place being a place for public recreation and enjoyment that certain persons are allowed access at times when the general public is excluded or are allowed into parts where the general public cannot go.”
This capacity for substantial limitations to be placed upon the use by the public of land designated for public purposes, was said to indicate that such access by persons to such land is not by way of a right but of a liberty.
28 However, the fact that a right is confined or restricted does not of itself reduce its status to that of a mere “liberty”. Further, the definition in s 253, set out in para 7 above, should not be taken, in the absence of further statutory elaboration, to have discriminated upon fine jurisprudential distinctions. The conception of “any other right … charge, power or privilege” in para (b) of the definition of “interest” in s 253 is manifestly a broad one. The entire definition is, on its face, intended to have a broad scope. As Windeyer J said, in Mathieson v Burton (1971) 124 CLR 1 at 12, with respect to the meaning of a “right” under s 8 of the Acts Interpretation Act:
“We are not engaged in an exercise in analytical jurisprudence, or with the classification, expressed in terms of correlatives and opposites, that delights and attracts both disciplines and critics to Hohfeld”.
(Hohfeld’s analysis of “rights” and lesser kinds of legal entitlements appears in his article “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) Yale Law Journal 23). In any case, even if the distinction drawn by the respondent were a valid one, the notion of a “privilege”, contained within that definition would, subject to what appears below, appear to encompass the kind of contingent access allowed to the public over the claim area.
29 Second, it was argued by the respondent that, even if the trust did create rights, powers or privileges (“s 253 rights”), recognised by the Act, ss 5 and 6 of the Charitable Trusts Act 1993 (NSW) prohibit the commencement of proceedings in the Supreme Court of New South Wales in relation to such rights without the consent of the Attorney-General or that Court’s leave, and a member of the public is not entitled to enforce a charitable trust or to bring proceedings concerning the administration of the trust. If the trust is breached, then the appropriate course is either to request the Attorney-General to proceed or to commence a relator action with the Attorney-General’s consent: Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 537.
30 However, assuming that such limitations would apply in relation to the invocation of federal law, the fact that a s 253 right may be difficult, or even practically impossible, to enforce does not deny the existence of the right itself. The definition of “interest” contained in s 253 does not incorporate the additional notion of enforcability: for the purposes of the Act the mere existence of a s 253 right will suffice. This conclusion receives support from the proposition that “the existence of direct curial remedy is not co-extensive with the juridical existence of the right”: Commonwealth v Mewett (1997) 191 CLR 471 at 535, per Gummow and Kirby JJ.
31 Third, it was argued by the respondent that s 253 rights must be of a proprietary or contractual nature. The applicant’s right of access is clearly not contractual. And without venturing too closely into the vexed issues of what does or does not constitute property, discussed in Yanner v Eaton (1999) 166 ALR 258, it would seem that the applicant’s right is not proprietary: in particular such entitlements as he has to enter upon and use the land are simply those of all the world. The majority justices in Yanner grappled with the concept of property at paras 17 - 31. At para 17 they evidently felt it was possible to say that the term “refers to a degree of power that is recognised in law as power permissibly exercised over” something, and quoted, with approval, Professor Gray’s observation that:
"An extensive frame of reference is created by the notion that 'property' consists primarily in control over access. Much of our false thinking about property stems from the residual perception that 'property' is itself a thing or resource rather than a legally endorsed concentration of power over things and resources."
In the case of a right to access land, available to all the world as “members of the public”, it appears meaningless to speak of any individual having any recognised “degree” of power, or of there being any “concentration” of power in that individual’s hands.
32 To support the suggested “proprietary” or “contractual” limitation, the respondent referred to the judgment of French J in Cane Factor Holdings v Kanak [1997] NNTTA 1, at 7, and to Byron, in which Lockhart J said, at 13 - 14, that:
“Importantly, the definition of ‘interest’ in s 253 is expressed to be ‘in relation to land or waters’. The definition that follows is in wide terms; in particular where it refers in par (b) to any other right (that is, other than a legal or equitable estate or interest in the land or waters), including a right under an option and a right under an option and a right of redemption; and a charge, power or privilege over, or in connection with the land or waters or an estate or interest in the land or waters; or a restriction on the use of the land or waters, whether or not annexed to other land or waters. The words ‘over’ and ‘in connection with’ are words of wide import. Nevertheless, in my opinion, the word ‘interest’ in s 253 is used throughout the definition to convey some form of proprietary or contractual right, power or privilege concerning the land or waters.
