FEDERAL COURT OF AUSTRALIA

The Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v State of Queensland

[2001] FCA 414

NATIVE TITLE  - registered native title claimant – procedural rights – act affecting land or waters the subject of the application – whether procedural rights attach to registered native title claimants irrespective of characterisation of acts as future acts – non-compliance with procedural rights – whether affecting validity – jurisdiction – sources of Court’s jurisdiction to entertain challenge to validity of future acts – question of validity under State law – whether accrued jurisdiction – whether standing to bring claim – whether discretion in Court to decline jurisdiction and/or decline relief

COSTS  - whether costs should follow the event.

Native Title Act 1993 (Cth) Pt 2 (Div 3), subdivs M, O, P, ss 3, 4, 8, 10, 11(1), 23C(1)(a), 24AA, 24AA(1), 24AA(2), 24AA(3), 24AA(4), 24AA(5), 24AB, 24AB(2), 24AC, 24 EB, 24FA, 24FA(1), 24FD, 24GB(9), 24GD(6), 24GE(1)(f), 24HA, 24HA(1), 24HA(2), 24 HA(3), 24HA(4), 24HA(5), 24HA(7), 24MA, 24MB, 24MB(1), 24MC, 24 MD, 24MD(1), 24MD(3), 24MD(6A), 24NA, 24OA, 25(4), 47, 47A, 47B, 61, 63, 69, 74, 79A, 81, 85, 85A, 213, 213(2), 226, 226(2)(b), 226(3), 227, 233, 233(1), 233(2), 238, 238(3), 238(6), 253

Harbours Act 1955 (Qld) ss 81, 86, 86(2), 86(2)(a), 86(3)

Transport Operations (Marine Safety) Act 1994 (Qld) ss 208(1), 218, 218(e)

Racial Discrimination Act 1975 (Cth) s 7

Judiciary Act 1903 (Cth) ss 39B, 39B(1A)

Federal Court of Australia Act 1976 (Cth)ss 23, 24(1), 24(1A)

Industrial Relations Act (1988) (Cth) s 374(1)

Transport Infrastructure Act 1994 (Qld) s 236

Integrated Planning and Other Legislation Amendment Act 1999 (Qld)

Transport Planning and Coordination Act 1994 (Cth)

Acts Interpretation Act (1954) (Qld) s 13A(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Transport Operations (Marine Safety) Regulation 1995 (Qld) regs 123(d), 169A, 170, 170(1), 171

The State of Western Australia v The Commonwealth (1995) 183 CLR 373 cited

Fejo v Northern Territory of Australia (1998) 195 CLR 96 applied

Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 cited

Johnson Tiles Pty Ltd v Esso Australia Ltd (2001) ATPR 41-974 cited

Re Wakim; Ex parte McNally (1999) 198 CLR 511 cited

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 74 ALJR 604 cited

Carpentaria Land Council Aboriginal Corporation v Queensland (1998) 83 FCR 483 cited

Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35 referred to

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied

Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261 referred to

Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 referred to

Abebe v The Commonwealth of Australia (1999) 197 CLR 510 referred to

Pirrie v McFarlane (1925) 36 CLR 170 cited

LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 referred to

Re McJannet; Ex parte Australian Workers’ Union of Employees (Q) [No 2] (1997) 189 CLR 654 referred to

Fencott v Muller (1982 – 1983) 152 CLR 570 referred to

Ward v The State of Western Australia (1999) 163 ALR 149 referred to

Western Australia v Ward (2000) 170 ALR 159 referred to

Brownley v Western Australia (1999) 167 ALR 170 referred to

H of R, Explanatory Memorandum to Native Title Amendment Bill 1997

Explanatory Memorandum “Cat No 97 2720 5” “ISBN 0644 51811 1”

THE LARDIL, KAIADILT, YANGKAAL and GANGALIDDA PEOPLES v STATE OF QUEENSLAND, COMMONWEALTH OF AUSTRALIA, PASMINCO CENTURY MINE LTD ACN 006 670 300, M G KAILIS GULF FISHERIES PTY LTD ACN 007 856 395 AND OTHERS

Q 293 of 1999

FRENCH, MERKEL, DOWSETT JJ

11 APRIL 2001

BRISBANE

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

FRENCH J:

Introduction

1                     On 18 March 1996, there was given to the Registrar of the National Native Title Tribunal an application for a native title determination over seas in the Gulf of Carpenteria surrounding the Wellesley, Forsyth and South Wellesley Islands.  The islands themselves, which are subject to a separate application, did not form part of the claim.  The application was lodged on behalf of the Lardil People of Mornington Island and the surrounding islands and seas, the Kaiadilt People of Bentinck and Sweers Islands and surrounding islands and seas, the Yangkaal People of Forsyth Island and the Gangalidda People of the mainland including certain named persons, one of whom is the registered native title claimant, Alfie Johnny.  They are the appellants in these proceedings.  The area of the claim is some 16,420 square kilometres.  The native title rights and interests claimed include the rights to exclusive possession, occupation, use and enjoyment of the land and waters which are the subject of the application.

2                     On 4 November 1997, the application was referred to the Federal Court pursuant to s 74 of the Native Title Act 1993 (Cth) (“the NTA”) as it then was.  It was given the number QG207 of 1997 in the Federal Court.  Interlocutory directions were made in the proceedings and have resulted in the filing and service of points of claim by the appellants on 27 November 1998 and points of response by the State of Queensland and Pasminco Century Mine Ltd (Pasminco), both of whom are respondents.  On 21 June Pasminco was directed to file and serve any evidence upon which it was to rely by 16 August 1999.  At a directions hearing on 30 August 1999 the solicitors for Pasminco served the applicants with the draft affidavit of a marine consultant, Mr Campbell Smith.  One of the annexures to that draft affidavit was a Restricted Buoy Mooring Authority which had been issued on 6 August 1999 by the Acting Regional Harbour Master (Cairns) Captain A Boath.   The issue of that authority without prior notification to the appellants led to a motion by the appellants in the native title proceedings seeking a declaration that the authority is invalid and final injunctive relief.  The relief was sought primarily on the basis of non-compliance with the future act provisions of the NTA but also for non-compliance with the laws of Queensland governing the issue of such authorities.  The motion was dismissed by Cooper J on 24 November. His Honour ordered that the appellants pay the costs of the respondents to the notice of motion.  The appellants now seek leave to appeal against that decision.

3                     The motion was filed in the native title proceedings albeit it sought final relief.  The procedure that was used is questionable.  But whatever its  appropriateness the orders made were final, not interlocutory, and leave was not necessary to appeal against them.  In any event there was no dispute that if leave were necessary it should be granted.  The applicants are therefore treated as appellants for the purpose of these proceedings. 

4                     The case raises some important questions about the construction of the future act provisions of the NTA which concern the protection of native title against extinguishment or impairment by government acts and the extent to which registered native title claimants have procedural rights which they may exercise without being called upon to demonstrate that they have, or have an arguable case for the existence of, native title rights and interests.  A related question is whether an act proposed to be done by a government is to be treated as a future act, being an act that affects native title notwithstanding that it is not known whether it will affect native title rights and interests or not.

The Issue of the Buoy Mooring Authority

5                     Pasminco is presently developing a zinc, lead and silver mine about 250 kilometres north/north west of Mount Isa.  Zinc concentrate from the mine is to be conveyed by slurry pipeline to Karumba where it is to be de-watered and transported to the MV Wunma, a purpose built transfer vessel of 110 metres in length with a draft of 3.85 metres.  The Wunma is to be used to transport the concentrate to overseas bulk carriers at an anchorage in the Gulf of Carpenteria.  The route to the proposed anchorage does not cross any of the area the subject of the application.  However as the area is subject to a cyclonic season, it is necessary that the vessel have access to a safe mooring.

6                     On 12 July 1999, Pasminco made an application under Reg 123(d) of the Transport Operation (Marine Safety) Regulation 1995 (Qld) (“Marine Safety Regulation”) for an authority to establish a buoy mooring.  The application was expressed to be for a restricted buoy mooring for a single nominated ship, namely, MV Wunma.  The buoy mooring was described in the application as a block consisting of concrete and anchors 3m x 3 m x 1.5 m and weighing 32,000 kilograms.  The location of the proposed mooring was set out in a chart attached to the application.  Its position was fixed by reference to bearings from North Fowler Island, Raft Point on Bentinck Island and Inscription Point on Sweers Island.  That location is within the area covered by the native title determination application.

7                     A form of authority was issued by Captain A Boath, the Acting Regional Harbour Master (Cairns).  It bore two dates, being 27 July 1999 and 6 August 1999, both of which were identified as its date of issue.  It was headed “Restricted Buoy Mooring Authority” and was in the following terms:

‘RESTRICTED BUOY MOORING AUTHORITY

I, Captain Alan Boath, the A/Regional Harbour Master, (Cairns) of the Queensland Department of Transport, a delegate of the Chief Executive, pursuant to section 170(1) of the Transport Operations (Marine Safety) Regulations 1995 hereby approve the authority holder described herein to establish a buoy mooring in accordance with the details stated in this authority.

This authority is only valid for the duration stated in it (unless renewed) and is subject to the conditions forming part of this authority.

BUOY MOORING NUMBER: CK-005

DETAILS OF AUTHORITY HOLDER:

Name:             PASMINCO CENTURY MINE LTD

Residential/Business Address:                         Postal Address:

Box 730                                                           Box 730

SPRING HILL QLD  4004                              SPRING HILL QLD 4004

This Authority will expire on 27 July 2000.

VESSEL/LOCATION DETAILS:

“WUNMA” Reg No.: DARK BLUE BULK CARRIER TRANSFER VESSEL – CALL SIGN VHN 9140

Type:               SWING                                    Grid No:

Location:

                        Approx. Latitude:                   (initialled)

                        Approx. Longitude

Issued this Friday, 06 August 1999.

……(initialled)……………………..

Captain A Boath

A/Regional Harbour Master (Cairns)

Conditions/Restrictions

Mooring Number:  CK-005                            Authority Issued: 27 July 1999

                                                                 90 (initialled)

The mooring is to be placed within 30 days of the date of issue of the Authority.

The number appearing in the Authority should be affixed permanently to the buoy and displayed such that it is legible and visible at all times.

In approving the placement of the proposed mooring, Queensland Transport has taken consideration of the navigational aspects of the application.  This does not constitute an approval in respect of:

            a.         structural adequacy; and

            b          compliance with other local, state or federal legislative requirements relating to matters such as marine parks, fisheries, habitation of vessels or ship sourced pollution.

The holder must make their own arrangements to ensure that their obligations are met regarding these matters.

Mooring management arrangements are under constant revision for all areas of the state.  It may be necessary to amend this authority or relocate the mooring, which is the subject of this authority, from time to time in the interests of marine safety or the efficiency and effectiveness of the maritime industry.

Additional Conditions:”

8                     As may be seen from the form of authority used it initially required that the mooring be placed within thirty days of the date of issue.  No location was specified on the face of the authority.  Pasminco’s  marine consultant, Mr Smith, requested Captain Boath to extend the time to ninety days and to complete the location details.  Captain Boath agreed to do both.  He altered the time limited for placing the buoy to ninety days and initialled that alteration.  He also placed his initial where the location should have been entered.  However, he again omitted to enter the location.

9                     There was evidence that some of the appellants were aware by 6 July 1999 that an application would be made for a buoy mooring authority for the vessel in the event of a cyclone and that its location was between Sweers and Bentinck Islands on the Investigator Road.  It is not in dispute, however, that no notice of the application was given to the appellants or the registered claimant by the State of Queensland or by Captain Boath, as delegate of the Chief Executive of Queensland Transport for the purpose of Reg 170(1) of the Marine Safety Regulation.  Nor was any notice given of the grant of the authority to Pasminco.

The Notice of Motion

10                  On 25 October 1999, the appellants filed a motion in the native title determination proceedings seeking orders, inter alia, declaring the Restricted Buoy Mooring Authority to be invalid and enjoining Pasminco from proceeding with the construction of the buoy mooring for mooring the Wunma or any other ship or vessel at the mooring and restraining the State of Queensland from extending or renewing the mooring authority.  At the hearing of the motion the relief sought by the appellants was expressed thus:

“1.       A declaration that the Restricted Buoy Mooring Authority issued to Pasminco Century Mine Ltd by Captain A Boath A/Regional Harbour Master (Cairns) dated 6 August 1999 and 27 July 1999 and bearing buoy mooring number CK-005 (“the Authority”) is invalid.

2.         An order restraining Pasminco Century Mine Ltd from establishing, constructing or placing, itself or by its employees and agents, a buoy mooring at the location between Bentinck Island and Sweers Island or at any other place in the area the subject of the native title application pursuant to the Authority.

3.         An order restraining Pasminco Century Mine Ltd from establishing, constructing or placing, itself or by its employer and agents, a buoy mooring at the location between Bentinck Island and Sweers Island or at any other place in the area the subject of the native tile without first obtaining –

(a)       valid Authority under the Marine Safety Regulation;

(b)       the sanction of the Minister under s 86 of the Harbours Act 1955 (Q);

and without complying with s 24NA of the Native Title Act 1993 (Cth).

