FEDERAL COURT OF AUSTRALIA

Kemp v Registrar, Native Title Tribunal [2006] FCA 568

KEITH KEMP v REGISTRAR, NATIVE TITLE TRIBUNAL & ORS

NSD 35 OF 2006

EMMETT J

5 MAY 2006

SYDNEY

THE COURT:

1.         Notes that the first respondent filed a submitting appearance.

2.         Orders that the notice of motion filed on 27 April 2006 be stood over for hearing on 19 May 2006.

3.         Orders that the costs of the second, third and fourth respondents’ costs of today be their costs in the proceeding.

4.         Orders the applicant to pay the costs of today of the fifth and sixth respondent.

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

REASONS FOR JUDGMENT

1                     I have before me a notice of motion brought in a proceeding which is presently in the docket of another judge.  The motion seeks an order prohibiting building or other works in an area in northern New South Wales.  The area is in the jurisdiction of the Greater Taree City Council and is on a headland in the South Pacific Ocean bordered by Khappinghat Creek.  The area, as I understand it, is known as Khappinghat Nature Reserve and Saltwater National Park.

2                     On 12 December 2005, the National Native Title Tribunal (‘the Tribunal’) decided that an indigenous land use agreement should be registered in respect of the Saltwater National Park under s 24CL of the Native Title Act 1993 (Cth) (‘the Act’).  An indigenous land use agreement is an agreement meeting the requirements of ss 24CB to 24CE of the Act.  In this proceeding, the applicant, Mr Keith Kemp, seeks an order setting aside the decision of the Tribunal to register the agreement.

3                     The agreement recites that Ms Patricia Davis Hurst, the fifth respondent, acting on behalf of the Saltwater people, lodged Applications for Determination of Native Title under the Act.  By those applications Ms Hurst claimed, on her own behalf and on behalf of the Saltwater people, to hold native title in the land and waters comprising Saltwater National Park and part of the Khappinghat Nature Reserve.

4                     The sixth respondent, the Saltwater Tribal Council, an Aboriginal Corporation, was incorporated by the Aboriginal Councils and Associations Act 1976 (Cth) for the purpose of holding native title in trust for the Saltwater People.  The State of New South Wales is prepared to recognise that the Saltwater People hold native title rights and interests in the Saltwater National Park and part of the Khappinghat Nature Reserve.

5                     The agreement recites that various Ministers of the Crown in right of New South Wales, Ms Hurst, Saltwater Tribal Council and Greater Taree City Council entered into the agreement for the purpose of:

(a)        recognising that the Saltwater People hold native title in the land and waters concerned;

(b)        regulating exercise by the Saltwater People and the Saltwater Tribal Council of the native title rights and interests in the Agreement Area, as defined;

(c)        providing for a role for the Saltwater Tribal Council in the future management of the Saltwater National Park and part of the Khappinghat Nature Reserve;

(d)        providing for the withdrawal of the native title determination applications made by Ms Hurst;

(e)        settling other matters between the Parties.

6                     By clause 3 of the agreement, the parties agree that the relevant State Minister and Ms Hurst and the Saltwater People will jointly apply in writing to the Native Title Registrar for the agreement to be registered as an indigenous land use agreement.  By clause 9.1 of the agreement, the parties agree and acknowledge that certain acts set out in Schedule 12 of the agreement are valid and are taken always to have been valid.  Schedule 12 refers to a number of validated acts, namely:

‘(a)      reservation of Saltwater National Park under… the [National Parks and Wildlife] Act;

 (b)      amenities block;

 (c)       viewing platform;

 (d)      steps to beach on northern side of headland;

 (e)       fencing;

 (f)       signage;

 (g)      parking;

 (h)      water mains.’

7                     By clause 8, the parties consent to the doing of future acts as set out in Schedule 8 in relation to the Saltwater National Park in accordance with that schedule.  Schedule 8 specifies the following acts:

‘(a)      The amendment, repeal or the re-making of the [National Parks and Wildlife] Act;

 (b)      The making of a Plan of Management and any subsequent amendments;

 (c)       Construction of a Camping Ground Area in accordance with the Plan of Management [as defined in the agreement];

 (d)      Construction of a toilet/shower facility in accordance with the provisions of Schedule 11;

 (e)       Construction of vehicle access and parking for the Camping Ground Area [as defined];

 (f)       Construction of picnic tables and barbecue facilities for the Camping Ground Area

 (g)      Construction of signage for the Camping Ground Area;

 (h)      Erection of a plaque recording the use of the land by the Indigenous People of the Manning River Valley.’

8                     Mr Kemp claims that the decision of the Tribunal to register the agreement should be set aside because the decision involved an error of law and because of a breach of the rules of natural justice in connection with the making of the decision. As I understand it, Mr Kemp claims to have a native title interest in the Saltwater National Park and claims that the Saltwater People were not authorised to enter into the arrangements represented by the agreement. 