In the matter of an application for a native title determination by the Gunai People (… 17 January 1997) French J, President of the Tribunal, said (at p 5):
‘It is questionable, although arguable, whether the recreational use of land by a member of the public who has no legal interest in it constitutes the exercise of a right of free access within the meaning of the definition in s 253.’
I agree with this statement by his Honour; but prefer to leave the question of the ultimate scope of the definition of ‘interest’ in relation to land or waters in s 253(b) to be decided in another case. I have in mind, for example (there are many examples), a person who frequently walks through Crown land to the beach and has done so, like many others, for a considerable number of years; but has no legal or equitable right (at any rate no expressly granted right) to do so.” (Emphasis added).
33 An apparently more restrictive interpretation of “interest” was adopted, in a not wholly dissimilar legislative context, in Hornsby Council v Roads & Traffic Authority (1997) 41 NSWLR 151. The Land Acquisition (Just Terms Compensation) Act 1991 (NSW), which is considered in the Hornsby case, refers to “ownership” of an interest. At 155 Meagher JA (Powell JA agreeing) said:
“[It was] submitted that the words of par (b) were extraordinarily wide and should be interpreted literally. However, this could not possibly be correct. In a sense every member of the public has a ‘right’ over the land in question: he can go on it and have a picnic… Some limitation must be placed on the words. Whilst the rights which fall within par (b) must be wider than the rights which fall within par (a), I feel that they must be limited to jura in re aliena, proprietary or quasi-proprietary rights less than a fully-fledged estate, that is, easements, charges, profits a prendre, profits a rendre, licences coupled with interests, etc.” (Emphasis added).
34 Section 61 requires an applicant to “hold” a non-native title interest. Lockhart J’s approach, which would appear not to limit rights (or privileges) to those of a proprietary or quasi-proprietary nature, but would include contractual rights, powers or privilege, seems better to reflect the language of the Act than the formulation offered by Meagher JA in relation to the somewhat tighter language of a different statute. Further, although Lockhart J used language which would exclude a right, power or privilege which might otherwise be capable, without the Act’s intervention, of vindication by a court of law, unless such a right could be classed as “proprietary” or “contractual”, his Honour’s remarks were by way of obiter dictum. In any case, it is not entirely clear to me, with respect, that the conception of an “interest” should be so limited. If a court would recognise and protect something that lawyers would call a right, charge, power or privilege over, or in connection with the land or waters in a claim area as being held by a particular person or persons, but not by others, there seems no reason why such a holder or holders should not be able to institute proceedings to assert its continuance beside, or its pro tanto extinguishment of, native title rights. Some kinds of statutory rights, powers or privileges, enacted in favour of particular persons or bodies, for example, might not fall comfortably within Lockhart J’s formulation, yet there seems to be no express or implicit necessity to exclude them from the reach of para (b) of the definition.
Interest merely as member of the public with a right of access
35 However, irrespective of the validity of the suggested “proprietary” or “contractual” limitation discussed above, there is, in my opinion, another implicit qualification upon the notion of “interest” in the context of s 61. Meagher JA and Lockhart J were as one in indicating that some limitation must be placed on words which could have a chaotically wide meaning. I respectfully agree. Section 61 is plainly concerned to confer rights on some persons to institute legal proceedings in relation to native title and to prevent others from doing so. It would be a bizarre result if the use of the restrictive term “interest in relation to the whole of the area” in s 61 itself (even if, as I think, the term “interest” is reasonably broad as to the kinds of legal entitlements that could amount to such an interest) should be held to have the effect of permitting any member of the public to be an applicant, merely because all members of the public may, as such, have some right of access to use the land. If one such person can be an applicant, so can every other. The way would be open for mere interlopers of every bent from anywhere within the relevant State or Territory and, at least in some cases, from anywhere in Australia. A proceeding could be made, intentionally or not, quite unmanageable. The applicant’s rights in respect of the claim area were no greater than those held by any other member of the public. The Act implicitly requires, in my opinion, that an applicant demonstrate an interest greater than that of a member of the general public, even when a public right of access to a use of the land is said to constitute the necessary “interest in relation to the whole of the area” as to which the determination is sought.