4.         A declaration that the chief executive (under the Transport Infrastructure Act 1994 (QLD) may not grant a buoy mooring authority under the Transport Operations (Marine Safety) Regulation 1995 unless and until:

(a)       the requirements of ss 24HA and 24NA of the Native Title Act 1993 have been complied with; and

(b)       the agreement of the native title holders has been obtained.

5.         A declaration that the responsible Minister may not sanction works or the placing of a structure under s 86 of the Harbours Act 1955 unless and until:

(a)       the requirements of ss 24HA and 24NA of the Native Title Act 1993 have been complied with; and

(b)       the agreement of the native title holders has been obtained.”

11                  At the hearing and pursuant to advice previously given to the solicitors for Pasminco, the appellants relied solely upon being the registered claimants of the native title rights and interests specified in their claim as giving them statutory procedural rights under theNTA.  They did not seek to demonstrate even an arguable case that they were native title holders. It was their procedural rights under the NTA which, the applicants submitted to the learned primary judge, gave rise to an entitlement to final injunctive and declaratory relief.  No interlocutory orders were sought and no affidavits or oral evidence concerning native title were relied upon.

The Second Mooring Authority

12                  On 3 November 1999, Mr Smith sent a letter to Captain Boath referring to the then pending proceedings.  The letter went on to say:

“While reserving our rights, PCML wishes to make fresh application for a Restricted Buoy Mooring Authority, out of an abundance of caution.

Accordingly, I enclose a further application for a Restricted Buoy Mooring Authority at latitude 17 degrees 7.5 minutes south; longitude 139 degrees 35 minutes east.

Would you please process the application at your earliest convenience and advise us of your decision.”

13                  The letter was received by Captain Boath on 8 November 1999.  In the course of the proceedings before Cooper J the State of Queensland advised the Court that it would give notification of Pasminco’s application for the new authority to the appellants under the NTA.  On 12 November 1999, the State of Queensland gave notice to the appellants pursuant to s 24HA of the NTA of Pasminco’s application for the new authority and invited written comments by 9 December 1999. 

14                  On 24 November 1999, Cooper J gave judgment dismissing the appellants’ motion.   On 7 December 1999 the State of Queensland received comments in relation to Pasminco’s application for the new authority from Andrew Chalk Associates on behalf of the applicants and the Carpenteria Land Council Aboriginal Corporation.  However on 10 December 1999 Pasminco commenced installation of the buoy mooring at Investigator Road pursuant to the original authority.

15                  On 16 December 1999, Captain John Watkinson, Executive Director (Maritime) and delegate of the Chief Executive Queensland Transport issued a new authority, Restricted Buoy Mooring Authority CK-006 to Pasminco.  That authority, effective until 16 December 2000, was expressed to be subject to the following conditions:

“(a)     The buoy mooring may only be used by the MV Wunma in the event of a cyclone or the threat of a cyclone.

(b)       The authority will come into effect only when the previous authority CK-005 is surrendered to Queensland Transport; and

(c)        Other legislative requirements, particularly s 86 of the Harbours Act 1955 (Qld) (“the Harbours Act”) must be complied with by Pasminco.”

Pasminco had not, at the time of this appeal, surrendered its previous authority.  On 28 February 2000, the Environmental Protection Agency received an application from Pasminco for ministerial sanction for the buoy mooring pursuant to s 86(3B) of the Harbours Act 1955  (Qld) (now repealed) (“the Harbours Act”).

Statutory Framework - Queensland Laws Affecting the Grant of Buoy Mooring Authorities

16                  There was a general prohibition under s 86(2) of the Harbours Act, upon the construction of works or the placement of structures on the seabed of Queensland waters without the prior sanction of the Governor in Council.  Section 86(2)(a) provided:

“No Harbour Board or Local Authority and no person whomsoever shall commence or construct any harbour works or other works of any kind, or place any pile or other structure in, on, over, through, or across any foreshore or any land lying under the sea within Queensland waters or any land lying under any harbour (including any navigable river), whether the foreshore or land is alienated or held from the Crown or not, nor attempt any of these things, without the sanction of the Governor in Council previously obtained in the manner provided by subsection (3) of this section.”

Section 86(3) contained provisions which include a requirement for the deposit at the office of the Marine Board of Queensland of a plan in duplicate of the proposed works and payment to the Board of the prescribed fee. There is a question whether the section has any application to the buoy mooring in this case. The continuing operation of s 86 and its place in the legislative scheme for regulation of marine works is described in the judgment of Dowsett J.

17                  The Transport Operations (Marine Safety) Act 1994 (Qld) provides for the making of regulations about “approving the establishment of buoy moorings” (s 218(e)).  Regulation 169 of the Marine Safety Regulation provides that the Chief Executive may, by notice in the gazette, define areas of Queensland waters as category 1 or 2 areas for buoy moorings.  Areas not defined are category 3.  No areas have been gazetted. Regulation 170 relevantly provides:

“170(1)  The Chief Executive may issue a buoy mooring authority for –

(a)       a category 2 area; or

(b)       a category 3 area.

     (2)  The classes of buoy mooring authorities are –

(a)       a restricted buoy mooring authority under which only a particular ship owned by the holder of the authority and stated in the authority may be moored at the mooring; and

(b)       an unrestricted buoy mooring authority under which any ship may, with the consent of the authority holder, be moored at the mooring.

     (3)  The procedure for obtaining a buoy mooring authority is in part 6.”

The Chief Executive must be satisfied that the mooring will not significantly interfere with marine safety or the effectiveness or efficiency of the Queensland maritime industry (reg 171). 

Statutory Framework – The Native Title Act

18                  The main objects of the NTA are set out in s 3 of that Act and are in the following terms:

“3.  The main objects of this Act are:

(a)       to provide for the recognition and protection of native title; and

(b)       to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and

(c)        to establish a mechanism for determining claims to native title; and

(d)       to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.”

Section 4 sets out an overview of the NTA which includes the following provisions:

“4(1)  This Act recognises and protects native title.  It provides that native title cannot be extinguished contrary to the Act.

 .

 .

 .

   (2)  Essentially, this Act covers the following topics:

            (a)        acts affecting native title (see subsections (3) to (6));

            (b)        determining whether native title exists and compensation for acts affecting native title (see subsection (7)).

 .

 .

 .

   (3)  There are basically 2 kinds of acts affecting native title:

            (a)        past acts (mainly acts done before this Act’s commencement on 1 January 1994 that were invalid because of native title); and

            (b)        future acts (mainly acts done after this Act’s commencement that either validly affect native title or are invalid because of native title).

  .

  .

  .

   (4)  For past acts and future acts, this Act deals with the following matters:

            (a)        their validity;

            (b)        their effect on native title;

c)                  compensation for the acts.

   …”

Subsections (5), (6) and (7) are not relevant for present purposes.  The NTA binds the Crown in right of the Commonwealth and each of the States and Territories (s 5) and also applies to the coastal sea of Australia (s 6).  It is “intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975” (s 7(1)) which means only that:

“(a)     the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and

(b)       to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity (s 7(2)).”

The NTA is not intended to affect the operation of any law of a State or Territory that is capable of operating concurrently with it (s 8). 

19                  Part 2 of the NTA deals with the Recognition and protection of native title.  So native title is to be recognised and protected in accordance with the NTA (s 10) and is not able to be extinguished contrary to that Act (s 11(1)). 

20                  Division 3 of Part 2  deals with future acts and native title.  The overview provision, s 24AA, provides in subsection (1):

“This Division deals mainly with future acts, which are defined in section 233.  Acts that do not affect native title are not future acts; therefore this Division does not deal with them (see section 227 for the meaning of acts that affect native title).”

As s 24AA further states, Division 3 provides that “…to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division and invalid if not” (s 24AA(2)).  Future acts will be valid if parties to indigenous land use agreements consent to the act being done (s 24AA(3)).  Other bases for the validity of future acts are set out in subs 24AA(4) which, in part, provides:

“ A future act will also be valid to the extent covered by any of the following:

.

.

.

            (e)        section 24HA (management of water and airspace);

.

.

.

            (j)         section 24MD (acts that pass the freehold test -  but see subsection (5));

            (k)        section 24NA (acts affecting offshore places).”

Subsection 24AA(5) directs attention to the superadded requirement of the requirements of the right to negotiate regime imposed on certain classes of future acts by Subdivision P of Division 3, thus:

“In the case of certain acts covered by section 24IC (permissible lease etc. renewals) or section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a “right to negotiate”).”

21                  The term “future act” is defined in s 233 and is of critical significance to the outcome of this appeal.  Section 233 provides:

“ Subject to this section, an act is a future act in relation to land or waters if:

            (a)        either:

                       (i)         it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or

                       (ii)        it is any other act that takes place on or after 1 January 1994; and

            (b)        it is not a past act; and

            (c)        apart from this Act, either:

                       (i)         it validly affects native title in relation to the land or waters to any extent; or

                        (ii)        the following apply:

                                    (A)       it is to any extent invalid; and

                                   (B)        it would be valid to that extent if any native title in relation to the land or waters did not exist; and

                                   (C)        if it were valid to that extent, it would affect the native title.”

Subsection 233(2) relates to legislation which may affect native title and is not relevant for present purposes.

22                  The definition of “future act” in s 233 must be read with s 227 dealing with the term “affects native title”.  That section provides:

“An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.”

The term “act” is also defined in s 226 and includes the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument (s 226(2)(b)).  An act may be done by the Crown in any of its capacities or by any other person (s 226(3)). 

23                  Subdivisions E to N inclusive of Div 3 provide for the validity of various classes of future act, their consequences for native title and the rights of native title holders and registered native title claimants in relation to them.  Broadly speaking, to the extent that a future act is covered by one subdivision, it is not covered by any subdivision that succeeds it in Division 3 (s 24AB(2)).  Section 24AC provides that regulations may be made which impose requirements to notify persons of acts or classes of acts that are to any extent valid under Division 3 whether such notice is required to be given before or after the acts are done.

24                  The subdivisions of Division 3 invoked in the present case were subdivisions H, M and N.  The matter however was debated before his Honour by reference almost entirely to subdivisions H and N.

25                  Subdivision H deals with future acts relating to the management of water and air space.  Thus s 24HA(2) provides:

“24HA(2)  This section also applies to a future act consisting of the grant  of a lease, licence, permit or authority under legislation that:

            (a)        is valid (including because of this Act); and

            (b)        relates to the management or regulation of:

                        (i)         surface and subterranean water; or

                        (ii)        living aquatic resources; or

                        (iii)       airspace.

In this paragraph, watermeans water in all its forms and management or regulation of water includes granting access to water, or taking water.”

Section 24HA(3) provides:

“The act is valid.”

The non-extinguishment principle applies to the act (s 24HA(4)) which means that native title affected by the act continues to exist in its entirety but the native title rights and interests have no effect if the act is wholly inconsistent with their continued enjoyment or exercise (s 238(3)).  They have no effect in relation to the act to the extent of the inconsistency if the act is partly inconsistent with their continued existence enjoyment and exercise (s 238).  Where the future act or its effects are wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect (s 238(6)). 

26                  Section 24HA creates an entitlement to compensation for native title holders affected by future acts to which it applies (s 24HA(5)).  It also confers a right of notification by the person proposing to do the act.  This right is conferred by s 24HA(7):

“Before an act covered by subsection (2) is done, the person proposing to do the act must:

            (a)        notify, in the way determined in writing by the Commonwealth  Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act, or acts of that class, that the act, or acts of that class, are to be done; and

            (b)        give them an opportunity to comment on the act or class of acts.”

27                  Subdivision M applies to legislative future acts (s 24MA) and non-legislative future acts (s 24MB).  The class of non-legislative future acts to which it applies are acts that could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it.  It also includes acts which could be done in relation to the waters concerned if the native title holders concerned held ordinary title to the land adjoining or surrounding the waters.  It is also a condition of the application of the subdivision that a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation of protection of areas or sites that may be in the area to which the act relates and of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions (s 24MB(1)).  The subdivision only applies to a future act to the extent that it relates to an onshore place.  A reference to an act to which the subdivision applies is to be read as referring to the act to that extent only (s 24MC).  The subdivision applies to a future act when, subject to subdivision P, relating to the right to negotiate, the act is valid (s 24MD(1)).  For future acts in these classes other than those amounting to compulsory acquisition of their native title rights and interests concerned the non-extinguishment principle applies and there is an entitlement to compensation (s 24MD(3)).  Subject to certain exceptions which are not relevant for present purposes, procedural rights attach to native title holders and registered native title claimants in relation to the land or waters concerned.  They have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned (s 24MD(6A)). 

28                  Subdivision N deals with acts affecting offshore places.  The relevant parts of s 24NA provide as follows:

“ (1)  This Subdivision applies to a future act to the extent that it relates to an offshore place.  A reference to a future act to which this Subdivision applies is to be read as referring to the act to that extent only.

.

.

. 

    (2)  If this Subdivision applies to a future act, the act is valid.

.

.

.

     (4)  In the case of any other future act to which this Subdivision applies, the non-extinguishment principle applies to the act.

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.

     (8)  In the case of any future act to which this Subdivision applies, the native title holders, and any registered native title claimants in relation to land or waters in the area concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held any corresponding rights and interests in relation to the offshore place that are not native title rights and interests.