9                     The application before me was filed on 27 April 2006, and contains only the following prayer:

‘An order (or declaration) that all building or other works stop in the application area immediately.’

10                  Mr Kemp had also filed a notice of motion at the same time as he filed his substantive application on 3 January 2006.  By that notice of motion, Mr Kemp claimed an order ‘suspending the implementation of the indigenous land use agreement and any of its capital works until a review of and determination upon the decision to register the agreement is completed by the Federal Court’.

11                  While that notice of motion was nominally returnable at 2 pm on 3 January 2006, it does not appear to have been given a hearing date until 2 March 2006, the return date of the original application which, curiously, has the date 9 January 2006 stamped on it, although it also has a note indicating that it was filed on 3 January 2006.  When the matter came before the docket judge on 2 March 2006, directions were given for the preparation of the proceeding for final hearing and 19 May 2006 was fixed as the date for hearing.  Mr Kemp’s motion was also fixed for hearing on the same date.

12                  It is not entirely clear why Mr Kemp did not seek to agitate his motion of 3 January 2006 at the directions hearing on 2 March 2006.  It may be, since he appears in person without any legal assistance, that he was unaware of the need to raise the question of interlocutory relief at an early stage. Whatever the reason, it appears that he made no application for interlocutory relief at that time and it was only by the second motion now before me, that he claimed interlocutory relief.

13                  In the interim, certain of the respondents filed a motion seeking summary dismissal of the proceeding on the ground that it was incompetent.  The docket judge also fixed that motion for hearing on 19 May 2006.

14                  The evidence in support of the motion of 27 April 2006 is an affidavit sworn on that date by Mr Kemp in which he explains that the order sought on the motion was intended to be sought on 2 March 2006 to stop works and building on an Aboriginal sacred site.  The works in question, which are described by Mr Kemp as ‘capital works’ and which are the works referred to in Schedule 8 of the agreement, have been substantially completed. The works include a camping ground, toilet block, beach showers, vehicle access and parking, picnic tables and associated signage. 

15                  The works that have been completed include signage as follows:

(a)        Campervan information;

(b)        ‘No Camping’ folding sign;

(c)        Signage for toilet;

(d)        Signage for vehicle access;

(e)        Regulatory and general signs;

(f)         Sign regarding gazetted Aboriginal place under the National Parks and Wildlife Act.

No further signage is intended to be erected in the Saltwater National Park before 30 June 2006 and it is not intended to erect a plaque, as contemplated by Schedule 8, until June or July 2006. 

16                  There are still some minor works that need to be completed to the toilet block, which are essential for public hygiene, public safety and occupational health and safety reasons.  Those works are scheduled to be carried out in the next four weeks.  Mr Kemp accepts that, having regard to the state of the works that have already been completed, the completion of the works necessary for public hygiene, public safety and occupational health and safety purposes should not be hindered. 

17                  Mr Kemp became aware only today and now accepts that the majority of the works contemplated by the agreement has now been completed. Nevertheless, he expresses his concern that there is a risk that some other work might be done that would be inconsistent with the native title rights that he seeks to establish in relation to the area in question.  However, he is unable to be specific about that matter and acknowledges the difficulty that a citizen has in knowing what the executive government has in mind. 

18                  Be that as it may, in the absence of evidence of some threat, I am not persuaded that there is any appreciable or relevant risk that work might be done that is inconsistent with the native title claims that Mr Kemp seeks to assert prior to the time when the matter is fixed for final hearing.  Even if there were, I have considerable difficulty in seeing what equity there is vested in Mr Kemp to restrain the work. It may well be that he has rights, or is able to establish native title rights, that may be recognised by the law of New South Wales or the law of Australia, such as would entitle him to restrain public works of the nature described in Schedule 8 of the indigenous land use agreement.

19                  At present, however, there is simply no evidence of the basis upon which Mr Kemp asserts such rights. More fundamentally, the only relief that is sought in the substantive proceeding is the setting aside under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the decision to register the agreement.  Mr Kemp has not demonstrated any basis for the proposition that the registration of the agreement has any relevant effect on Mr Kemp’s entitlement to restrain works of the nature in question.  Even if there had been no registration of the agreement Mr Kemp’s position would not be advanced so far as the relief he now seeks. That is to say, restraining the remaining work to be completed does not appear to me in any way in aid of the final relief that he seeks in the proceeding, of setting aside the decision to register the agreement.

20                  That difficulty may underlie the application for summary dismissal that has been brought by one of the respondents.  I do not think it is necessary for me to inquire into that matter. 

21                  I am not persuaded on the material before me that Mr Kemp is entitled to any interlocutory relief of the nature sought.  It follows, in my view that the motion should be dismissed.  However, rather than dispose of the matter, I propose to stand the motion over for hearing on 19 May 2006 with the other matters listed for hearing on that day.

Associate:

Dated:              16 May 2006