36 In Byron at 6, Black CJ said of the interest required of a person seeking to become a party (before the 1998 amendments of the Act):
“Clearly, it was intended that an interest sufficient to give a person the right to become a party to an application for the determination of native title should be greater than that of a member of the general public. The right to become a party is not given to ‘any person’… Something more than that possessed by ‘any person’ is required.”
Importantly, it was also held in Byron that the interest required by the Act, as it then stood, to become a party was different from and less stringent than the “interest in land or water”, defined by s 253, which, I have concluded, is required to bring an application under s 61. Lockhart J said, at 19:
“a person need not have an interest in the sense envisaged by s 253 to come within the definition of a person whose interest [or “interests”] may be affected by the native title determination under s 68(2)(a) [the now repealed provision concerning standing as a party]; the latter is a broader consideration.”
See also per Black CJ at 3 – 5.
37 Section 84(5A), inserted by the 1998 amending Act and set out above at para 15, apparently addresses and has the effect of qualifying the decision in Byron: it seems to envisage that a person might possibly have his or her “interests … affected by a determination” and become a party to the proceedings, or at least have his or her interests represented by another party with similar interests, merely because he or she has a “public right of access” to some part of the area in question. Presumably, however, there is scope for judicial evaluation as to whether this is so. However, whatever its precise meaning, this amendment does not alter the conclusion reached in Byron that the affectation of “interests” required to become a party is of a lesser order than the holding of an “interest in relation to land or waters” prima facie defined (presumably for some purpose) in s 253.. Further, the apparent extension of the Byron notion of “interests” effected by s 84(5A) was not also made in relation to the “interest” in land required by s 61. No power was given to the Court to limit the number of applicants, who assert rights as mere members of the public, corresponding to the powers given to the Court as to such persons who wish to be parties by s 84(5A)(c) and (d), when those provisions were inserted. This confirms the continuing validity of the conclusion that an interest greater than that of any member of the public is required to meet the definition of “interest” contained within s 253, which as I have indicated is, in my opinion, applicable to s 61. It tends against imputing to Parliament an intention that a mere claim to “a public right of access over, or use of” the land, the very formulation used in those provisions, should be capable of amounting to a “non-native title interest” within the meaning of s 61, notwithstanding the definition of “interest” in s 253.
38 It is to be remembered that the s 253 definition of interest operates “unless the contrary intention appears”. If s 253 is to be read, on its face, as quite unlimited as to the kinds of rights and entitlements that it embraces, then to my mind, the considerations to which I have referred do indicate the appearance of a contrary intention. To those particular considerations may be added a more general one. In Truth About Motorways v Macquarie Infrastructure (2000) 169 ALR 616, Gleeson CJ and McHugh J observed at para 2:
“There are reasons why, in the case of many laws, parliament may not wish to [provide for the judicial enforcement of the law at the suit of any person]. The common law requirement that a plaintiff who brings an action, not to vindicate a private right, but to prevent the violation of a public right or to enforce the performance of a public duty, must have a special interest to protect, is based upon considerations of public policy which the legislature would not lightly disregard. Nevertheless, it is not difficult to understand why, in the case of certain laws, it might be considered in the public interest to provide differently.”
It appears to me that nothing in the language, purposes or context of the Act puts it in the second class of laws referred to. The right of access held by the applicant, being merely that of a member of the public, is not sufficient to found his application. He has no “interest” as s 61(1) requires.
Associate member of the Darug Tribal Aboriginal Association
39 The applicant next asserts that he is an “associate member of the Darug Tribal Aboriginal Corporation”. The Corporation was said to be a “registered native title body corporate”, as defined by s 253 of the Act, allegedly made up of the Darug People who claim to be the descendants of the people living in an area, including the claim area, at the time of European settlement. Pursuant to s 56, upon a determination of the existence of native title it may also be determined that a native title body corporate is to hold the native title rights and interests in trust for the common law holders. Pursuant to s 58, a body corporate may be authorised by the regulations to represent and bind the common law holders of native title in relation to such title. It would be unusual if such a body corporate were or could even credibly claim to be a common law holder of native title itself. The organisation allows associate membership to those who are not such descendants but who agree with the aims and objectives of the organisation. It was conceded by the applicant at the hearing that any member of the public who so agrees can join the Corporation as an associate member.