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     (9)  If:

            (a)        because of subsection (8) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and

            (b)        there has been no approved determination of native title;

then one way in which the person may give the required notification is by notifying, in the way determined in writing by the Commonwealth Minister for the purposes of this subsection, the following that the act is to take place:

            (c)        any representative Aboriginal/Torres Strait Islander bodies for the area concerned;

            (d)        any registered native title claimants in relation to land or waters in the area concerned.

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     (10)  If:

            (a)        because of subsection (8) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and

            (b)        there has been no approved determination of the native title;

then one way in which the person may give effect to the requirement is:

            (c)        by doing the thing in relation to any registered native title claimant in relation to land or waters in the area concerned; or

            (d)        if there are no such registered native title claimants – by ensuring that any representative Aboriginal/Torres Strait Islander bodies for the area concerned have an opportunity to comment on the doing of the act.”

29                  Subdivision O contains only one section, namely s 24OA, which provides:

“Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.”

30                  Subdivision P, which relates to the right to negotiate, is not applicable in the present case.

31                  It is useful also to refer to the definition of “procedural right” in s 253:

“procedural right, in relation to an act, means:

(a)       a right to be notified of the act; or

(b)       a right to object to the act; or

(c)        any other right that is available as part of the procedures that are to be followed when it is proposed to do the act.”

The Decision at First Instance

32                  After reviewing the facts and the statutory framework, the learned primary judge observed that the procedural rights given by Division 3 of Part 2 of the NTAonly arose where an act or proposed act is or would constitute a future act as defined in s 233.  If not a future act then the holder or registered claimant to native title rights in the affected lands or seas would not obtain the benefit of procedural steps under Division 3 which condition the validity of the consequences grown from the act.  His Honour said:

“In order to avoid any future doubt as to the validity of an act, procedural rights may be extended to the holder of, or the registered claimant to, native title rights or interests in or in respect of the lands and seas to which the act relates by the body or person proposing to do the act.  The purpose for taking such procedural steps irrespective of whether or not the registered claimant has native title in the land or seas which may be affected by the act, is to ensure that the validity extended to the exceptions contained in Division 3 from the general invalidity of future acts, as defined, is not in doubt by the failure to take the procedural steps in Division 3.  The extending of the procedural rights to the registered claimants in those circumstances, prior to determination of the native title interests, does not necessarily mean that in truth and reality the registered claimants have native title rights and interests which are affected by the act, as defined, and are so entitled to the procedural rights being extended if it is sought to establish the act as a future act within the exceptions in Division 3.”

His Honour concluded that the existence of statutory procedures in Division 3 did not, in the case before him, impose on Queensland or Pasminco any duty or obligation to do anything or to follow any particular procedure in doing the acts or the proposed acts complained of.  Thus no final injunction or declaratory relief would lie to enforce Queensland or Pasminco to take those procedural steps for the benefit of the appellants if the acts or threatened acts could be characterised as falling either within subdivision H or subdivision N or either of them.  His Honour referred to The State of Western Australia v The Commonwealth (1995) 183 CLR 373 (“the Native Title Act case”) at 472.

33                  His Honour was of the view, although he thought it unnecessary to decide the point, that a failure to comply with the procedural steps required in subdivisions H and N would not mean that the acts were invalid under the NTA.  In this respect he relied upon the preservation of native title rights and interests under the operation of the non-extinguishment principle in both subdivisions and their provision for rights of compensation.  He referred to the specific provisions of subdivision P dealing with the right to negotiate, where failure to take procedural steps would deny validity.  His Honour said:

“The subdivisions under consideration expressly provide for validity of acts falling within the description of the acts covered by the subdivisions and are silent as to the consequences of non-compliance with s 24HA(7) and/or s 24NA(8).  In these circumstances and applying the principles explained in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391, I would, if required, have concluded that failure to follow the procedural steps in s 24HA(7) and s 24NA(8) would not deny validity to the acts complained of assuming those acts were covered by s 24HA(1) and s 24NA(1) or either of them.  As to this assumption I express no opinion.”

Having concluded that the appellants had no enforceable procedural rights under subdivisions H or N which would entitle them to the final relief they sought, the only basis upon which relief might be obtained was either interlocutory relief in the native title procedures or final relief to enforce the native title rights and interests which they claimed.  However they had eschewed seeking interlocutory relief pending determination of their claim.

34                  His Honour held that registration of the appellants’ claim and the description of the native title or native title rights and interests claimed therein did not prove to a requisite degree the necessary factual circumstances to sustain the final relief claimed on the basis of a right to protect and enforce native title in the proposed site or to make out the elements of the definition of a future act.  Having failed to prove up the requisite factual circumstances, they failed to prove that the laying of the buoy mooring was a threatened tortious act entitling them to injunctive or declaratory relief against Pasminco.  That failure also meant there was no basis for finding that the granting of the authority or the laying of the buoy mooring would be a “future act”. 

35                  Turning to the alternative claim for relief based on invalidity of the authority by reason of non-compliance with the relevant State statutes, his Honour rejected a challenge to the appellants’ standing on the part of Pasminco.  He expressed doubt on whether the issues raised on the notice of motion relating to non-compliance with the procedural steps under the NTA was, in truth, a matter arising under the NTA.  The subsistence of native title is not dependent upon the operation of the NTA or a determination under the NTA nor is enforcement of native title dependent upon federal law.  In the present case it was said the respondents did not raise the NTA or any provision of it as grounding a defence to the claims of the applicants.  In those circumstances there were serious doubts that the issues raised on the notice of motion would fall within s 213(2) of the NTA as matters arising under that Act.  The only possible matter that might arguably be said to be a matter arising under the NTA was whether the grant of the authority and the laying of the buoy would be a future act within the meaning of s 233.  His Honour however found it unnecessary to form a concluded view on that issue.

36                  As to the question of compliance with State law, these were not matters intimately related to the issue of whether the acts complained of were future acts as defined by s 233.  The enforcement of the State law was a disparate and independent matter and did not fall within the accrued jurisdiction of the Court.  His Honour qualified these observations by saying that nothing which he had said should be read as doubting the jurisdiction of the Court to grant interlocutory relief in aid of the proceedings brought in the Court for the determination of native title.  However, the motion was not litigated as such a case.

Leave to Appeal

37                  The appellants in this case contend that their appeal can only be brought by leave.  Their motion, although brought in the substantive native title proceedings, raised a separate claim which was fully disposed of by his Honour.  In my opinion leave was not necessary.  If it were, then on the principles most recently outlined in Johnson Tiles Pty Ltd v Esso Australia Ltd (2001) ATPR 41-974 at 42,541-42,544 (“Johnson Tiles”), it should be granted.

The Grounds of Appeal

38                  There were seven grounds of appeal set out in the amended notice of appeal.  They are as follows:

1.         His Honour erred in holding that where an act was proposed which would affect land or waters in relation to which the appellants were registered native title claimants under the Native Title Act, the appellants were not entitled to require that they be notified and accorded other procedural rights under Part 2 Division 3 of the Native Title Act unless they proved that they were the holders of native title within the meaning of s 223 of the Native Title Act.

2.         His Honour erred in failing to hold that where an act is proposed to be done in relation to land or waters which will be affected by the act and there are registered native title claimants in relation to that land or waters they are entitled to procedural rights granted by Part 2, Division 3 of the Native Title Act by virtue of their status as registered native title claimants having claims in relation to the land or water on the Register of Native Title Claims.

3.         His Honour erred in holding that any failure to comply with the procedural requirements of subdivisions H or N of Division 3 of Part 2 of the Native Title Act would not affect the validity of the act to the extent that it affects native title.

4.         His Honour erred in failing to hold that the Court had jurisdiction to consider the claims that the placement, establishment or construction of the buoy mooring would be invalid under Queensland law and in particular under s 86 of the Harbours Act 1955 (Qld).

5.         His Honour erred in failing to consider and determine whether the placement, establishment or construction of the buoy mooring would be invalid:

            (a)        absent a valid authority under the Marine Safety Regulation, and

            (b)        without the sanction of the Minister previously obtained pursuant to the provisions of s 86 of the Harbours Act 1955.

6.         His Honour erred in holding that there was “no reason why costs should not follow the event” in circumstances where s 85A of the Native Title Act provided that, in the absence of circumstances justifying another order, the parties must bear their own costs.

Jurisdiction of the Court

39                  Part 4 of the NTA entitled “Determinations of the Federal Court” applies in proceedings in relation to applications filed in the Federal Court that relate to native title (s 80).  Section 81 of the NTA provides:

“The Federal Court has jurisdiction to hear and determine applications filed in the Federal  Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.”

In addition to this provision, is s 213 which appears in Part 13 entitled “Miscellaneous” and which provides:

“(1)  If, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in this Act.

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     (2)  Subject to this Act, the Federal Court has jurisdiction in relation to matters arising under this Act.”

40                  The Judiciary Act 1903 (Cth) provides, in s 39B(1A), which was inserted in that Act in April 1997, that:

“The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

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(c)        arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.”

41                  Section 213 of the NTA stands unamended since 1993.  Section 39B(1A) of the Judiciary Act confers general jurisdiction on the Court in matters arising under a law of the Commonwealth.  The generality of that grant of jurisdiction is subject to any restrictions imposed by statute in respect of any particular subject matter.  Such a restriction, albeit of a procedural character, may be seen as imposed by s 213(1) of the NTA.  Prior to the 1998 amendments the jurisdiction of the Court to decide a native title determination application did not arise until the application had been lodged with the National Native Title Tribunal, the National Native Title Tribunal had failed to resolve it and the matter had been referred to the Court under s 74.  This was the effect of ss 80 and 81 prior to the 1998 amendments.  The amendments altered the process so that applications for native title determination were thereafter to be commenced as proceedings in the Court and referred to the Tribunal for mediation subject to the power of the Court to terminate such mediations.  This is reflected in the current form of ss 80 and 81.  The restriction set out in s 213(1) remains but seems to have little effective operation in light of the new procedures.

42                  The jurisdiction of the Court under the NTA prior to the 1998 amendments, was referred to by the High Court in Fejo v Northern Territory (1998) 195 CLR 96 (“Fejo”) at 123.  That case concerned proceedings for declaratory and injunctive relief brought on behalf of the Larrakia People in respect of the grant of a lease over land in relation to which they asserted native title.  The Court however did not determine the jurisdictional question, focussing rather upon the requirements for interlocutory injunctive relief.  The application in the Fejo case was initiated in the Federal Court after the enactment of s 39B(1A) of the Judiciary Act.  There was no discussion of the relationship between s 213 of the NTA and s 39B(1A) of the Judiciary Act.  An assumption was made for the sake of argument that the “matter…arose under the Act so as to attract the jurisdiction of the Federal Court” (123). 

43                  For present purposes a registered claimant who seeks relief grounded upon asserted non-observance of procedural requirements imposed by Div 3 of Part 2 of the NTA invokes the jurisdiction of the Court in a matter arising under the NTA.  The claim in the present case, which is of that character, does not involve any assertion of native title rights and interests nor any relief which could be seen as amounting to a determination of native title for the purposes of s 213.  The jurisdiction invoked is therefore unaffected by the restriction in s 213(1).   That is not to say that the relief sought is well-founded or the application tenable.  Those are issues which are within the authority of the Court to adjudicate once it is called upon so to do.  Insofar as the declaratory and injunctive relief claimed in this case was based upon the invalidity of the Restricted Buoy Mooring Authority for non-compliance with the NTA, it was within the jurisdiction of the Court to decide the question under s 213 of the NTA and/or s 39B(1A) of the Judiciary Act.  It was within the Court’s power, under s 23 of the Federal Court of Australia Act 1976 (Cth), to grant the relief claimed.

44                  The question whether the Authority was invalid for failure to comply with the requirements of State law is, at first blush, arguably so connected with the questions raised under the NTAthat it forms part of the matter before the Court and is therefore within its accrued jurisdiction.  After all, if the asserted future act is or can be declared a nullity under State law then cadit quaestio.  However the jurisdictional debate about the State law question may be academic depending upon the outcome of the federal question.  The federal question, which attracts the jurisdiction of the Court, is whether the appellants, as registered claimants, have on that basis alone a right to require compliance with procedures under Div 3 of the NTA as though the grant of the Authority were a future act with respect to the asserted native title rights.  Absent any such right and absent any evidence of, or reliance upon, native title rights and interests affected by the grant of the Authority, there is a real question whether the State question is encompassed by the federal matter.  This issue is further considered later in these reasons.  

Recognition and Protection of Native Title – Discussion of the Statutory Setting

45                  The common law of native title comprises rules for the recognition, by the Australian legal system, of rights and interests in land arising under the traditional laws and customs of indigenous groups.  That such recognition can be accorded was established by the decision of the High Court in Mabo v The State of Queensland (No 2) (1992) 175 CLR 1.  Extinguishment of native title by legislative or executive or other action is a metaphor for limits upon the extent to which recognition will be accorded by the common law.  So where extinguishment of native title is said to have occurred, the common law will not recognise it notwithstanding the subsistence of rights and interests in land according to the traditional law and custom of the relevant indigenous group. As the High Court said in Fejo at 128:

“The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title.”

Extinguishment in the sense of non-recognition is, of course, to be distinguished from the case in which the subject matter of recognition, that is to say the traditional law and custom and the connection to land or waters which it defines, has been abandoned or is no longer the subject of observance by any living persons.

