FEDERAL COURT OF AUSTRALIA
Munn for and on
behalf of the Gunggari People v State of Queensland
[2001] FCA 1229
NATIVE TITLE – consent determination – where proceeding split to into “part A” and “part B” land – whether all parties must reach agreement or only parties with interest in relevant part of land – whether appropriate to split proceeding – Court’s discretion making order under s 87 – relevant factors Court must take into account when determining whether Court is satisfied it is appropriate to make orders sought
ROBERT JOHN MUNN FOR AND ON BEHALF OF THE GUNGGARI PEOPLE v STATE OF QUEENSLAND & ORS
QG 6019 OF 1998
EMMETT J
23 AUGUST 2001
BRISBANE
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IN THE FEDERAL COURT OF AUSTRALIA |
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QG6019 OF 1998 |
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BETWEEN: |
GUNGGARI PEOPLE APPLICANT
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AND: |
STATE OF QUEENSLAND RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. Leave be granted to the applicant to amend the application to reduce the area of land or waters covered by the application to the land and waters described as “the Part A land” in the orders made on 27 March 2001.
2. The respondent parties, other than the State of Queensland and Telstra Corporation Limited, cease to be a party to the proceeding.
3. The applicant file an amended application in conformity with Order 78 Rule 7 by 7 September 2001.
4. The applicant file any agreement in terms of s 87(1)(a) of the Native Title Act 1993 and the terms of any proposed determination by 7 September 2001.
5. The proceeding be listed for further directions on 14 September 2001 at 9.30am.
THE COURT NOTES THAT:
6. The parties have agreed that neither the order giving effect to a consent determination nor any finding of fact or conclusion in law implicit in making the consent determination has any effect on any assertions, or responses thereto, made in any other application for native title brought by the Gunggari People.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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QG6019 OF 1998 |
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BETWEEN: |
APPLICANT
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AND: |
RESPONDENT
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 The Gunggari People have brought an application under the Native Title Act 1993 (Cth) (“the Act”) for determination of their entitlement to parcels of land situated near the township of Roma in south-western Queensland. On 27 March 2001, I made orders that the further conduct of the proceedings be dealt with on the basis that the land which was the subject of the application be divided into two parts, one part being referred to as “the Part A land”, and the other part being referred to as “the Part B land”.
2 Those orders resulted from a court mediation conference that was held on 10 October 2000. The outcome of that conference was an agreed course of action to progress the application by treating the two parcels of land separately. On 6 June 2001, I made orders that the applicants file on or before 10 August 2001 any orders proposed under s 87(2) of the Act in relation to the Part A land, and that any agreement in terms of s 87(1)(a) in relation to the Part A land be filed on or before 10 August 2001. Those orders were made in the expectation that agreement would be reached concerning the making of declarations by consent in relation to the Part A land.
3 Complications have arisen in relation to that proposal by reason of the presence of the Part B land as part of the application. As a result of those complications, the applicants have filed a notice of motion, which is returnable before me today, seeking orders as follows:
“1. That any party who wishes may, without prejudice to their right to be heard in relation to any other matter arising from the balance of the proceeding, file and serve a notice in accordance with Form 162 in relation to so much of the proceeding as concerns the determination area as defined in the proposed s 87 Order filed by the applicant, and upon doing so shall be treated as having withdrawn from the proceeding for the purposes of any order the Court considers appropriate or consistent with the terms of the proposed s 87 Order in relation to the determination area.
Alternatively
2. That the application be amended pursuant to s 64 of the Native Title Act to reduce the area of land and waters covered by the application to include only the determination area, as defined in the proposed s 87 order filed by the applicant.
……………………”
Consequential orders are also sought. The “determination area” referred to in the proposed s 87 Order is the Part A land.