40 The applicant cannot be said to hold an interest in the claim area simply by virtue of such membership and/or his professed concern to see the Darug Corporation succeed in their claim. It is well settled that a mere intellectual or emotional belief or concern, no matter how genuine or sincerely held, in respect of the subject matter does not usually confer on its holder a sufficient interest to gain standing to bring a legal proceeding where an “interest” in the proceedings or their subject matter is required: Australian Conservation Foundation. It is to be noted that in Onus v Alcoa (1982) 149 CLR 27, the appellants were regarded as having a sufficient interest to seek an injunction to restrain others from illegally damaging aboriginal relics, not by virtue of their Aboriginality, but by virtue of their tribal connection to the matters being litigated. Nothing in the Act mandates a different conclusion here. The applicant is not specially affected by what happens to the land or as to a determination of native title in respect of it.
Interest as a councillor of Waverley Municipal Council
41 The applicant is a councillor of Waverley Council (“the Council”). His final claim is that, as such, he has a duty of care over and control and management of the claim area, and that he ought therefore be considered to hold an interest in connection with the claim area. However, this submission is misconceived. Local councils, constituted by s 219 of the Local Government Act 1993 (NSW), are, pursuant to s 220, bodies corporate. Whilst the Waverley Council is governed by a body of councillors, in accordance with s 222 of that Act, which has the role of controlling the affairs of the Council, under s 223, it is the Council, and not the councillors, which has duties of care, control and management over the claim area. The role of councillors is set out in s 232:
“What is the role of a councillor?
(1) The role of a councillor is, as a member of the governing body of the council:
· to direct and control the affairs of the council in accordance with this Act
· to participate in the optimum allocation of the council’s resources for the benefit of the area
· to play a key role in the creation and review of the council’s policies and objectives and criteria relating to the exercise of the council’s regulatory functions
· to review the performance of the council and its delivery of services, and the management plans and revenue policies of the council.
(2) The role of a councillor is, as an elected person:
· to represent the interests of the residents and ratepayers
· to provide leadership and guidance to the community
· to facilitate communication between the community and the council.”
42 It is not possible for the applicant to assert an interest in the land by virtue of his role as a Councillor; any relevant interest, if it exists, would be held exclusively by the Council itself.
43 The applicant however argued that, if he does not hold an interest “in” the land, by virtue of his role as councillor, he holds a right, power or privilege “in connection with the land” for that reason. The ambit of the abundantly litigated phrase “in connection with” has recently been considered by a Full Court of this Court in a different context in Singh. At paras 28 – 29 the majority said:
“The case law on the phrase ‘in connection with’ indicates that it is an expression of wide connotation that merely requires a relation between one thing and another… But in Burswood at 146 the Full Court quoted with approval a statement made by Davies J as follows:
Expressions such as ‘relating to’, ‘in relation to’, ‘in connection with’ and ‘in respect of’ are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute ... The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.’
The phrase ‘in connection with’ does not necessarily require a causal relationship between the matters said to be connected: Perrett … and phrases such as ‘having to do with’ are sometimes referred to as a useful synonym… But so too are phrases such as ‘in the course of’, or ‘forming part of’… As the Full Court emphasised in Burswood (supra) at 146 reference to reported cases is of little assistance, because the nature of the relationship between one thing and another which is encompassed by the phrase ‘in connection with’ depends so much upon the statutory context in which the words appear.”
44 It may be accepted that in the Act the phrase “in connection with” has a broad meaning, but it is not unlimited. Further, the use of the phrase “x in connection with y” does not indicate that the internal content of the term of x is to be regarded as expanded. Thus, the Full Court in Singh, interpreting the phrase “procedures … in connection with the making of the decision”, rejected a narrow understanding of “making of the decision”, but that did not impact on the meaning of the term “procedures”. In this case, the applicant has no relevant right as a councillor. The phrase “in connection with” does not therefore assist him to establish any such right. The applicant’s rights, powers and privileges as a councillor extend only to what he might seek to cause the Council to do or refrain from doing, to what might concern his capacity to discharge his office, and to like matters. He has an entitlement to seek to cause the Council to do or refrain from doing things concerning the land in question. His rights and entitlements are in connection with the Council: they cannot, in my view, in the context of the Act, also be said to be “in connection with” the land itself.