46                  The NTA, for the most part, provides a framework for the common law recognition of native title and statutory measures for its protection.  It affects the common law of recognition to the extent that it includes rules effecting temporary or permanent  extinguishment where lands and waters have been the subject of legislative or executive acts which may or may not have had that effect according to the common law rules.  So the NTA defines “previous exclusive possession acts” which are taken to have extinguished native title if attributable to the Commonwealth (s 23C(1)(a)).  It authorises each State or Territory to make laws to similar effect in respect of such acts attributable to that State or Territory.  For some classes of act a “non-extinguishment principle” is defined (s 238) which effects temporary non-recognition of native title rights and interests in land affected by an act.  In some cases it provides, contrary to the common law, for the “revival” of native title setting aside extinguishment at common law.  This is done in ss 47, 47A and 47B in relation to claims by the holders of pastoral leases and the occupiers of Aboriginal reserves and vacant crown land.

47                  The NTA provides also for the protection of native title.  It creates, in Div 3 of Pt 2, a broad procedural framework for the doing of future acts.  A future act by definition is an act which, the NTA apart, validly affects native title in relation to the land or waters to any extent or is invalid because of the effect it would have on native title were it to be valid (s 233(1)).  An example, in the latter category, would be an act attributable to a State which had a discriminatory affect on native title in a way that was inconsistent with the provisions of the Racial Discrimination Act.  Another example, would be an act attributable to the Commonwealth which, by its effect on native title, could be said to have effected an acquisition of property on other than just terms contrary to the provisions of s 51(xxxi) of the Constitution.  The protective mechanisms in respect of future acts, and those relied upon in this case, are to be found in Div 3 of Pt 2 of the NTA.  The characterisation of an act as a future act is critical to the application of the Division.  For “[a]cts that do not affect native title are not future acts; therefore this Division does not deal with them” (s 24AA(1)). 

48                  To fall within the definition of “future act” an act must “affect native title”.  It does so if “…it extinguishes the native title rights and interests or if it is otherwise inconsistent with their continued existence, enjoyment or exercise”.  The definition speaks in the present tense on the evident premise that the future act is done.  This is consistent with the provisions of Div 3.   The Division conditions the validity of each of various classes of future acts by the application to it of a subdivision relevant to that class.  The subdivisions also impose procedural requirements such as prior notification of proposed future acts to registered native title claimants and others and the provision of an opportunity to comment on the proposed future act.  These requirements are not in terms expressed as conditions of validity of the future acts to which they apply.  That leaves open the possibility that in some cases, as a matter of implication, they do condition the validity of the proposed acts.  It is useful to refer to the various subdivisions in a broadly comparative way to provide a context for the particular provisions in issue in this case.  

49                  If a future act, when done, is the subject of an agreement on the Register of Indigenous Land Use Agreements, in the way set out in s 24EB, which appears in subdivision E, it is “valid to the extent that it affects native title in relation to land or waters in the area covered by the agreement” (s 24EB(2)).  The various classes of such agreements and the requirements for their registration are set out in subdivisions B, C and D of Div 3.  In substance, a future act done under such an agreement will have been consented to either specifically or as one of a class of acts to which the parties to such an agreement consent. 

50                  Subdivision F provides for the validity of future acts on the basis that procedures have been followed with outcomes indicative of an absence of native title.  So where a non-claimant application is filed, absent any native title determination application over the area having been entered on the Register of Native Title Claims or any entry in the National Native Title Register specifying that native title exists in relation to the area, a future act done in the area will be valid (s 24FA).  Such an act will also be valid where there is an entry on the National Native Title Register specifying that no native title exists in the area (s 24FA and 24FD).  In the event that these procedural indications are wrong there is a right of compensation for native title holders if the future act extinguishes their native title to any extent (s 24FA(1)).

51                  Subdivision G declares the validity of future acts involving primary production activities. The criterion of validity for each class of future act covered by a section in the subdivision is the application of that section to that class of act.  There is superimposed a duty to notify, inter alia, registered native title claimants before the relevant future act is done and to give them an opportunity to comment on the act or class of acts.  But that is not expressed to be a condition of the validity of the future act (ss 24GB(9), 24GD(6), 24GE(1)(f)).

52                  Subdivision H, relevant provisions of which have already been set out, concerns future acts relating, inter alia, to the management or regulation of surface and subterranean water.  It covers legislative future acts in that category (s 24HA(1)) and the grant of leases, licences, permits or authorities under such legislation (s 24HA(2)).  Senior Counsel for the appellants expressly disclaimed the proposition that the grant of the Restricted Buoy Mooring Authority in this case was a future act covered by subdivision H. This appeared to constitute an abandonment of so much of Appeal Ground 3 as related to his Honour’s findings about the applicability of subdivision H.  This was later said not to be the position.  In respect of future acts to which its only section, s 24HA, applies their validity is asserted without any express condition.  The necessary condition of their validity is that they are acts to which the section applies.  There is, as in subdivision G, a duty imposed upon the person proposing to do the act to notify, inter alia, registered native title claimants and give them an opportunity to comment on the act or class of acts proposed (s 24HA(7)).  There is no express linkage between that duty and the validity of the act which appears to be determined solely by the application of the section.  Indeed, in the Explanatory Memorandum to the Native Title Amendment Bill 1997 in connection with s 24HA(7) it is said:

“Failure to notify will not affect the validity of the future act.”  H of R, Explanatory Memorandum to Native Title Amendment Bill 1997 par 10.20.

53                  Subdivision I relates to future acts which involve renewals or extensions in the exercise of legally enforceable rights or pre-existing good faith offers, commitments, arrangements or undertakings (pre-existing right-based acts) (s 24IB).  It also covers what are called permissible lease renewals (s 24IC).  The future acts to which the subdivision applies are declared to be valid save for those to which subdivision P, which establishes the right to negotiate for certain classes of future acts, applies (s 24ID(1)).  The same model for the declaration of validity is followed as in subdivision H.  That is to say, the condition of validity is the application of the subdivision or the relevant section as the case may be.  There is also a free-standing duty of notification before the act is done, linked to an opportunity for registered native title claimants to comment (s 24ID(3)).  In certain cases procedural rights of the kind set out in s 24MD(6B) are applicable before the future act is done.

54                  Subdivision J relates to the implementation of pre-existing reservations, proclamations, declarations, conditions, permissions or authorities under which land or water was to be used for a particular purpose.  It also declares the validity of such acts (s 24JB(1)).  There are notification requirements in relation to public works and National, State and Territory Park Management Plans.  These are duties imposed on the proponents and not expressly linked to the validity of the future acts (s 24JB(6) and (7)).

55                  Subdivision K relates to future acts providing facilities for services to the public and declares their validity.  In a departure from the model of earlier subdivisions, it confers upon native title holders and registered native title claimants “…the same procedural rights they would have in relation to the act on the assumption that they held ordinary title or a non-exclusive agricultural or pastoral lease to the extent that the land concerned is covered by such a lease” (s 24KA(7)).  If in the exercise of those procedural rights, the native title holders are entitled to have matters considered those matters include their native title rights and interests (s 24KA(7A)).  The latter provision does not in terms apply to registered native title claimants.

56                  Subdivision L covers low impact future acts and declares them to be valid (s 24CA(3)).  There is no notification or other procedural requirement for such acts. 

57                  Subdivisions M, N and O have been referred to in the statutory framework set out earlier in these reasons.  Subdivision P relates specifically to the right to negotiate and sets up a special regime for the acts to which it applies, which need not be considered further here.  It is to be noted however that it specifically treats as invalid future acts done otherwise than in compliance with its requirements (s 28).

58                  As appears from the provisions of each of the subdivisions referred to in Div 3 of Pt 2, the acts which they validate must be future acts.  Their validation by a particular subdivision is conditioned upon their characterisation as a future act to which that subdivision or a section within it applies.  The subdivisions which provide for prior notification to registered native title claimants and others do not appear to condition the validity of the future acts to which they apply upon compliance with that requirement.  This is consistent with the express statement in the Explanatory Memorandum relating to s 24HA(7).  The subdivisions which accord procedural rights to registered native title claimants, which are the same as those accorded analogous interest holders, are similarly structured to the subdivisions providing for notification.  Absent some express provision, as in subdivision P, it is not to be supposed, having regard to the statutory setting, that non-compliance with those procedural requirements goes to validity.  Consistently with that conclusion, non-compliance with procedural requirements may support injunctive relief restraining the doing of the act until the relevant procedures have been complied with.

No Future Act Asserted

59                  The preceding observation is strictly obiter for in the present case the question of the consequences of non-compliance with the procedural rights conferred by subdivisions H, M or N does not arise, even assuming the applicability of one of them to the grant of the Restrict Buoy Mooring Authority.  For there was nothing put to his Honour or to this Court by way of contention that the granting of the Restricted Buoy Mooring Authority affected native title rights and interests.  In other words, there was no contention that the grant of the Restricted Buoy Mooring Authority was a future act.  It was submitted that the definition of a future act could be understood as encompassing an act which “may” affect native title.  But this would require a re-writing of the statutory definition in s 233 which would significantly alter the operation of the act.  Such a course is not justified by the language of a statute.

60                  It is important to bear in mind that this is not a claim for interlocutory relief.  In such a case it may be said that the fact of registration could support the contention of an arguable case for the existence of native title rights and interests in land or waters concerned which might be affected by the proposed act.  Indeed in Fejo the Court said, at 125:

“Ordinarily, the fact that an applicant for injunction is a registered native title claimant will suggest, if not demonstrate, that there is a claimed native title that is arguable (the Registrar being obliged to accept the application unless of the opinion that it is frivolous or vexatious or that prima facie the claim cannot be made out) (s 63(1)).”

It should be interpolated here that the Fejo case was dealing with a native title determination application registered under the pre-amendment provisions of the NTA.  The claim in this case was in the same category.  The amendments to the NTA, passed in 1998, require far more rigorous scrutiny before registration and would, on the strength of the observations cited in Fejo, lend greater support to the proposition that a claim registered in accordance with those requirements is an arguable claim.  However in Fejo the Court went on to say at 125:

“But the Registrar’s administrative act of accepting an application does not put the question of title beyond debate on an application by a registered native title claimant for injunction or on an application to dismiss summarily an action instituted to obtain relief of that kind.”

61                  This is the complete answer to the appellants’ case based on the NTA.  The procedural rights which they assert as registered native title claimants will only operate in relation to future acts.  Absent any basis for contending that the grant of the authority affected native title rights and interests, there is no basis for concluding that it was a future act.  The difficulty emerges plainly from the grounds of appeal which allege error on the part of his Honour in relation to findings about proposed “acts” affecting land or waters in relation to which the appellants were registered native title claimants.  As his Honour recorded in his reasons for judgment, the appellants expressly stated in an exchange of letters with the solicitors for Pasminco, that they would not be seeking an order that native title exists nor would they rely on their being a triable issue.  They relied on the registration of their native title claim and the rights and interests appearing on the Register.  

62                  His Honour was correct in the conclusions he came to which are challenged in Grounds 1 and 2 of the appeal.  Having regard to that conclusion, the question whether failure to comply with the procedural requirements of subdivisions H or N affects the validity of a future act, does not fall for decision in this case.  It seems doubtful however, that non-compliance will affect validity.

The State Claim

63                  There remains the question whether the validity of the grant of the Mooring Authority under State law is a matter that falls within the jurisdiction of the Court.  It is suggested that this is necessarily so because the definition of “future act” in s 233(1)(c) imports a condition that “it validly affects native title in relation to the land or waters to any extent”.  I assume, without deciding, that the question of the validity of an act done under State law would arise where the question whether it was a future act was in issue.  But that was not in issue in this case because the status of the grant as a future act was not asserted save on the untenable basis, already rejected, that a future act is one which “may” affect native title.  The appellants’ argument turned upon the fact that their claim was registered and the fact that the grant of the authority was an act affecting the area under claim.  There was no reliance upon the existence of native title rights and interests.  There was therefore, implicit in their argument, a disavowal of any reliance upon the proposition that the grant of a Mooring Authority was a future act.  The question whether the condition of validity under State law, said to be necessary to its characterisation as a future act, had not been met was not before the Court on the case made under the NTA.   That is to say the validity of the grant under State law was not part of the federal claim.

64                  The question whether the State claim fell within the accrued jurisdiction of the Court depends upon whether it may be seen as part of the matter arising under the NTA which the Court is authorised by that Act to adjudicate.  That question is answered by determining whether the claim for relief based upon non-compliance with State law is part of the same controversy as the claim for relief based upon non-compliance with the NTA.  The criteria for determining that question were recently discussed in Johnson Tiles.  It is not necessary to revisit the full scope of that discussion here.  It suffices to refer to the passage from the judgment of Gummow and Hayne JJ in Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 585-586:

“What is a single controversy ‘depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships’.  There is but a single matter if different claims arise out of ‘common transaction and facts’ or ‘a common substratum of facts’, notwithstanding that the facts upon which the claims depend ‘do not wholly coincide’.  So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as for example in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination.  Conversely, claims which are ‘completely disparate’, ‘completely separate and distinct or ‘distinct and unrelated’ are not part of the same matter.” [Footnotes omitted]

As the Full Court observed in Johnson Tiles at [85], jurisdiction conferred on this Court in respect of a matter authorises the determination of all the claims, federal and non-federal, which are involved in the controversy.  The fact that the federal claim is determined adversely to an applicant does not thereby deprive the Court of jurisdiction to deal with the non-federal claim.  They are all part of the federal jurisdiction conferred upon the Court.  Nor does it matter to the scope of that jurisdiction whether the federal claim is defeated on a question of law or fact.

