FEDERAL COURT OF AUSTRALIA

Griffiths v Northern Territory of Australia [2003] FCA 1177

NATIVE TITLE – application to determine as a preliminary question whether s 47B of the Native Title Act 1993 (Cth) is available to the benefit of applicants – whether trial of preliminary question should be ordered

PRACTICE & PROCEDURE – application for determination of preliminary question pursuant to O 29 r 2 of the Federal Court Rules

Native Title Act 1993 (Cth) s 47B

Lands Acquisition Act (NT) s 32

Crown Lands Act (NT)

Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 cited

Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 cited

SmithKline Beecham (Australia) Pty Ltd v Chipman [2003] FCA 796 cited

Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1985) 10 FCR 567

Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 cited

EnergyAustralia v Australian Energy Ltd [2001] FCA 1049 cited

Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406 cited

Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 cited

Griffiths v Lands and Mining Tribunal [2003] NTSC 86 considered

Hayes v Northern Territory (1999) 97 FCR 32 considered

Daniel v State of Western Australia [2003] FCA 666 considered

ALAN GRIFFITHS AND WILLIAM GULWIN OBO NGALIWURRU AND NUNGALI PEOPLE v NORTHERN TERRITORY OF AUSTRALIA AND ORS

No D 6012 of 2000

No D 6016 of 1999

No D 6008 of 2000

MANSFIELD J

DARWIN

31 OCTOBER 2003

THE COURT ORDERS THAT:

1.         The application by the applicants for the determination of a preliminary question before the hearing and determination of the substantive proceedings be refused.

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

REASONS FOR JUDGMENT

1                     By order of the Court made on 9 September 2003 these three proceedings were directed to be heard together, and the evidence in each matter be evidence in the other matters. 

2                     The applicants in each matter have now applied for the determination of a preliminary question pursuant to O 29 r 2 of the Federal Court Rules as to whether s 47B(1)(b)(2) of the Native Title Act 1993 (Cth) (the NT Act) has application to the land the subject of these native title determination applications.

3                     Before considering the application, reference should be made to O 29 r 2(a) of the Rules, and to the considerations which have guided the exercise of its power. It provides:

‘The Court may make orders for –

(a)               the decision of any question separately from any other question, whether before or after any trial or further trial in the proceedings; …’

“Question” is defined in O 29 r 1 to include any question of law or fact in issue in the proceeding.

4                     Order 29 r 2 recognises that there are circumstances when it will be in the interests of justice for the separate trial of a question in a proceeding.  That is because in the ordinary course all issues of fact and law should be tried together:  Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130.  There should be some identifiable benefit in directing the separate trial of a question.

5                     Generally, the procedure should be directed to securing determination of a question which may make a substantive hearing unnecessary, at least if the question is answered in a particular way:  Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 at 449; or if the question however answered may lead to the real prospect of informal resolution of the entire proceeding.  In SmithKline Beecham (Australia) Pty Ltd v Chipman [2003] FCA 796 Weinberg J declined to order the trial of a separate question because a particular finding on that question would not finally resolve the issue even though a converse finding might do so.

6                     For example, the separation of the issues of liability and quantum may lead to the proceeding being dismissed or, if liability is found to exist, may enable the parties to reach a negotiated outcome on the issue of quantum:  Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1985) 10 FCR 567.  If the issue of quantum is likely to be contentious in any event, the reason for the separate trial of the question of liability would be less.  If there is potential overlap of factual issues on separate questions arising in the proceeding, it is unlikely that a separate trial of a question would be ordered:  Reading Australia Pty Ltd v Australasian Mutual Provident Society [1999] FCA 718; Energy Australia v Australian Energy Ltd [2001] FCA 1049.  That is particularly so when there are witnesses who may need to give evidence on the separate questions, especially where submissions may be made as to the weight to be given to the evidence of a particular witness or witnesses.

7                     In considering the interests of justice, it must also be borne in mind that resolution of a separate question in a proceeding, unless it will or is likely to lead to overall resolution of the proceeding however answered, may delay the further conduct of the proceeding whilst the parties pursue appeal rights and including in some instances an application for special leave to appeal, and if leave is granted, an appeal to the High Court.

8                     Where the separate question sought to be tried is (as here) a question of law, it is desirable that facts upon which that question of law is to be tried should be clearly and definitively established:  Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406.  If there is a risk that the factual foundation upon which a separate question is to be determined may shift by evidence later given at the trial, or may be expanded in any potentially relevant way by evidence later given at the trial, there is a risk that the preliminary trial of the issue will become pointless, or may need to be qualified:  Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488.  It is also undesirable that the separate trial of a question should be ordered where the background and factual matrix on which the question arises is not agreed or might not be fully determined.

9                     The land in each of the applications is within the town boundary of Timber Creek.  The issue which is sought to be determined as a preliminary question in substance is whether s 47B of the NT Act is available to the benefit of the applicants notwithstanding extinguishment, or partial extinguishment, by virtue of the declaration of the town boundary of Timber Creek.