4 However, a question arises as to whether or not, in order for orders to be made under s 87, it is necessary to have the agreement of all of the parties to the current proceeding. The Court only has power to proceed under s 87 if the three conditions set out in s 87(1) are met. Those conditions are:
(a) an agreement is reached between the parties on the terms of the order;
(b) the terms of the agreement in writing, signed by or on behalf of the parties, are filed; and
(c) the Court is satisfied that the order would be within its power.
5 I consider that those conditions are jurisdictional pre-conditions to the exercise of the power given by s 87. Under s 87(1), where those conditions are satisfied, the Court may, if it appears to it to be appropriate to do so, act in accordance with either s 87(2) or s 87(3). Section 87(2) provides:
“If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing ….”
Section 87(3) provides:
“If the agreement relates to a part of the proceedings or a matter arising out of the proceedings, the Court may in its order give effect to the terms of the agreement without … dealing at the hearing with the part of the proceedings or the matter arising out of the proceedings … to which the agreement relates.”
6 Any proposed declaration in relation to the Part A land would be a matter that falls within s 87(3). That is to say, it would be possible for the Court, if it were satisfied as to the matters in s 87(1), to make orders in accordance with a proposed agreement resolving the issues in dispute in relation to the Part A land, leaving any issues remaining in relation to the Part B land to be determined after a hearing in the ordinary course.
7 The parties to the present proceeding include the Gunggari People, pursuant to s 84(2), as applicants, and the State of Queensland. In addition, other parties have been joined comprising Telstra, the Bidjara People, various mining interests, and various pastoralists. The only parties that have an interest in any of the Part A land are the applicants, Telstra and the State of Queensland. The question that arises is whether, in order to give effect to a proposed agreement in accordance with s 87(3), it is necessary to have the agreement of all of the parties to the present proceeding.
8 Section 84 deals with who are parties to a proceeding. Section 84(5) provides:
“The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings.”
In addition, under s 84(3), certain persons are deemed to be parties:
(3) Another person is a party to the proceedings if:
(a) any of the following applies:
(i) the person is covered by paragraph 66(3)(a);
(ii) the person claims to hold native title in relation to land or waters in the area covered by the application;
(iii) the person's interests may be affected by a determination in the proceedings; and
(b) the person notifies the Federal Court, in writing, within the period specified in the notice under section 66, that the person wants to be a party to the proceeding.”
9 I consider that the reference to parties in s 87(1)(a) and (b) of the Native Title Act is a reference to all of the parties to the proceeding, not just the parties who have an interest in that part of the subject land that might be the subject of an agreement. I do not consider that it is sufficient for s 87 purposes that agreement be reached between some but not all of the parties to the proceeding. If that were intended, the language in s 87 might have been different. In paragraph (a), the definite article “the” appears before “parties”. That suggests that the agreement of all parties is required. It would have been possible for the Parliament to refer to agreement being reached between “some of the parties”. Equally, it might have been possible to say that agreement had been reached “between those parties who have an interest in the part of the determination area that is the subject of the agreement”. Neither of those forms has been adopted by the Parliament.
10 Section 86G of the Act, which deals with unopposed applications, is also relevant. That section contemplates the making of orders where each other party notifies the Federal Court in writing that he or she does not oppose an order in or consistent with the terms sought by the applicants. For whatever reason, the Parliament chose to use the definite article in s 87(1)(a) which, in my view, refers to all of the persons who are parties to the proceeding pursuant to s 84. Absent the written consent of all of those parties, the Court does not have power to make an order under s 87(1). That restriction would be consistent with the mechanism set up in s 86G.
11 There are other considerations supporting this interpretation. So long as a person is a party to a proceeding, that proceeding ought not to be compromised unless that party agrees to the compromise. Further, the principles of procedural fairness would require that a party to a proceeding be given a right of hearing before any order is made disposing of the proceeding.