65                  His Honour expressed doubt in his judgment about whether the issues raised on the notice of motion before him fell within s 213(2) of the NTA as matters arising under the NTA.  With respect to his Honour, the better view is that they did.  His Honour then turned to the question of the claim based upon non-compliance with State law which he characterised as “a disparate and independent matter to any matter arising under the NTA”.  The definition of “future act” required that other than for the provisions of the NTA the act should validly affect native title in relation to land or water to any extent.  That is to say, to be a future act the act had to be valid under relevant State legislation.  His Honour said:

“If the act is unlawful for whatever reason under State law, no question of its validity for any purpose arises under the NTA.  To make out the existence of a future act as defined in the NTA, the applicants must make out as part of their claim, that the act or acts complained of, apart from the NTA, are valid acts which affect native title.  To seek to prove to the contrary is inconsistent with there being a real and substantial connection with the matters arising under the NTA.”

His Honour then went on to say that the alternative claim did not satisfy the requirements of a matter falling within the associated or accrued jurisdiction of the Court.  If it were the case that the appellants were contending, in the proceedings before his Honour, that the grant of the Authority was a future act, then there would be no doubt that the claim for relief based on non-compliance with a State act would have comprised part of the controversy before him and fallen within the accrued jurisdiction of the Court.  However, as already noted, the position adopted by the appellants did not involve any such contention.  In effect their position was that their status as registered claimants and the fact that the grant of the Authority related to land and waters within the area of the claim, was sufficient to condition the validity of the grant upon compliance with the procedural requirements of whichever subdivision was applicable.  This was a narrow question severable and distinct from that raised in relation to compliance with the State law albeit some elements of the relief claimed were the same.  In the circumstances, the latter claim did not form part of the controversy which was before the court and was rightly found not to fall within the court’s accrued jurisdiction. 

66                  It might be added that had the State claim been assessed as falling within the accrued jurisdiction of the Court there would have been a serious question about the standing of the appellants to pursue it.  And even were that question resolved in their favour, as it was by his Honour, a serious question of the utility of the relief claimed would have arisen having regard to the subsequent history of the matter involving the rectification of the deficiencies asserted in respect of the first Authority.  Any assessment of the utility of relief granted in this Court in respect of the State claim could not have regard to the appellants’ contentions in relation to the NTA for those contentions fell upon the basis that no assertion was made of reliance upon the existence of native title rights or interests which might have been affected by the grant of the authority.  I should add, that if I am wrong on the jurisdictional question, I agree with the judgment of Dowsett J on the merits of the claim of invalidity under State law.

67                  Appeal Grounds 4 and 5 therefore fail.

Costs

68                  I agree with the reasoning of Dowsett J leading to the conclusion that the costs order made by his Honour should not be disturbed. 

Conclusion

69                  For the preceding reasons the appeal will be dismissed.  I agree with Dowsett J that the parties should have the opportunity to make submissions on the costs question in writing.

Associate:

Dated:              11  April 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

MERKEL J:

70                  The background to the present appeal is set out in the other judgments.  It is unfortunate that the operation of the future act provisions of the Native Title Act 1993 (Cth) (“the NTA”) has been required to be considered by the Full Court in the questionable circumstances that have arisen in the present case.  As French and Dowsett JJ have explained, for the purposes of the NTA, a future act is an act that affects native title and not an act that might affect native title.  Thus, the grant of the Restricted Buoy Mooring Authority (“the Authority”) is only capable of being a future act if the appellants establish that it affects native title.  The appellant’s claim in their motion before the primary judge was presented solely on the basis that they are registered claimants of the native title rights and interests specified in their claim for a determination of native title.  It was therefore inevitable that the motion would fail as the appellants did not seek to establish the existence of any such rights or interests.  In those circumstances, the consequences that might follow from the fact that the procedural requirements laid down in Subdivisions H, M or N of Div 3 of Pt 2 of the NTA were not met in respect of the Authority do not arise for consideration.

71                  Of course, rather than proceed as they did, it was open to the appellants to challenge the validity of the Authority in their proceeding for a determination of native title and to apply for interlocutory relief to maintain the status quo in respect of the Authority pending that determination.  It was also open to the appellants to challenge the validity of the Authority in a discrete proceeding under the NTA, but they would have to establish the existence of native title, or of native title rights or interests that are affected by the Authority, in order to establish that the grant of the Authority was a future act.

72                  Notwithstanding the threshold difficulty confronting their claim, the appellants addressed extensive argument as to the consequences of a failure to afford procedural rights to native title claimants in accordance with the future act provisions of Div 3 of Pt 2 of the NTA.  In particular, the appellants argued that non-compliance with those provisions results in invalidity of the future act.  For the reasons given by French and Dowsett JJ, there are substantial and cogent grounds for concluding that a future act that falls within an applicable subdivision of Div 3 of Pt 2 of the NTA will not be invalid merely because a procedural requirement set out in the subdivision had not been complied with.  In my view, however, it is preferable to determine this issue, which is one of considerable importance, in a context where the existence of native title, and the question of how a future act affects it, have been determined.

73                  I would add that even if non-compliance with the statutory procedural requirements does not invalidate a future act, it does not follow that the procedural rights conferred under the relevant statutory provisions are illusory or ineffective.  The procedural rights are important entitlements conferred, for an obvious purpose, on native title claimants or holders in certain circumstances.  Although the NTA may not, in all cases, provide an effective or adequate statutory remedy for the failure to afford those rights, equity can intervene to protect or give effect to them: see Fejo v Northern Territory of Australia (1998) 195 CLR 96 at 123 and 139; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 74 ALJR 604 at 621; and Carpentaria Land Council Aboriginal Corporation v Queensland (1998) 83 FCR 483 at 508.  As the appellants have failed to establish that the grant of the Authority is a future act the issue of equitable intervention or relief does not arise for consideration.

74                  The remaining issue relates to whether the appellants’ claim that the Authority was invalid under State law falls within the jurisdiction of the Court and, if so, whether the claim has been made out.  The questionable procedure adopted by the appellants in the present case has had the effect of concealing, rather than revealing, the real justiciable controversy between the parties.  That controversy relates to the appellants’ claim that the Authority was invalid on the grounds that it was a future act that failed to comply with the procedural requirements of Div 3 of Pt 2 of the NTA and that it failed to satisfy the relevant requirements of State law.  Plainly, determination of the validity of the Authority under State law is an essential step in determining whether the Authority is a future act under the NTA as only a valid act can affect native title: see s 233(1) of the NTA.  Further, the Federal and State law claims are alternative claims of the appellants for the same substantive relief, namely a declaration of the invalidity of the Authority and consequential injunctive relief.

75                  As was observed by Gummow and Hayne JJ in Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 586 where different claims are so related that the determination of one is essential to the determination of the other, or where there are alternative claims for the same relief and the determination of one will either render the other otiose or necessitate its determination, there is but a single matter.  The controversy as to the validity of the Authority under the NTA and under State law would therefore appear to be unseverable parts of the one matter which arises under the NTA: see s 213(2) of the NTA.

76                  The question remaining, however, is whether the procedure adopted by the appellants of electing to rely solely on their status as registered native title claimants, rather than on the existence of native title, resulted in the State law aspect being a different controversy or matter.  The differences between the approaches taken by the primary judge, French J and Dowsett J to the Court’s jurisdiction in the present case in respect of the claims under State law may have arisen largely because of the misconceived procedure adopted by the appellants of seeking to have the validity of the Authority finally determined independently of the existence of the native title claimed by them.  In my view, the fact that the appellants elected to contest the real justiciable controversy between the parties on a narrow, but misconceived, evidentiary basis does not affect the true characterisation of that controversy.  Accordingly, the Court has jurisdiction in respect of the Federal and the State claims.

77                  The procedure adopted by the appellants has also led to different approaches being taken by the parties as to whether the orders made were final or interlocutory orders for the purposes of the appeal.  In my view the orders were final orders as they finally disposed of the matter in controversy, namely the appellants’ claims of invalidity of the Authority.

78                  Finally I agree, for the reasons given by Dowsett J, that the appellants’ challenge to the validity of the Authority under State law has not been made out.

79                  Accordingly, I also agree that the appeal is to be dismissed, but that the parties be afforded an opportunity to make further submissions on the question of the application of s 85A of the NTA.

Associate:

Dated:              11  April 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

DOWSETT J:

Background

80                  The appellants are the applicants in native title proceedings QG 207 of 1999, otherwise known as the “Wellesley Islands Native Title Claim”.  They are registered as claimants in accordance with the provisions of the Native Title Act 1993 (Cth)(the “Native Title Act”).  Their claims are partly in respect of the seas and submerged lands of the Gulf of Carpentaria.  The respondents to this appeal are respondents to those proceedings.  The third respondent (“Pasminco”) is the operator of the Century zinc mine in far north Queensland.  The fourth to tenth respondents did not appear on the hearing of the appeal.  The eleventh respondent made only limited written submissions.

81                  The relevant facts appear from the following paragraphs of the judgment of Cooper J:

3.         Pasminco Century Mine Ltd (“Pasminco”) is the operator of the Pasminco Century Mine.  As part of its operations it intends to transport mineral deposits mined from the mine to overseas bulk carriers anchored in the Gulf of Carpentaria.  The proposed route to the offshore anchorage does not cross the seas or submerged lands the subject of the applicants’ claim.  However, this area is prone to cyclonic weather during the cyclone season.  In consequence, it is necessary that the barge to be used by Pasminco have access to a safe haven in the event of cyclonic weather.  Pasminco identified an area known as Investigator Road between Bentinck and Sweers Islands as a safe place for a mooring in the event of cyclonic conditions.  The site chosen is within the area of the registered claim.

4.         Pasminco applied under reg 123(d) of the Transport Operations (Marine Safety) Regulation 1995 (Qld) (“the Marine Safety Regulation”), for an authority to establish a buoy mooring.  The application was made on 12 July 1999 to Queensland Transport - Marine Operations.  The application was for a Restricted Buoy Mooring Authority.  The nominated ship was the “MV Wunma”, a bulk carrier transfer vessel of 110 metres with a draft of 3.85 metres.  The application was accompanied by a chart extract which showed the proposed position of the mooring and fixed its position by bearings taken from North Fowler Island, Raft Point on Bentinck Island and Inscription Point on Sweers Island.  The application also was accompanied with an engineering drawing of the proposed mooring.

5.         On 6 August 1999 a Restricted Buoy Mooring Authority was issued by Captain A Boath, the Acting Regional Harbour Master (Cairns).  It required as a condition that the mooring be placed within thirty days of the date of issue of the authority which was shown as 27 July 1999.  The location details were omitted from the face of the authority under the heading dealing with the location of the proposed mooring.  Mr Campbell Smith, a marine consultant to Pasminco, deposed to attending on Captain Boath on 12 August 1999 and requesting that he extend the time within which to lay the mooring to ninety days from the date of issue of the authority, and insert the location co-ordinates into the space provided in the authority.  Mr Smith deposes that Captain Boath agreed to do both, and the authority was amended and initialled by Captain Boath in two places.  The first initialling records the varied time condition.  The second initialling is against the provision for location details.  However, Captain Boath did not insert the details of the approximate latitude and longitude of the mooring location.  Mr Smith’s evidence in this respect was not challenged and I accept it.

6.         No notice of the application for the Restricted Buoy Mooring Authority was given to the applicants by Queensland Transport or Captain Boath as the delegate of the Chief Executive for the purpose of reg 170(1) of the Marine Safety Regulation.  Nor was any notice given to them of the grant of the authority to Pasminco.  There is some evidence that some of the applicants were aware by 6 July 1999, as a consequence of meetings on Sweers, Bentinck and Mornington Islands, that an application would be made for a buoy mooring authority for the “MV Wunma” in the event of a cyclone and that the location of the proposed mooring was between Sweers and Bentinck Islands in the Investigator Road.

82                  On or about 2 September 1999 the appellants’ solicitors wrote to Pasminco’s solicitors, complaining that the appellants had neither been notified of the application nor given an opportunity to comment upon it.  They sought an undertaking that Pasminco would not “carry out any construction, excavation or other works to place the mooring” until such time as various matters were determined (AB 14-17).  Between 2 September and 21 October 1999 correspondence passed between the legal advisers.  On 21 October Pasminco’s legal advisers indicated that it intended to install the mooring “next week”. (AB 58)  On 25 October the appellants moved in the native title proceedings for orders designed to establish that the authority (the “first authority”) was invalid, to restrain the placement of any mooring pursuant to it and to restrain use of any mooring so placed.  Initially, the appellants sought both final and interlocutory relief, but at the hearing of the motion on 8 and 9 November, they sought final relief only.  This is of some importance for present purposes.  On 24 November, Cooper J dismissed the motion.  That order is the subject of this appeal.  On 3 November, “out of an abundance of caution”, Pasminco had lodged a fresh application.  The first respondent notified the appellants of it on 12 November, inviting written comments by 9 December 1999.  On 10 December, Pasminco commenced installation of the mooring.  It is now in place.  A second authority (the “second authority”) was issued on 16 December 1999.