45 The notion of interest, as defined by s 253, also carries the limitations discussed above. A councillor’s relation to land within the care and control of the Council for public purposes is, legally speaking, no greater than that of any other member of the public. For that reason also, it cannot be characterised as a right, power or privilege in connection with the land. This supposed foundation for the application must also fail.
Whether the application is manifestly hopeless?
46 The respondent also submitted that the proceedings ought to be dismissed, pursuant to Order 20 rule 2 of the Federal Court Rules, on the grounds that they are otherwise quite hopeless and may, as such, be said to be an abuse of process.
47 First, it was argued that the application did not permit the Court to make a determination of native title as is required by s 94A. That section obliges the Federal Court when making a determination of native title to “set out details of the matters mentioned in section 225”, which include, among other things, the persons holding the group rights, the nature of the rights, the nature of any non-native title rights. None of these matters was addressed in the application or supported by the evidence before the Court, although the applicant did seek to rely upon the evidence filed in the Darug Tribal Aboriginal Corporation, NG 6061 of 1998, proceedings. It was also said that the present formulation of the orders sought in the application was embarrassing. Second, the respondent pointed out that the application, amongst other things, did not clearly identify the boundaries of the claim area and did not include a map. This was said to be an infringement of s 61(5) which requires the application to be in the prescribed form. Third, it was claimed by the respondent that proceedings NG 6061 of 1998, Darug Tribal Aboriginal Corporation, relied upon by the applicant to prove that native title exists over the claim area, does not in fact extend over Bondi Beach. Further, it is said that it is impossible for that application to be amended now to include the claim area. Fourth, the predominant purpose of the application was said to be the prevention of the use of the land for the Olympic volleyball events; this was said not to fall within the objects of the Act set out in s 3. Fifth, the application was said to infringe the terms of s 61(2) of the Act, as set out above, which stipulate that in order to make an application under the Act a claimant must hold a non-native title interest “in relation to the whole of the area in relation to which the determination is sought”. It was said that even if the applicant was capable of establishing a public right of access over some of the claim area this did not extend to all of the area, some of which the applicant was excluded from by reason of licensing restrictions or the grant of free-hold title, for example behind the counter at the beach kiosk. The applicant sought to overcome this objection by amending his application so as to include only those parts of the claim area over which public access extended.
48 However, in view of the conclusions reached and the reasons given above, it is unnecessary to consider these further submissions to finality.
Costs and disposition
49 For these reasons the notice of motion filed by the respondent on 9 November 1999 is allowed and accordingly, the application will be dismissed.
50 The applicant seeks an order as to costs. Section 85A of the Act provides that, unless the Court orders otherwise, the parties are to bear their own costs. The section contemplates, in my opinion, that some reason must exist to justify a departure from the ordinary position which the section contemplates. In my opinion, there are such reasons. This was an incompetent claim, in reality not put forward for the purpose of vindicating any question of native title but of constituting a forum to enable the applicant and like-minded individuals to attempt to halt or moderate the construction of the volley-ball facilities by State authorities under State law on broad environmental grounds. Significantly, no native title claimant group, including the Darug Corporation (if it can be regarded as such a group), manifested any interest in the proceedings. The Act provides jurisdiction in the Court to vindicate claims of, or assertions against, native title and not broad questions of the environmental desirability of proposed uses of land. Yet litigation of that kind, which, if it could be brought at all, should have been brought in another court, was brought here in purported reliance on the Act. (Any attempt thereby to cloak this Court in non-federal jurisdiction could fairly be called colourable.) The rules of ordinary litigation should, in my view, apply. That the applicant was seeking to vindicate his conception of the public good is not, in this case, a sufficient reason for costs not to follow the event. While the application is incompetent there are not, in my view, sufficient features to warrant an order for indemnity costs, although it is a close matter.
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I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. |
Associate:
Dated: 9 August 2000
The applicant appeared in person.
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Counsel for the Respondent: |
J Waters |
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Solicitor for the Respondent: |
Crown Solicitor of New South Wales |
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Date of Hearing: |
16 December 1999, 18 February & 2 March 2000 |
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Date of Judgment: |
9 August 2000 |