10                  The applicants claim exclusive native title rights and interests in all vacant Crown land in the Town of Timber Creek.  On 10 May 1995 the Town of Timber Creek was excised from a Commonage Reserve proclaimed on 16 August 1934.  It had previously been subject to a pastoral lease.  The land in question comprises Lots 47, 71, 72, 97, 98, 99, 100, 114 and proposed Lot 109.  It is unnecessary to distinguish between the several lots.

11                  The event prompting the applications in each instance was the issue of three notices of proposal and notices of proposed acquisition given by the Minister for Lands, Planning and Environment (NT) to compulsorily acquire the land the subject of these applications pursuant to s 32 of the Lands Acquisition Act (NT) (the LAA).  The notices in each case indicated that it was proposed to acquire ‘All interests including native title …’ in the land.

12                  Following the notice under s 32 of the LAA, and the hearing of the objections to the proposed acquisitions, in addition to the three applications for the determination of native title, proceedings were instituted in the Supreme Court of the Northern Territory challenging the power of the Minister for acquire the land under the LAA.  On 31 July 2003 Angel J gave judgment:  Griffiths v Lands and Mining Tribunal [2003] NTSC 86.  His Honour determined that the LAA, in the absence of an express statutory power to acquire Crown Land, could not be used for the purpose of acquiring land under the LAA so that the proposed acquisitions were invalid.  His Honour’s conclusion is encapsulated in his reasons at [23] in the following terms:

‘The position, generally, it seems to me, may be summarised as follows.  In the absence of express power to do so, land in which the Crown has radical title or in which the Territory has a registered fee simple and no other party has any beneficial interest derived from the Crown can not be compulsorily acquired.  Where parties other than the Crown hold registered estates or interests the land can be acquired.  Where, as here, the land is Crown land (land in which there is only radical title or which is registered in the Territory) and there is or may be a third party unregistered interest underived from the Crown, the land can not, but the unregistered third party interest may, be compulsorily acquired.’

Consequently the decisions to compulsorily acquire the land were beyond power under the LAA and an order made restraining the Minister from compulsorily acquiring the land pursuant to the decisions to do so.

13                  It was common ground between the parties that an appeal has been instituted from that decision, and is likely to be heard by the Full Court of the Supreme Court of the Northern Territory within the next several months.

14                  The application first involves the applicant in each application showing the nature and extent of the necessary connection with the land to establish the evidence and content of native title rights and interests with respect to it.  The existence of native title rights and interests is then vulnerable to being extinguished in certain circumstances.  That is where s 47B may come into play.

15                  An issue that will need to be determined at some point in this proceeding, and in some other proceedings, is whether s 47B of the NT Act is available in respect of land within the gazetted town boundary of Timber Creek, or within gazetted town boundaries in the Northern Territory, so that extinguishment can be ignored.  Section 47B(2) of the Act provides that:

‘For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.’

16                  The particular issue arises because s 47B applies only in limited circumstances.  Section 47B(1) provides:

‘(1)      This section applies if:

(a)               a claimant application is made in relation to an area;  and

(b)               when the application is made, the area is not:

(i)                 covered by a freehold estate or a lease;  or

(ii)               covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose;  or

(iii)             subject to a resumption process (see paragraph (5)(b));  and

(c)                when the application is made, one or more members of the native title claim group occupy the area.’

Relevantly for present purposes, it is said, the section should apply provided that the land is not at the time of the application covered by a proclamation made or conferred by the Crown in any capacity under which the land is used for public purposes or for a particular purpose.

17                  The proposed notices of acquisition, and the notices of proposed acquisition under s 32 of the LAA in each case propose to acquire the subject land and ‘all interests including native title rights and interests (if any) in the land’.  The proposed acquisition in each case, apart from the procuring or granting or retention of service easements, was finally that a Crown Lease be granted under the Crown Lands Act (NT) to a nominated company for the purpose of developing a cattle husbandry facility, and that upon completion of the development, the Crown Lease be surrendered in exchange for freehold title (Lot 109); secondly, for the purpose of goat breeding, production, market garden and ancillary (Lot 47); and thirdly, for the purpose of offering the land for sale by public auction and that the Crown Leases to be granted under the Crown Lands Act for the purpose of commercial/tourism development and upon completion of the development to be surrendered in exchange for freehold titles (Lots 97, 98, 99, 100 and 114).

18                  The question whether s 47B may apply within a town boundary has arisen in other proceedings.  In Hayes v Northern Territory (1999) 97 FCR 32 at [162] – [168], Olney J applied s 47B and in relation to some land within the Alice Springs town boundary held that extinguishment must be ignored.  The contrary proposition was not there argued.  In Daniel v State of Western Australia [2003] FCA 666, Nicholson J at [970] – [971] said:

‘Section s 47B [sic] of the NTA has no application to the Karratha Townsite area because that area is “covered by a … proclamation, [and/or] dedication … made or conferred by the Crown in any capacity … under which the whole … of the land … in the area is to be used for public purposes or for a particular purpose”.  The original declaration of the Karratha townsite was made by the Governor (see the Land Act 1933 s 10) who is “the Crown in any capacity”.  The boundaries of the townsite were defined (Land Act 1933 s 10(1)) and set apart as town and suburban lands (s 10(7)) – which constitutes a proclamation or dedication.  A townsite is a public purpose, as well as a particular purpose. 