83                  The appellants’ challenge to the validity of the first authority and of any actions pursuant thereto is based upon their claim that as native title claimants, they were entitled to the benefit of certain procedural rights under the Native Title Act, which rights were not observed in the process of issuing the first authority.  This claim depended upon the issue of the first authority and actions thereunder being “future acts” as defined in the Native Title Act.  His Honour concluded that the appellants had not demonstrated that this was so.  The appellants also submitted that the first authority was invalid because of certain alleged breaches of relevant Queensland law.  His Honour considered that  this argument was beyond the jurisdiction of the Court. 

Leave to Appeal

84                  Pursuant to subs 24(1) of the Federal Court Act 1976 (Cth) the Court has jurisdiction to determine appeals from judgments of the Court constituted by a single judge.  However subs 24(1A) provides:

An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

85                  Curiously, the appellants assert that they require leave to appeal, whilst the first respondent and Pasminco submit that there is an appeal as of right.  Gibbs J (as his Honour then was) said, in Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35 at 38:

It seems to me that in the present case, as a matter of reality, the order made does finally dispose of the rights of the parties, and on that ground I would consider it to be a final order so that the objection to competency in my opinion ought to be overruled.

86                  The question is, therefore, whether the judgment, as a matter of reality, finally disposed of the rights of the parties.  The issue is to some extent confused by the course taken by the appellants at first instance.  Engaged as they were in much more substantial litigation, they chose to seek limited final relief in those proceedings by issuing a notice of motion.  By that notice of motion the appellants sought to determine, as between themselves and the other parties to the litigation (to the extent that they were interested in it) whether or not the first authority was valid.  The appellants chose the bases upon which they alleged invalidity and were unsuccessful.  Prima facie, they should not be permitted to challenge the validity of the authority on any other ground which they ought reasonably to have raised in the proceedings before Cooper J.  See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598-604.  If his Honour was correct in holding that there was no jurisdiction to entertain the challenges based on state law, those matters would still be open to litigation in an appropriate court.  Nonetheless, for the purposes of proceedings in this Court, those matters have also been finally determined.  In my view, the orders made by Cooper J were not interlocutory.  The appellants may appeal as of right.

NATIVE TITLE Act

87                  One of the purposes of the Native Title Act is to recognize and protect native title.  (See s 3.)  It does so by providing that certain acts, to the extent that they affect native title, are invalid whilst others are said to be valid.  Relevantly, the Native Title Act distinguishes between past acts and future acts.  For present purposes I am only concerned with future acts which are defined by subs 233(1) as follows:

Subject to this section, an act is a future act in relation to land or waters if:

(a)       either:

(i)        it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or

(ii)       it is any other act that takes place on or after 1 January 1994; and

(b)       it is not a past act; and

(c)        apart from this Act, either:

(i)        it validly affects native title in relation to the land or waters to any extent; or

(ii)       the following apply:

(A)       it is to any extent invalid; and

(B)       it would be valid to that extent if any native title in relation to the land or waters did not exist; and

(C)       if it were valid to that extent, it would affect the native title.

88                  Section 227 provides:

An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.

89                  It will assist in understanding both the Native Title Act and these reasons if one keeps in mind that:

·                 a future act may be, but is not necessarily legislative; and

·                 the adjective “future” indicates that the act occurred after a specified date, not that it is prospective at any relevant time.

90                  The validity of a future act is regulated by Pt 2 Div 3 of the Act.  Sub-section 24AA(1) provides:

This Division deals mainly with future acts, which are defined in section 233.  Acts that do not affect native title are not future acts; therefore this Division does not deal with them (see section 227 for the meaning of acts that affect native title).

91                  Section 24OA provides:

Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.

92                  A future act may be valid because it is authorized by an indigenous land use agreement (s 24EB).  Subdivisions B, C, D and E deal with validity in those circumstances.  A future act may also be protected by Subdivision F which applies if there are no outstanding native title claims.  Otherwise, validity may be conferred by Subdivision G (which is not presently relevant), Subdivision H (concerning management of water, aquatic resources and airspace), Subdivision J, K and L (none of which is presently relevant), Subdivision M (acts which pass the “freehold test”) and Subdivision N (acts affecting offshore places).  Section 24AB, in effect, prescribes that these validating provisions stand in an hierarchy so that if one validates a particular act, those lower in the hierarchy will not do so.  This is of some importance because the consequences of validation may differ, depending upon which provision confers it.  The appellants, in their written submissions, assert that the first authority is validated by either Subdivision H or Subdivision N.  However in oral argument, it was also suggested that Subdivision M might apply.

Subdivision H

93                  Section 24HA validates a future act which is the making, amendment or repeal of legislation in relation to the management or regulation of:

(a)        surface and subterranean water; or

(b)        living aquatic resources; or

(c)        airspace.

94                  It also applies to a future act which is the grant of a lease, licence, permit or authority under legislation which is otherwise valid and relates to those matters.  The use of the word “water” in s 24HA, as opposed to the word “waters”, which is used in s 233, is apparently deliberate.  Section 253 defines the latter term to include the bed or subsoil under, and airspace over any waters, together with the shore or subsoil under, or airspace over that shore between high water and low water.  The reference to water in s 24HA refers only to water in the usual sense.  (See explanatory memorandum to Native Title Amendment Bill 1997, ch 10, par 10.2.)

Subdivision M

95                  Section 24MD validates the future acts which are identified in ss 24MA and 24MB.  Broadly speaking, s 24MA deals with legislative acts which apply in the same way to native title holders as they would if such holders held “ordinary title”.  Section 24MB deals with non-legislative acts, the effects of which are no more disadvantageous to native title holders than they would be if those holders held ordinary title.  For present purposes, “ordinary title” means freehold title.  Section 24MD applies only to onshore areas.  (See s 24MC.) 

Subdivision N

96                  Section 24NA validates any future act to the extent that it relates to an offshore place. 

The appellants’ case

97                  The appellants have conducted their case upon the basis that the issue of the first authority was capable of validation by one or other of these three sections, subject to the arguments to which I have referred.  However they have not identified which of the sections ought to have been invoked.  The respondents seem to have accepted this equivocal approach, perhaps because there is a degree of uncertainty as to whether the relevant site is onshore or offshore.  In any event, the appellants submit that the first authority has not been so validated because they were not afforded certain procedural rights conferred upon them by these validating provisions.

Procedural rights

98                  The term “procedural right” is defined by s 253 as follows:

A procedural right, in relation to an act, means:

(a)       a right to be notified of the act; or

(b)       a right to object to the act; or

(c)        any other right that is available as part of the procedures that are to be followed when it is proposed to do the act.

99                  Subsection 24HA(7) provides, under the heading “Notification”:

Before an act covered by subsection (2) (ie a non-legislative act) is done, the person proposing to do the act must:

(a)       notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native titles bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act, or acts of that class, that the act, or acts of that class, are to be done; and

(b)       give them an opportunity to comment on the act or class of acts.

100               I assume that this procedure is within the s 253 definition of “procedural right”.

101               Subsection 24MD(6A) provides:

The native title holders, and any registered native title claimants in relation to the land or waters concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned.

102               Subsection 24MD(6B) also prescribes other procedural rights in certain specific circumstances which are not presently relevant.  Subsections 24MD(7) and (8) apply when native title holders have not been identified.

103               Subsection 24NA(8) provides:

In the case of any future act to which this Subdivision applies, the native title holders, and any registered native title claimants in relation to land or waters in the area concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held any corresponding rights and interests in relation to the offshore place that are not native title rights and interests.

104               Subsections (9) and (10) apply where title holders have not yet been identified.  Procedural rights are also conferred on registered claimants by Subdivisions G, I, J and K.

105               The appellants submit that validity pursuant to each provision depends upon compliance with the prescribed procedural rights.  They point out that each of ss 24HA, 24MD and 24NA (and the relevant sections in the other subdivisions) purports to confer procedural rights upon registered native title claimants and submit that this reflects a clear legislative policy directed towards protecting the interests of such claimants pending resolution of their claims.  They submit that this protection invalidates any future act if a registered claimant’s procedural rights have not been observed in connection with it, even if the claim is eventually unsuccessful.  Thus they submit that the first authority is invalid simply because they, as claimants, have not enjoyed their procedural rights and that they need not demonstrate that they hold native title in order to establish such invalidity.  It is worth again observing that they have not sought interlocutory relief.

106               The appellants’ submission appears to be inconsistent with the approach taken by the High Court in Fejo v Northern Territory of Australia (1998) 195 CLR 96 at 125-126.  In that case the majority said of a claim by a native title claimant for interlocutory relief:

Ordinarily, the fact that an applicant for injunction is a registered native title claimant will suggest, if not demonstrate, that there is a claim to native title that is arguable (the Registrar being obliged to accept the application unless of the opinion that it is frivolous or vexatious or that prima facie the claim cannot be made out) (s 63(1)).  But the Registrar’s administrative act of accepting an application does not put the question of title beyond debate on an application by a registered native title claimant for injunction or on an application to dismiss summarily an action instituted to obtain relief of that kind.

A party responding to an action brought by a registered native title claimant is not restricted to seeking a review of the administrative decision of the Registrar to accept the claimant’s application for determination of native title.  That is because the claimant must demonstrate a sufficiently arguable case in order to obtain injunctive relief under the general law.  And where relief is claimed, it is open to the respondent to demonstrate that the action brought by the claimant is doomed to fail and to contend that no arguable case for the existence of native title is or can be made out.  Ordinarily, such a contention will be difficult to sustain if a claim has been accepted by the Registrar, but here it was submitted that the 1882 grant showed that the appellants’ claim to native title must fail.  It is to that question that we now go.

107               The Court was there dealing with an interlocutory injunction, but it follows that on an application for a final injunction, an applicant must demonstrate that he or she has native title.  Fejo was decided pursuant to the Native Title Act as it was prior to the substantial amendments which were formulated during 1996, 1997 and 1998.  In its earlier form, the Native Title Act conferred no procedural rights on registered claimants.  The appellants submit that the 1998 amendments created a new regime, conferring such procedural rights on them.  Such “conferment” appears to have taken a relatively haphazard course.  The “rights” conferred by subs 24HA(7) differ from those conferred by subs 24MD(6A) and subs 24NA(8).  Although the “rights” conferred by subs 24HA(7) may be fairly clear, those conferred by the other two subsections are rather more difficult to ascertain.  No real attempt has been in these proceedings to do so and for my part, I have some difficulty in understanding how they might apply so as to confer any particular rights upon the present appellants.  The point, however, is simply that if there were some integrated policy underlying the 1998 amendments, one would expect rather more consistency in dealing with procedural rights in each of these three subsections than is presently to be found.  One may speculate about why these different approaches have been adopted.  They may arise out of peculiarities of native title claims of which the draftsman had knowledge and/or the interaction between such claims and the common law. 

108               An examination of the history of the passage of the legislation through the Parliament suggests that there was no consistent underlying intention to extend procedural rights to registered native title claimants.  It is well known that the amending legislation was the subject of ongoing and robust parliamentary negotiation.  I say that simply by way of background.  As far as I can ascertain, proposals for ss 24HA, 24MD and 24NA first appeared in 1997.  Section 24HA, in the form then proposed, contained no provision concerning notification, nor did it otherwise deal with procedural rights.  The proposed form of s 24MD did not confer procedural rights upon registered claimants, nor did that of s 24NA.  The notification provision in s 24HA first appeared in December 1997.  An explanatory memorandum which I am able to identify only as “Cat No 97 2720 5” and “ISBN 0644 51811 1”, at p 118 described the proposed amendment to the draft s 24HA as follows:

Notification

10.19   The Senate made Government amendment (25) which is included in the Bill.  This amendment to proposed section 24HA inserts a new subsection 24HA(7) that requires notification in relation to the grant of a lease, licence, permit or authority under subs 24HA(2) only. 

10.20   In relation to future acts of this kind, new sub-section (7) requires that before the future act is done, the person proposing to do the act notify, in the way determined in writing by the Commonwealth Minister, the persons mentioned in paragraph (7)(a) that the act, or acts of that class, are to be done, and give them an opportunity to comment on the act or class of acts.  The reference to ‘acts of that class’ makes it clear that notification need not be given in relation to each particular future act.  For example, notification need not be given in relation to each grant of a fishing licence, but may be given in relation to the grant of all licences to fish in particular waters.  Failure to notify will not affect the validity of the future act.

109               The last sentence is of no assistance to the present appellants.  The section appeared in its present form in Bill No 16/98.

110               The proposed extension of procedural rights to registered claimants under ss 24MD and 24NA first appeared in mid-1998.  According to a supplementary explanatory memorandum issued in relation to the Native Title Amendment Bill 1997 (No 2) (as amended in July 1998) at p 19:

Subsection 24MD(6) in the Bill currently provides that in relation to future acts that pass the freehold test but are not subject to the right to negotiate, or are not acts to which sections 26A, 26B or 26C apply (which already given native title holders special procedural rights in relation to the acts to which those sections apply), native title holders have the same procedural rights as a freeholder.  New sub-section 24MD(6A) gives the procedural rights of a freeholder in relation to future acts of this kind to native title holders and registered native title claimants for the area concerned.

111               Similarly, at p 21 the memorandum states:

This amendment is to subsection 24NA(8) which confers upon native title holders, in relation to future acts that take place offshore, the same procedural rights that the holders of any corresponding offshore non-native title rights enjoy.  This amendment extends those procedural rights to registered native title claimants (who may or may not be native title holders).