12 It is possible that the difficulty that arises in this case was not foreseen by the Parliament when the terms of s 87 were enacted. Be that as it may, the requirement that agreement be reached between the parties, in my view, will only be satisfied when all of the persons who are parties to the proceeding within s 84 have signed the agreement as contemplated by s 87(1)(b). It is impracticable at least, and perhaps impossible, to achieve an agreement as is contemplated by s 87(1)(a) and (b) with all of the persons who are parties to the present proceeding. On the other hand, if it be the fact that the only persons who have an interest in the Part A land have reached an agreement for the resolution of any dispute in relation to the Part A land, it is desirable that the agreement be given effect by the Court. It is appropriate, therefore, to endeavour to provide a procedure that will enable the wishes of the parties to be achieved consistent with the protection of the interests of all parties.
13 One possible course that has been suggested by senior counsel for the applicants is to split the current proceeding into two separate proceedings, one relating to the Part A land and one relating to the Part B land, as defined by Order 1 of 27 March 2001. There is no provision in the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) or the Federal Court Rules for such a course. If such a course were open, it may be a convenient one to adopt. However, I have serious conceptual difficulties with the notion of splitting the proceeding.
14 It was suggested on behalf of the applicants that the power to split the proceeding resides in s 23 of the Federal Court Act. Section 23 provides:
“The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds as the Court thinks appropriate.”
Such a power certainly extends to the regulation of proceedings in the Court and may well be the source of much of the power to make provisions in the Rules for matters that affect the rights and obligations of parties to a proceeding. For example, Order 29 of the Federal Court Rules contemplates and facilitates the hearing and determination of separate questions and the consolidation of proceedings. As I have already said, no express reference is made in Order 29 to the splitting of a proceeding into two separate proceedings.
15 The question, it seems to me, involves not only a question of power under the Federal Court Act, but also under the Act itself. Section 67(2) of that Act specifically permits the Court to deal, in separate proceedings, with different parts of an area covered by a single application, but only, it seems to me, in the limited circumstances of s 67, namely, where there are overlapping native title applications.
16 The considerations that have led me to conclude that it is necessary to have all of the parties to a proceeding agree to a proposed order under s 87 lead to the conclusion that it is inappropriate to contemplate a splitting of a single proceeding into two proceedings. However at this stage, I refrain from expressing a final view on the question, because it does appear to me that there is an alternative procedure available that will achieve the desires of the parties, without prejudice to any party. That procedure is the alternative suggested by the applicants, namely, that they amend the current application pursuant to s 64 of the Native Title Act to reduce the area of the land and waters covered by the application to the Part A land only.
17 Against the possibility that I would be of such a view, the Gunggari People have commenced a fresh proceeding today in respect of the Part B land. There will be certain procedural requirements that must be satisfied in relation to that fresh proceeding. For example, it will be necessary for the notification process to be undertaken. A great deal of work has been done by the parties to date by way of mediation and negotiation, with a view to resolving, or at least narrowing, the issues that exist in relation to the Part B land. There appears to me to be no reason why that work would be lost. That effort can equally be directed to the fresh proceeding that has been commenced today.
18 The appropriate course for the applicants, it seems to me, is the alternative that they have suggested, namely, to amend the current application. To the extent that leave is needed, I would be disposed to give such leave. Leave seems to be unnecessary, since s 64 gives that power to the applicants.
19 There are procedural consequences that would flow from the adoption of the proposed course. One consequence is that it would be appropriate to order that many of the current parties to the existing proceeding be removed as parties from the present proceeding, pursuant to s 84(8). I would also order, pursuant to s 84(5) of that Act, that all of the present parties to the current proceeding be joined as parties to the new proceeding commenced this morning. It may be that some of the parties who are presently parties to the existing proceeding are no longer appropriate parties, having regard to changes in the Act. However, it is a matter for the applicants to move the Court for removal of those parties, if they are now so advised.