Furthermore, s 47B of the NTA has no application because the Karratha townsite area is covered by Temporary Reserve 5461.’

19                  The applicants propose to adopt the approach in Hayes on this matter, and to contend that the decision of Nicholson J is specific to certain land in Western Australia, or is in error.  They therefore propose to contend that the proclamation on 10 May 1975 excising the Town of Timber Creek from the Commonage Reserve did not have the effect that the land ‘be used for public purposes or for a particular purpose’ as referred to in s 47B(1)(b)(ii) of the NT Act, so that the beneficial effect of s 47B(2) applies and extinguishment must be ignored. 

20                  The respondent contends that the case is an inappropriate one in which to state a case for the determination of the proposed preliminary question.

21                  I have come to the view that it is inappropriate to make the order sought in this matter.  My reasons are as follows.

22                  In the first place, resolution of those issues would not on any view of the matter lead to the determination of the proceedings.  If the preliminary question were resolved in favour of the applicants, then they would push for exclusive possessory native title rights in the land.  Issues as to connection, and as to the nature of native title rights and interests which may vest or lie with the land, would still need to be determined.  There may be other issues as to extinguishment.  If the question asked were to be determined consistently with what has been said to be the views of Nicholson J (if they apply generally), counsel for the applicants acknowledge that in any event the applicants would proceed with their claim but would be obliged to seek non-exclusive possessory native title rights and interests.  The case will therefore proceed in any event, and the benefit of having the issue determined at this point would not be substantial.  Moreover, if the point is so significant as the applicants assert, it would be unlikely that the determination of the issue by a single Judge would result in the matter being left there.  I bear in mind the possibility that, on that issue, there would be an appeal to the Full Court of this Court, and possibly an application for special leave to appeal to the High Court and, if leave were granted, an appeal to the High Court.  The processes may well take a considerable time.

23                  This matter is one where, mediation having been explored, the prospects of successful resolution by mediation do not appear to be great.  It is in the group of cases which are next proposed to be listed for hearing in the Northern Territory.  The point has been reached where directions would routinely be given to that effect.  To accede to the order which is now sought may result in the matter not being listed or allocated for listing until the resolution of the proposed preliminary question, including the prospect of the considerable delay whilst appeal processes are undertaken.  It is clear from submissions made by counsel for the applicants that they would resist directions having the matter prepared for trial and proceeding to trial whilst that question were determined.  If on the other hand the proceedings were to go ahead in any event, resolution of that question would not make any significant impact upon the preparation of the matter for trial.  There has been no evidence to suggest to the contrary.

24                  Thirdly, the basis upon which the application is made is insufficiently clear to warrant the separate question being tried at this stage.  So far as I can determine, there is no agreement between the parties as to facts upon which the proposed question should be determined.  It is a question to be determined presently upon some general facts, but without specific findings as to the tenure or history of the land in question.  There has been no formal set of facts presented upon which the parties agreed to be bound in the course of the proceedings generally.  The resolution of the question may involve considerations or aspects which the parties might address in evidence in the course of the overall hearing so that its resolution might not be a final resolution for the purposes of the proceedings. 

25                  Fourthly, I am mindful of the proceedings in the Supreme Court of the Northern Territory to which I have referred.  At present, the proposed acquisitions are invalid.  If, however, that decision is reversed on appeal, counsel for the applicants acknowledges that the compulsory acquisition of the land and those interests would mean that the claim itself could not proceed.  If the appeal which has been instituted, were to be successful and to restore the validity of the process of the proposed acquisitions, that itself might put an end to the present applications in a practical sense.  It seems to me that the process of having determined the validity of the acquisitions should be permitted to proceed before the trial of issues in this matter, except for its general preparation towards a hearing.  If the proposed acquisitions are held to be valid, the question which is now sought to be asked will become academic.

26                  I accordingly do not propose to accede to the application.  In my view the matter is now ready for substantive allocation.  Attempts at mediation have failed.  In view of the impending appeal, however, the directions which may be given by the trial Judge will no doubt take into account the possibility that, depending upon the outcome of that appeal, the applications may simply be acknowledged as having no real benefit by virtue of the subsequent lawful acquisition of the land the subject of the proceedings.  There is a dispute between the parties as to the timetable which should be fixed for the exchange of ‘connection’ evidence, in particular anthropological evidence.  There are issues as to the resources available to the solicitors for the applicants to require that to be done.  Those matters can be considered by the trial Judge.

Associate:

Dated:              24 October 2003