112               Although it is possible to argue that the extension of procedural rights to registered claimants pursuant to s 24MD and s 24NA occurred at the same time and may have been motivated by the same considerations, it is difficult to see any basis for inferring that the insertion of s 24HA(7) was also so motivated. 

Construction of the Act

113               Notwithstanding these difficulties it is clear that the Native Title Act contemplates registered native title claimants having procedural rights.  However substantial difficulties may be encountered in determining:

·                 the circumstances in which a registered claimant is entitled to procedural rights;

·                 the content of those rights; and

·                 the consequences of any non-observance of them.

114               For reasons which follow, I do not consider that these problems presently arise.  The appellants have focussed so closely upon their claimed procedural rights that they have overlooked the substance of their prayer which is for a determination that the first authority is invalid.  Setting aside, for the moment, questions arising under Queensland law, the first authority is an apparently valid exercise of executive power under state legislation.  The only possible reason for invalidity under the Native Title Act is s 24OA which applies only to future acts.  Until it is demonstrated that the issue of the first authority satisfies the definition of “future act” in s 233, and may therefore be invalidated by s 24OA, it is not necessary to seek any basis for validity under the Native Title Act.  Section 233 requires that the act in question affect native title.  The applicants have not sought to establish any such effect and so have not demonstrated that the issue of the first authority was a future act.  There is therefore no reason to believe that the Native Title Act deprives it of validity, and it is not necessary for present purposes to have regard to Subdivisions H, M and N. 

115               I wish to make only two other observations concerning this aspect of the case.  The first is that in the course of argument I put the above analysis to counsel for the appellants.  He responded to the effect that it was not s 24OA of the Native Title Act but subs 11(1) which has the primary effect of invalidating acts which affect native title.  Subsection 11(1) provides:

Native title is not able to be extinguished contrary to this Act.

116               Even if the submission is correct, s 11(1) also only invalidates an act which extinguishes native title.  It says nothing about an act which does not have that effect.

117               The second point concerns the relatively surprising assertion that Parliament intended to invalidate acts because of failure to give notice to registered claimants pursuant to the relevant validating subdivision.  There are, to my mind, a number of reasons suggesting that this submission must be incorrect.  Firstly, the express wording of each of the validating provisions suggests otherwise.  Subsection 24 HA(3) validates a future act without any suggestion that such validation is dependent upon compliance with any other aspect of the section or subdivision.  Native title rights are not extinguished by the act in question, but enjoyment of them may be suspended.  Compensation is payable, but there is no suggestion that payment is a condition of validity.  There is also nothing to suggest that compliance with subs 24HA(7) is a condition precedent to validity.  Similarly, subsection 24MD(1) validates a future act with no suggestion that validity is dependent upon observation of procedural rights.  Subsection 24NA(2) is to similar effect.  These provisions may be compared to s 25 which relates to the right to negotiate.  Subsection 25(4) expressly provides, concerning future acts:

If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.

118               That Parliament should have chosen to make express reference to invalidity in this context strongly suggests the absence of any such intention in connection with the other subsections with which I am concerned.  It is necessary to keep in mind the observations of the majority (McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at pars 91-93.  Their Honours there observed:

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.  …  In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.

119               I see no reason why the same test should not be applied for present purposes. 

120               Secondly, I have already referred to the fact that when subs (7) was inserted into s 24HA, the relevant explanatory memorandum offered the view that failure to give notice would not result in invalidity.  There is no reason to believe that there was any different intention associated with the conferment of procedural rights in the other validating provisions.  Thirdly, although it is not always clear from the wording of those provisions, they will frequently, perhaps usually be concerned with the conduct of government or of some government instrumentality, or with conduct pursuant to government authority.  Such conduct will presumably have social value.  It seems relatively unlikely that Parliament intended to invalidate such acts merely because no notice had been given to a registered native title claimant, even in the event that the claim turned out to be entirely without merit.  Such an interference with state government could hardly be justified, constitutionally or politically, if there were no native title to protect.  Of course that says nothing about the availability of interlocutory relief. 

121               I consider that the appellants have failed to demonstrate any basis pursuant to the Native Title Act for holding the first authority or any conduct thereunder to be invalid.

Issues arising under state law – jurisdiction

122               The appellants also challenge the validity of the first authority upon grounds arising under the law of Queensland.  As I have said, his Honour concluded that he did not have jurisdiction to entertain that aspect of the case.  The appellants challenge that conclusion.  A challenge to the validity of an action of a state government pursuant to state legislation would not, by itself, be within the jurisdiction of this Court.  However it is well-established that in certain circumstances the Court may acquire jurisdiction in such matters because of the way in which they arise for determination.  In Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261, at 278 Gibbs CJ said:

… when jurisdiction is conferred on the Federal Court with respect to a matter, that Court has jurisdiction to determine all the questions which form part of that matter, including questions which in themselves would not be federal in nature, and which accordingly the Federal Court would not have had jurisdiction to determine if they had arisen in separate proceedings.  On the other hand … the Federal Court has no jurisdiction in respect of a matter simply because it is closely associated with a matter within jurisdiction.

123               At 290, Mason, Brennan and Deane JJ said:

[T]he content of a “matter” in s 76 and … the scope of federal jurisdiction in a proceeding are not restricted to the determination of the federal claim or cause of action in the proceeding, but extend beyond that to the litigious justiciable controversy between parties of which the federal claim or cause of action forms part.

124               From a practical point of view this Court has long adopted the approach proposed by the Full Court (Bowen CJ, Morling and Beaumont JJ) in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219, where their Honours said:

The Court’s jurisdiction is to determine each of the claims which together constitute a federal “matter”.  That jurisdiction cannot be limited, as the argument of the second and third respondents would suggest, to the determination of only those claims, federal or attached, which are successfully maintained.  On the contrary, the jurisdiction is to entertain, and determine, all claims constituting a “matter”, whatever their ultimate fate.

125               In more recent times the High Court considered the meaning of the expression “matter” in Ch III of the Constitution in Abebe v The Commonwealth of Australia (1999) 197 CLR 510.  At par 35, Gleeson CJ and McHugh J observed, with regard to the judgment of Isaacs J in Pirrie v McFarlane (1925) 36 CLR 170 at 298:

We think that his Honour was intending to say no more than that the legislative power under s 77(ii) extended to removing into this Court the whole of a “matter”, containing an inter se question, even though part of it was not concerned with the constitutional issue or, for that matter, with federal law.  In that respect, his judgment anticipated the decisions of this Court in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd …, Fencott v Muller … and Stack v Coast Securities (No 9) Pty Ltd …, decisions which hold that a “matter” may include non-federal claims which are inseparable from federal claims arising out of a common substratum of fact.

Once it is accepted that a “matter” cannot be identified without regard to the remedies available in the court where it is litigated, it necessarily follows that the same legal controversy can give rise to separate matters because different courts may provide different remedies.  …

126               Kirby J said at 215:

The meaning of the word “matter” is elusive.  Established doctrine, not challenged in these proceedings, holds that the word has the same meaning in each  of the sections in Chapter III in which it is used … .  It does not connote “a legal proceeding” as the parties may have chosen to frame it … .  Rather it refers to “the subject matter for determination in a legal proceeding” … .   It is not any subject matter upon which the parties may disagree or about which they have a dispute susceptible to independent determination.  It must be a subject matter which is apt for determination by a court of law by reference to some “immediate right, duty or liability” susceptible of determination by such a court … .  Upon this notion of “matter” rest the restrictions which this Court has applied to legislative attempts to confer upon a Ch III court, including this Court, a jurisdiction to provide advisory opinions … or to decide abstract questions divorced from the actual administration of the law … .

127               At 222 his Honour said:

Viewed from this perspective it is hardly surprising that the decisions of this Court uphold the validity of laws made by the Parliament extending the jurisdiction of federal courts over non-federal claims which can be regarded as part of a single legal controversy.

128               Callinan J referred to the passages from Stack quoted above and continued at 276:

For the purposes of ss 75-77 of the Constitution, the term “matter” means the subject matter for determination in a legal proceeding … and not necessarily the legal proceeding itself in exactly the form in which it was first presented … .

The cases which held or affirmed that the Federal Court possessed accrued jurisdiction in respect of cases brought under the Trade Practices Act 1974 (Cth) … in order to enable that Court to determine completely a “matter” within ss 75 and 76 do not establish that jurisdiction may only be conferred on a federal court in relation to all matters in controversy at the inception of the process in respect of which either a review or an appeal is made available by statute.  Those cases effectively hold no more than that the Federal Court has a jurisdiction no wider or greater than a jurisdiction to decide such non-federal claims as are inseparable from federal claims based upon the same factual situations.

129               Turning to the present proceedings, it seems that there are three “layers” to them.  The first is the principal claim with which Cooper J was concerned, namely the claim to native title (the “native title claim”).  The second layer is the challenge to the validity of the first authority and actions thereunder, which challenge is based upon the appellants’ entitlement, as native title claimants, to procedural rights (the “notice question”).  The third layer is the assertion that the first authority was, in any event, invalid by virtue of Queensland law (the “state law questions”).  Cooper J expressed some doubts as to whether any of the issues raised in the notice of motion was within the jurisdiction conferred upon the Federal Court by subs 213(2) of the Native Title Act.  That section provides:

Subject to this Act, the Federal Court has jurisdiction in relation to matters arising under this Act.

130               In Fejo v Northern Territory of Australia (supra), Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ considered the various conferments of jurisdiction upon the Federal Court pursuant to the Native Title Act and otherwise.  With respect to subs 213(2) and s 39B of the Judiciary Act 1903 (Cth) (the “Judiciary Act”)(which confers upon the Federal Court jurisdiction in any matter “arising under” any law made by the Parliament), their Honours referred to the earlier decisions in LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 and Re McJannet; Ex parte Australian Workers’ Union of Employees (Q) [No 2] (1997) 189 CLR 654 at 656 – 657, as establishing the extent of the jurisdiction conferred by the formula “arising under” a legislative provision.  In McJannet the High Court considered the jurisdiction of the High Court to award costs in proceedings for prohibition addressed to the Judges of the Federal Court in connection with orders made pursuant to the Industrial Relations Act (1988) (Cth).  Section 374(1) of that Act provided:

A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding … .

131               At 656 – 657 the Court (Brennan CJ, McHugh and Gummow JJ) said:

The test for determining whether a proceeding is in a matter arising under the Act … is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act.  That test follows from what was said with respect to s 76(ii) of the Constitution in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [(1945) 70 CLR 141 at 154], where Latham CJ said:

“One is compelled to the conclusion that a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law.  In either of these cases, the matter arises under the Federal law.  If a right claimed is conferred by or under a Federal statute, the claim arises under the statute.

132               Notwithstanding the doubts expressed by Cooper J as to whether any of the matters raised in the notice of motion could be said to arise under the Native Title Act, I consider that one aspect does so arise.  The appellants seek to establish their claimed entitlement to procedural rights with respect to the grant of the first authority and actions pursuant to it and to enforce them.  Those “rights” are, as they allege, created by the provisions of the Native Title Act.  In that sense the claim arises under that Act and is within the jurisdiction conferred by subs 213(2).

133               Section 233 of the Native Title Act defines the term “future act” to include an act which “validly affects native title” to the extent that the act is valid other than because of provisions of the Native Title Act.  According to s 253, the word “valid” includes “having full force and effect”.  Thus, in order to establish an entitlement to procedural rights under the Native Title Act, it is, in theory, necessary that the appellants demonstrate that the alleged future acts are, apart from the terms of the Native Title Act, valid.  In effect, then, the appellants’ case is that:

·                 to the extent that the grant of the first authority and actions pursuant thereto are otherwise valid, they are invalid because of the failure to observe the procedural rights conferred by the Native Title Act; and

·                 they are, in any event, invalid for reasons arising under the law of Queensland.

134               Both arguments seek to establish the invalidity of the first authority and actions pursuant thereto.  The first ground for invalidity arises directly from the  claimed conferment of procedural rights by the Native Title Act; the second ground does not.  Nonetheless, both grounds depend upon the same facts in so far as concerns the “offending” conduct.  Further, the grounds are inseparable to the extent that no question of procedural rights will arise if the appellants’ argument concerning the state law questions is successful.  I am of the view that the state law questions are within the jurisdiction of the Court and that Cooper J was in error in concluding to the contrary.  In coming to this conclusion I have kept in mind the views of the majority of the High Court (Mason, Murphy, Brennan and Deane JJ) in Fencott v Muller (1982 – 1983) 152 CLR 570 at 610 where their Honours warn against review of a decision at first instance in this area save in the case of obvious error.

135               The appellants submit that the first authority and actions pursuant thereto are invalid pursuant to Queensland law because:

·                 the first authority failed to identify the location at which the buoy mooring was to be constructed;

·                 there had been no “categorization” of the relevant area as contemplated by regs 169A and 170 of the Transport Operations (Marine Safety) Regulation 1995;

·                 there was no power under state law to grant the first authority in relation to an area which was subject to a private interest without the consent of the interest-holder;

·                 the construction of the buoy mooring was not sanctioned pursuant to subs 86(2) of the Harbours Act 1955 (Qld) (the “Harbours Act”); and

·                 there was no compliance with the provisions of the Native Title Act as required by state law.