20 I propose, that if the applicants wish to proceed with this course, to fix a time in the near future for a detailed directions hearing for the further disposition of the new proceeding. I would also fix the existing proceeding for directions on that day, with a view to hearing submissions from the parties that it is appropriate to make orders under s 87 in relation to the Part A land. Notwithstanding the directions that I gave on the last occasion, for reasons that have now become apparent, there has not yet been an agreement reached pursuant to s 87. If, on the next occasion, I am satisfied as to the matters within s 87(1), and I am satisfied that a consent determination is appropriate, I would then fix a day on which it would be appropriate to make those orders; probably in that part of Queensland where the land itself is situated. Those formalities, however, can be dealt with on that occasion.
21 The final matter that has been agitated in the course of the motion concerns the nature of the Court's discretion in making an order under s 87. My attention has been drawn to other determinations that have been made by the Court by consent pursuant to s 87. In each of those cases, the Court has been satisfied that it appears appropriate to make the orders sought. In some cases, the Court has expressed satisfaction after making alterations to the orders sought. However, there is no authority that clearly identifies the particular factors that ought to be taken into account by the Court before being satisfied. Various factors have in fact been taken into account in other cases. The particular question that has been the subject of argument before me relates to the extent to which the Court should have regard to evidence or other materials that might normally be tendered, were a matter to proceed to a contested hearing.
22 The question is of significance in this way. While most of the parties to the present proceeding have no interest in the Part A land, they have a relevant interest in relation to the Part B land. Concern has been expressed that no determination should be made in relation to the Part A land based on the evidence thus far foreshadowed in relation to the Part A land, if that evidence were to be taken as being in any way relevant to the determination of the issues in relation to the Part B land. One of the parties to the proceeding, Mr Darryl Alan Abraham, has made submissions concerning that matter. The Court must, of course, exercise caution where any declaratory order involving property rights is sought. Orders that have particular public interest elements require closer examination by the Court than orders that operate solely inter partes. A determination under the Act that native title exists, and perhaps even a determination that it does not exist, is a real action, in the sense that an order generally operates against the entire world. It does not only resolve an issue inter partes.
23 Mr Abraham contends that, although there is no need for the Court to undertake a detailed, substantive examination of the claim, the Court must nevertheless undertake an examination of the evidence. His concern is that the evidence that has presently been foreshadowed in relation to the Part A land would not satisfy the requirements concerning the existence of native title in relation to the Part B land. He is concerned that whatever is done in relation to the Part A land should not in any way preclude the parties who have an interest in the Part B land from contending that the present applicants do not have an entitlement in relation to the Part B land.
24 The specific question, then, is whether the Court, in considering an order under s 87, should consider evidentiary material such as evidence of ancestry, connection or partial extinguishment before making an order pursuant to s 87. The concern is that any findings that the Court may make, either explicitly or implicitly, in the course of making a consent determination will make it difficult for different findings and conclusions to be sought in other cases where the evidence might otherwise be thought to be the same, notwithstanding that there could be no issue estoppel if there is a fresh proceeding to deal with the Part B land.
25 The present applicants contend that the words “if it appears to be appropriate to do so” in s 87 relate to the Court's acting in accordance with s 87(2) or 87(3). They contend that the section requires that it appear appropriate to the Court that it make an order giving effect to the terms of the agreement in respect of the land without a hearing. That places emphasis on the order itself rather than any need for the Court to be satisfied as to the merits of the claim. That means that the Court is not necessarily compelled to act in accordance with the agreement of the parties.
26 The operative words of s 87 are that the Court “may act”, thereby conferring a discretion on the Court. Once the conditions precedent to the exercise of the discretion have been satisfied, the discretion is unfettered, although it must be exercised judicially in accordance with ordinary principles. Therefore, it is not necessary, so it is contended, for the Court to satisfy itself by evidence as to the merits of the claim, although it is conceded that, in some cases, the Court may wish to see some of the evidence going to the merits. In a case where the State is a party and it indicates its satisfaction by consenting to the determination, the applicants contend that there would be no necessity for the Court to inquire into the merits of the claim.
