FEDERAL COURT OF AUSTRALIA

Ngunawal People v Australian Capital Territory [2004] FCA 785

NGUNAWAL PEOPLE & ANOR v AUSTRALIAN CAPITAL TERRITORY & ANOR

N6007 OF 2002

EMMETT J

19 MARCH 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The notice of motion filed, pursuant to leave granted on 16 March 2004, be dismissed.

2.         The applicant on the motion pay the costs of the Commonwealth.

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

REASONS FOR JUDGMENT

1                     On 24 May 2002 a native title determination application was lodged with the Court.  The name of the applicant is Mr Dean Bell, who claims to have brought the application on behalf of the Ngunawal People, a native title claim group that includes himself and many others.  The native title determination application relates to land in the Australian Capital Territory, although Mr Bell presently lives at Windsor in New South Wales.  The application has not been notified or registered, although there is no suggestion that it will not be registered in the fullness of time.

2                     Earlier this week, Mr Bell sought leave to file a notice of motion in the native title determination application proceeding seeking interlocutory relief formulated as follows:

‘1.        An injunction to stop all land development on the Gungahlin Drive Extension immediately until consultation and discussion with the Aboriginal Traditional Owners about Cultural Heritage Issues.

2.         Land development is only to commence after cultural Heritage Issues have been satisfactorily negotiated and agreed between all parties.

3.         Appeal the decision to commence Gungahlin Drive Extension, given the Cultural Heritage Consultation and Issues were not addressed properly.’

The notice of motion was supported by an affidavit by Mr Bell in which he said:

‘I am the applicant for Native Title claim number N 6007/2002.  The Gungahlin Drive Extension is located on an area of great cultural significance to the Ngunawal people.  I was initially contacted by the National Capital Authority and Environment ACT approximately 12 months ago regarding the cultural heritage issues of the Gungahlin Drive Extension.  This contact involved a Cultural Heritage walk of the proposed land development.  On this walk, a very significant site was located and was to be recorded by Environment ACT. 

The site is at the end of the proposed road, and it was agreed, on site, by all parties to realign the road in order to protect and preserve the culture and Heritage of the Ngunawal People.  NCA and ACT Government representatives were present and there was disagreement from one of the representatives initially, but later agreed.  This was the last contact I had with the Gungahlin Drive extension.  I telephoned the ACT Government about progress but was told nothing was happening approximately six months ago. 

I am now informed that consent to destroy the site has been signed off by an Aboriginal person who is not a traditional owner, but has occupied the area of the ACT.  This person is of a different Aboriginal culture to the Ngunawal people, therefore NCA and the ACT Government rather than preserving and protecting Aboriginal Culture and Heritage, they had an Aboriginal person sign the consent to destroy a very significant site.  This area of proposed work is within the boundary of my native title claim.  It is proposed that work commences on Tuesday 15 March 2004.’

3                     Notwithstanding the deficiencies in the form of that affidavit, I granted leave to Mr Bell to file his notice of motion returnable before me as Duty Judge today, and abridged time for service.  The parties named in the application are the Australian Capital Territory and the National Capital Authority.  The National Capital Authority is not an entity, but both the Australian Capital Territory and the Commonwealth were represented on the return of the motion before me today. 

4                     Mr Bell sought leave to file several documents as follows: 

• an extract from the Australian Heritage database consisting of place details of Black Mountain, Aranda Bushland, O’Connor Ridge, Gossin Hill, Belconnen Way and Bruce in the ACT;
• a table entitled, ‘Areas of Aboriginal Cultural Significance in the Australian Capital Territory’ which Mr Bell said that he had prepared himself; and
• a statement of Mr Kelvin Officer dated 17 March 2004 filed in the Australian Capital Territory Administrative Appeals Tribunal, proceeding numbers AT 04/28 and AT 04/29.

5                     None of that material had been served on the respondents, who indicated they were not in a position to deal with that material.  Mr Bell also indicated that he intended to rely on the provisions of the Native Title Act 1993 (‘the Act’) and on the terms of his native title determination application, together with the decision of Drummond J in Fourmile v Selpam Pty Ltd & Fourmile v The State of Queensland [1998] FCA 67. 

6                     After hearing Mr Bell, who is, I have no doubt, genuinely concerned about a threat to a traditional site, I have concluded that this application is misconceived and that there would be little utility in adjourning the motion and giving directions for evidence to be filed.  An affidavit of Tony Gill sworn 18 March 2004 was filed on behalf of the Australian Capital Territory.  Mr Gill is Director of Roads of the ACT, a division of the Department of State of the ACT known as the Department of Urban Services.  He is the official responsible on behalf of the ACT for the Gungahlin Drive Extension Project (“the Gungahlin Drive Extension”), which is the subject of Mr Bell’s motion. 