136               I doubt whetherthe appellants have standing to pursue these claims, given that they have not demonstrated any interest which may be affected by the issue of the first authority or any act pursuant thereto.  This says nothing about their entitlement to interlocutory relief.  In any event, these arguments are demonstrably erroneous.  The first submission is that the first authority does not specify the latitude and longitude of the proposed buoy mooring.  This issue is dealt with in the affidavit of Campbell Smith filed on 3 November 1999 and associated exhibits, especially at pp 248 – 345 of the appeal book.  Mr Smith swears that an application was submitted on 12 July 1999 in the form of exhibit CS10 to his affidavit .  The first authority was issued on 6 August.  As appears from the extract from the judgment of Cooper J set out above, Mr Smith attended upon Captain Boath, the relevant issuing officer, drawing his attention to the fact that the co-ordinates had been omitted from the authority.  He asked Captain Boath to amend the authority to include those co-ordinates and also to amend the time limit within which the mooring could be placed.  Captain Boath agreed to both proposals and made the second amendment.  He initialled the location at which the co-ordinates ought to have been inserted but did not insert them.  This somewhat remarkable series of events has resulted in the first authority not containing a description of the approved location for the buoy mooring.  However the original application identified that location in an appropriate way, and it was expressly referred to in the first authority.

137               Argument before us initially proceeded upon the assumption that there was a prescribed form which should have been adopted for the first authority. Regulation 126, which deals with the issue of authorities, seems to contemplate as much.  However the parties have not been able to demonstrate that any form has been prescribed.  In those circumstances there appears to be no legal requirement that an authority take any particular form orcontain any description of the proposed location.  For all practical purposes reference can be had to the application which led to the issue of the first authority in order to identify the authorized location.  There is nothing in this point.

138               Points two and three can be disposed of fairly quickly.  Regulation 169A of the Transport Operations (Marine Safety) Regulation 1995provides:

Buoy mooring category areas

(1)       The chief executive may, by gazette notice, define areas of Queensland waters as category areas for buoy moorings.

(2)       The chief executive may define an area as--

(a) a category 1 area; or

(b) a category 2 area.

(3)       An area that is not defined as a category 1 or 2 area is a category 3 area.

(4)       The chief executive may, by written agreement with a person (a "mooring manager" ), vest in the person the management and control of buoy moorings within a category 1 area.

139               Subregulation 170(1) authorizes the chief executive to issue a buoy mooring authority for a category 2 area or a category 3 area.  It is common ground that at the relevant time the  chief executive had not exercised his power pursuant to reg 169A.  The appellants submit that as a result, no part of Queensland waters was assigned to any one of the three categories.  The respondents submit that any area not defined as category 1 or 2 is to be placed in the residual category 3.  This is clearly correct.  Thus the chief executive had authority to issue buoy mooring authorities for all areas of Queensland waters.

140               As to the assertion that there was no power to grant an authority without the consent of interest-holders, neither the Act nor the Regulations expressly recognizes any “interest” in Queensland waters.  There is no prescribed procedure for dealing with so-called interest-holders.  In any event, as the appellants have not established that they are “interest-holders”, there is nothing in the point.

141               The appellants also submit that the placement, establishment or construction of the buoy was invalid unless the sanction of the relevant minister was first obtained pursuant to s 86 of the Harbours Act.  That section provides that:

(2)(a)  

No Harbour Board or Local Authority and no person whomsoever shall commence or construct any harbour works or other works of any kind, or place any pile or other structure in, on, over, through, or across any foreshore or any land lying under the sea within Queensland waters or any land lying under any harbour (including any navigable river), whether the foreshore or land is alienated or held from the Crown or not, nor attempt any of these things, without the sanction of the Governor in Council previously obtained in the manner provided by subsection three of this section.

142               Section 86 was continued in force pursuant to s 236 of the Transport Infrastructure Act 1994 (Qld).  It was further extended until 31 December 1999 by the Integrated Planning and Other Legislation Amendment Act 1999 (Qld).  Pursuant to s 236 of the Transport Infrastructure Act the Minister assumed the authority previously conferred upon the Governor in Council pursuant to s 86.

143               Since 1994 the Queensland Parliament has enacted a series of acts which seek to co-ordinate transport planning.  That legislation commenced with the Transport Planning and Coordination Act 1994 (Cth) which gave wide powers to the chief executive of the relevant department.  It also authorized both the minister and the chief executive to delegate their powers under that Act or under any other act, including sub-delegation if authorized by the act in question.  Thereafter Parliament enacted the Transport Infrastructure Act  and the Transport Operations (Marine Safety) Act 1994 (Qld) together with numerous other pieces of legislation.  The Transport Operations (Marine Safety) Act authorized the Governor in Council to make marine safety regulations “about marine safety and issues affecting marine safety (subs 208(1)) and offered as an example of such subject matter “the establishment, registration and control of buoy moorings.”  Pursuant to  218 an express power was given to make regulations “about … approving the establishment of buoy moorings”.  It is clear that the Act authorizes the Governor in Council to provide by regulation for the establishment, registration and control of buoy moorings.  Given the attempt to integrate the statutory approach to transport policy and these express references to buoy moorings, it seems most unlikely that Parliament intended that a general provision such as s 86 of the Harbours Act should remain in force in so far as it affects buoy moorings, notwithstanding the specific provisions made in the Transport Operations (Marine Safety) Act.

144               The Governor in Council has made regulations pursuant to that Act, in particular, reg 169 set out above.  In connection with that power reg 171 provides as follows:

(1)       The chief executive may issue a buoy mooring authority only if the chief executive is satisfied that the mooring does not significantly interfere with –

(a)       marine safety; or

(b)       the effectiveness or efficiency of the Queensland maritime industry.

(2)       If a buoy mooring is to be established within a port, the chief executive may authorise a person to establish a buoy mooring only if the applicant satisfies the chief executive the port authority for the port has approved of the establishment.

145               Although one should not use the regulations to construe the Act, there is nothing about the regulations which is inconsistent with the regulation-making power.  If such regulations are authorized by the Transport Operations (Marine Safety) Act, then it follows that s 86 of the Harbours Act has been impliedly repealed in so far as it applies to the establishment of buoy moorings.  That does not mean that s 86 was left with no function.  It would have had application to many situations not involving buoy moorings and no doubt was continued in force for such purposes.

146               The appellants also submit that the first authority is void because of the provisions of s 13A(1) of the Acts Interpretation Act (1954) (Qld) which provides:

An Act enacted after the commencement of this section affects native title only so far as the Act expressly provides.

147               As I have previously observed, no attempt has been made to prove the existence of native title and so it is not possible for the appellants to rely upon this provision.

COSTS

148               His Honour observed at par 47

There is no reason why costs should not follow the event.

149               Consistent with this observation, his Honour ordered that the appellants pay the costs of the motion.  They submit that his Honour erred in starting with the proposition that in the absence of some reason, costs should follow the event.  This proposition was said to be erroneous because of s 85A of the Native Title Act which provides:

(1)       Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. 

Unreasonable conduct

(2)       Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceedings, the Court may order the first-mentioned party to pay some or all of those costs. 

150               The appellants rightly submit that this question depends upon whether or not s 85A applies to the proceedings on the notice of motion.  His Honour, in my view correctly, treated the motion as having been brought pursuant to s 213(2) of the Native Title Act.  I have previously set out the text of the subsection and noted that it confers jurisdiction upon the Federal Court in relation to matters “arising under this Act”.  That jurisdiction is not said to be exclusive.  As was observed by the majority of the High Court in Fejo v Northern Territory of Australia (supra) at par 21, numerous sections of the Act have the effect of conferring jurisdiction upon this Court.  Further, as is pointed out in footnote 140 to that paragraph, subs 39B(1A) of the Judiciary Act also confers jurisdiction upon the Court in matters “arising under” any law made by the Commonwealth Parliament.  In addition to subs 213(2) and the Judiciary Act, jurisdiction is conferred upon by the Court by s 81.  It provides:

The Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

151               At the time of the decision in Fejo, the section was in a somewhat different form and operated in conjunction with s 74.  The latter section provided:

If an application is accepted under s 63 and the Tribunal does not make a determination under section 70, 71 or 73, the Registrar must lodge the application to (sic) the Federal Court for decision.

152               Section 81 thenprovided:

The Federal Court has jurisdiction to hear and determine applications lodged with it under section 74 and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

153               Applications under s 63 were those referred to in s 61, including applications for native title determinations, applications for revised native title determinations and applications for compensation.  Thus the exclusive jurisdiction conferred by s 81 was limited to those applications.  Section 213 was in its present form.  The explanatory memorandum relating to the 1997 Bill (which eventually effected the amendment to s 81 and repeal of s 74) dealt with the amendment to s 81 in par 26.4.  There is no suggestion that the amendment was intended to make any substantial change to the assignment of jurisdiction.

154               The Federal Court has jurisdiction, exclusive of that of all courts except the High Court, in respect of applications that relate to native title and has non-exclusive jurisdiction pursuant to subs 213(2) (and the Judiciary Act) “in relation to matters arising under” the Native Title Act.  The difficulty is to ascertain the subject matter of each grant.  Part 3 of the Act deals with the three matters previously referred to in s 61 (applications for native title determination, for revised native title determinations and compensation) “various other applications to the Federal Court”, applications to the National Native Title Tribunal and applications to the Native Title Registrar.  The “various other applications” are dealt with in Div 1A, particularly in s 69.  Subsection 69(1) deals with “applications that may be made under this Division to the Federal Court” and includes applications for the registration of claims, to remove agreements from the register and concerning transfer of records.  Subsection 69(2) deals with “any other application to the Federal Court in relation to a matter arising under this Act”, reflecting the language of subs 213(2).  The balance of Part 3 deals with applications to the Tribunal and to the Registrar. 

155               Part 4 deals with “Determinations of the Federal Court”.  Section 79A provides that Part 4 “has the rules for processing Federal Court applications, and making determinations, relating to native title”.  Sections 81 and 85A are in Part 4.  Division 1A of Part 4 concerns applications filed in the Federal Court “that relate to native title”.  Division 1B concerns references to the Tribunal for mediation and Division 1C concerns agreements and unopposed applications.  Division 2 deals with conferences and Division 3, with orders, including orders for compensation and orders making determinations as to native title. 

156               It is difficult to avoid the conclusion that the jurisdiction conferred by Part 4 isintended to supplement the operation of Part 3 and that an application which relates to native title is an application made pursuant to that part.  That would not include the applications referred toin subs 69(2).  All other applications referred to in Part 3 appear to be expressly identified while those to which subs 69(2) refers are not.  This suggests that subs 69(2) and subs 213(2) deal with the same matters.  I consider that the conferment of jurisdiction pursuant to s 81 is limited to the matters arising under Part 3 and that subs 213(2) confers jurisdiction not otherwise expressly conferred under the Native Title Act.

157               If this construction is correct then with one possible exception, it follows that a “proceeding” for the purposes of s 85A is a proceeding within the jurisdiction conferred by s 81 and does not apply to proceedings within the jurisdiction conferred by subs 213(2).  The possible exception to this arises when a determination of native title is necessary as part of proceedings pursuant to the latter subsection.  The Federal Court is then obliged to follow the procedure prescribed in the Act.  See subs 213(1).  However that exception has no application for present purposes because the appellants have not sought to establish native title.

158               In the course of argument we were referred to two decisions of Lee J, one of which has been subject to appeal.  The first is the decision in Ward v The State of Western Australia (1999) 163 ALR 149, where his Honour made certain observations as to the effect of s 85A.  That decision was considered by the Full Court (Beaumont, von Doussa and North JJ), reported sub nom Western Australia v Ward (2000) 170 ALR 159.   At pars 668 – 677 the majority (Beaumont and von Doussa JJ) considered the views as to costs expressed by Lee J.  However their Honours disposed of the matter upon a basis which did not necessitate their considering the correctness or otherwise of those views.  In any event, the proceedings thenin question were pursuant to s 81.  In Brownley v Western Australia (1999) 167 ALR 170, Lee J was concerned with an application for judicial review of a decision of the National Native Title Tribunal.  His Honour concluded that such proceedings were not within the jurisdiction conferred by s 81 and therefore not subject to s 85A.  At par 21 his Honour observed that the Federal Court’s jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) was not exclusive and that:

It would be most unlikely that parliament intended to establish different “rules” in respect of the costs of litigation in a federal matter depending upon the choice of forum.

159               The jurisdiction conferred by subs 213(2) is also not exclusive.  If I am correct in characterizing the proceedings under the motion as being pursuant to the jurisdiction conferred by that subsection rather than that conferred by s 81, then a similar comment would apply. If s 85A does not apply to proceedings pursuant to subs 213(2), then there is no basis for the allegation that Cooper J erred in awarding costs.  As I have said, the appellants appear to have been conscious of this problem, or at least I infer as much from the way in which their outline of submissions is drawn.  The point appears not to have been taken by any of the other parties to the appeal.  It may be desirable that the parties be given an opportunity to make further submissions as to the question of the application of s 85A to these proceedings before any final order is made.  Subject to that matter the appeal should be dismissed.  It seems that the appellants should pay the costs of the appeal, however it may also be as well to offer the parties an opportunity to make further submissions on that subject.

Associate:

Dated:              11 April 2001