27 It is not possible, and certainly would be inappropriate, for me to endeavour to set out exhaustively the considerations that should be taken into account in making a determination under s 87. However, it is appropriate that I indicate some of the factors that in my view appear to be relevant in the present case for any decision concerning a determination under s 87.
28 As I have already said, the Court must act judicially. That is to say, it cannot simply act capriciously. The Court must have regard to the objects and purposes of the Act. One important object and purpose to be found in the Act is resolution of issues and disputes concerning native title by mediation and agreement, rather than by Court determination. Detailed procedures are set out in the Act to achieve those objects.
29 Next, the Court must have regard to the question of whether or not the parties to the proceeding, namely, those who are likely to be affected by an order, have had independent and competent legal representation. That concern would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of the State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely.
30 However, that is not to say that the Court would itself want to predict the State's assessment of that evidence or to make findings in relation to those matters. On the other hand, in an appropriate case, the Court may well ask to be shown the evidence upon which the parties have based their decision to reach a compromise. Either way, I would not contemplate that, where the Court is being asked to make an order under s 87, any findings would be made on those matters. The Court would look at the evidence only for the purpose of satisfying itself that those parties who have agreed to compromise the matter, particularly the State on behalf of the community generally, are acting in good faith and rationally.
31 Another matter that the Court would have to take into account would be whether the native title rights and interests that are to be declared in the determination are recognisable by the law of Australia or the State in which the land is situated. The Court may need to be satisfied whether native title had been extinguished and, if so, whether the extinguishment should be disregarded pursuant to provisions such as ss 47, 47A or 47B. Again, the Court may be prepared to accept that those matters have been considered by appropriate respondents, and the Court may be entitled to rely on appropriate assurances in relation to those matters, rather than to receive evidence of them.
32 The Court would also need to be satisfied that all of the requirements of the Act are complied with, such as s 55, if applicable, or ss 94A and 225. As with any order made by the Court, the Court would need to be satisfied that the proposed orders are unambiguous and certain as to the rights declared.
33 There may in particular cases be other factors that the Court might take into account. One such factor was considered by Carr J recently in the case of Ngalpil v State of Western Australia [2001] FCA 1140 relating to the Djurabalan People. In the orders that his Honour made in that case, account was taken of the possible effect of orders that might be made by the High Court in State of State of Western Australia v Ward (P59, P62, P63 and P67 of 2000). The parties to the agreement before Carr J incorporated into their agreement clauses that provide a mechanism relating to minerals and petroleum, which may enable a variation to be made to the determination if the High Court overturns or sets aside the decision of the Full Court in State of Western Australia v Ward (2000) 99 FCR 316. I simply mention that case as the sort of other consideration that it would be appropriate for the Court to have regard to in determining whether it is appropriate to make an order under s 87.
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As I have said, I have not intended to make an
exhaustive list, but I have indicated my provisional views as to the matters
that I would have to be satisfied about if I am to be asked to make an order
pursuant to s 87. In the result, I will
fix a date convenient to the parties in the near future for the purposes of
giving directions in relation to the fresh proceeding, if that is the course
that the applicants wish to adopt.
Should the parties in the current proceeding press for a consent
determination, they will need to satisfy me that the prerequisites of s 87(1)
have been satisfied for the purpose of making orders under ss 87(2) or 87(3) in
relation to that
proceeding.
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I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. |
Associate:
Dated: 3 September 2001
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Counsel for the Applicant: |
Mr J Kildea with Mr P Kilduff |
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Counsel for the Respondent: |
Mr G Hiley QC |
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Solicitor for the Respondent: |
Department of the Premier and Cabinet |
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Solicitor for Pastoralists |
Deacons Lawyers |
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Counsel for Mining Interests |
Mr S MacGregor |
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Solicitor for Mining Interests |
Blake Dawson Waldron |
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Counsel for Bidjara People |
Mr L Stephen |
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Solicitor for Bidjara People |
Ross Finlayson |
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Date of Hearing: |
23 August 2001 |
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Date of Judgment: |
23 August 2001 |