7                     Mr Bell’s affidavit does not identify with any particularity the site that is of immediate concern to him.  However, Mr Gill attaches to his affidavit an extract from the Preliminary Assessment Report for the Gungahlin Drive Extension (‘the Report’).  The Report is a prerequisite to the granting of development approval for the carrying out of the Gungahlin Drive Extension.  Included in the Report is a sketch plan to which Mr Gill refers by way of indicating the course of the proposed road.  He refers to it as a site at ‘the end of the proposed road’.  Mr Gill, in his affidavit, made reference to a site at the end of the proposed road, which was the subject of consultations with representatives of Aboriginal people.  As a result of those consultations, various modifications were made to the road proposal to avoid a site containing remains of an Aboriginal camp site at the end of the proposed road in the area known as Glenloch.  Mr Gill also says that some modifications of the road design were made to avoid impact on certain rare native flora in the area. 

8                     That site, however, while it seems to coincide with the description in Mr Bell’s affidavit, is not the site to which Mr Bell made reference in the course of his submissions to the Court.  Rather, in the course of his submission, Mr Bell identified a different site close to the junction of Caswell Drive with Belconnen Way.  Mr Gill’s evidence is that there is no immediate suggestion that the work on the Gungahlin Drive Extension will affect that site.  The work that is presently being carried out is some kilometres to the north-east of that site.  Accordingly, there is no immediate threat, as was suggested when I granted leave earlier in the week, that work commencing on 15 March 2004 might affect the site identified by Mr Bell. 

9                     The proceeding presently before me, as I have said, is a notice of motion brought in the native title determination proceeding.  I had understood it to be, in essence, an application for interlocutory relief in aid of the native title determination.  However, as I have said, I consider that it is misconceived to that extent.  It also seeks to call into question in some way a decision to commence the Gungahlin Drive Extension.  A notice of motion in the native title determination proceeding is certainly not the way to challenge that decision. 

10                  In any event, the provisions of the Act rather indicate that, even if there is a threat to native title heritage sites by reason of the construction of the Gungahlin Drive Extension, any grant of native title would not necessarily stand in the way of the construction.  Section 24KA of the Act applies to a future act if the future act permits and requires the construction, operation, use, maintenance or repair by or on behalf of any person of any of the things listed in s 24KA(2) to be operated, for the general public.  Section 24KA(2) provides that, for the purpose of that provision, the things in question include a road.

11                  Section 24KA(3) provides that, if those provisions apply to a future act, the future act is valid.  There are procedural rights conferred on native title claimants and rights to compensation.  However, that analysis does rather suggest that, even if Mr Bell’s concerns are properly founded, the native title of the Ngunawal People, whatever that might comprise, would not extend to preventing the construction of the Gungahlin Drive Extension.  That is not to say that Mr Bell on behalf of the Ngunawal People, as the native title claim group, does not have some legitimate and enforceable rights.  However, the provisions to which I have referred indicate that the notice of motion is misconceived insofar as it is filed in the native title proceeding and claims interlocutory relief in aid of the native title claim. 

12                  I therefore propose to dismiss the motion on the basis that there is no utility in continuing with a hearing of it, either now or on the basis of further evidence.  I have suggested to Mr Bell that there may well be procedures available to him by which he could call into question decisions that have been made, that on his submission, fail to take account of the legitimate interests of traditional Aboriginal people.  I do not have before me material that enables me to express any view about that.  However, if a decision has been made by an officer of the Commonwealth under some Commonwealth legislation, which is capable of challenge on one of the grounds provided for in the Administrative Decisions (Judicial Review) Act 1977 (Cth), it may be open to Mr Bell to take proceedings to challenge that decision.  There may also be procedures available to challenge any decision of the Australian Capital Territory Government that has given rise to the proposed work. 

13                  Mr Bell’s affidavit refers to communications of many months ago and it may be that renewed consultation will result in some satisfactory resolution of the present dispute, if there is one.  That, however, is a matter for Mr Bell.  All I can do is commend to him the course of consulting with the appropriate officers of the Australian Capital Territory Government and, if need be, taking legal advice as to whether there is any basis for challenging any decision made in relation to the Gungahlin Drive Extension.  Be that as it may, I propose to dismiss the notice of motion presently before me. 

14                  The Commonwealth asks for its costs of the application.  The Australian Capital Territory does not ask for costs.  The Commonwealth properly draws my attention to s 85A of the Act, which provides that, unless the Federal Court otherwise orders, each party to a proceeding must bear his or her own costs.  However, it is clear enough that ‘proceeding’ means a proceeding brought under the Act.  As I have indicated, this notice of motion, although I have no doubt brought with the best intentions, is misconceived.  The decision by the Commonwealth’s National Capital Authority to approve the Gungahlin Drive Extension was not a decision made under the Act and, if a challenge is to be made to any decision of the Commonwealth, the challenge must be brought under some other provision. 

15                  I consider that it is appropriate to order the applicant to pay the Commonwealth’s costs.  However, I observe that the applicant appears without legal representation and has indicated his desire and wish to continue to negotiate in good faith with the appropriate bodies in order to pursue the interest that he claims, as representative for the Ngunawal People, in the land, that might be affected by the roadway.  It is, of course, a matter for the Commonwealth as to whether it enforces the order.  It is no function of the Court to express any view one way or the other as to whether any party enforces the rights that it has.  However, it is clearly the case that Mr Bell acted in good faith, albeit badly advised, in bringing the proceeding. 

Associate:

Dated:              21 June 2004