Federal Court of Australia
Saunders on behalf of the Bigambul People v State of Queensland (No 2) [2021] FCA 190
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant’s interlocutory application filed on 12 June 2020 seeking leave to amend the application for a determination of compensation be dismissed.
2. The applicant’s amended interlocutory application filed 19 June 2020 seeking that the Court make a request under s 83A of the Native Title Act 1993 (Cth) be dismissed.
3. The applicant’s application for a determination of compensation be struck out.
4. The respondents each file and serve any submissions as to costs (not exceeding five pages) by 4.30 pm on 18 March 2021.
5. The applicant file and serve any submissions as to costs (not exceeding five pages) by 4.30 pm on 25 March 2021.
6. The respondents each file and serve any submissions as to costs in reply (not exceeding one page) by 4.30 pm on 29 March 2021.
7. The question of costs will be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
RANGIAH J:
1 The principal proceeding is an application made on behalf of the Bigambul People for a determination of compensation pursuant to ss 50(2) and 61(1) of the Native Title Act 1993 (Cth) (NTA).
2 The State of Queensland has filed an interlocutory application seeking orders that the compensation application be struck out or summarily dismissed. The State contends that, contrary to s 61(5) of the NTA, the compensation application fails to contain prescribed information as it does not identify any “act” founding an entitlement to compensation, nor any “area covered by the application”.
3 In response, the applicant has filed two interlocutory applications. The first seeks that the Court make a request, pursuant to s 83A of the NTA, that the relevant State Minister conduct searches of the State’s records to identify interests in relevant land or waters. This, it is contended, would allow the applicant to identify compensable acts.
4 The applicant’s second interlocutory application seeks leave to amend the compensation application to identify particular compensable acts. The State opposes the application, arguing that the proposed amendments are prohibited under s 64(1) of the NTA as they would result in the inclusion of areas not covered by the original application.
5 The issues before the Court are:
(1) whether the compensation application in its current form is liable to be struck out;
(2) whether the applicant should be granted leave to amend the compensation application;
(3) whether the Court should make any request of the State Minister pursuant to s 83A(1) of the NTA.
6 I will describe the compensation application and its procedural history, before considering the parties’ submissions.
The original application for a determination of compensation
7 The Court has made determinations of native title in favour of the Bigambul People in Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447 (Bigambul Part A) and Doctor on behalf of the Bigambul People v State of Queensland [2017] FCA 716 (Bigambul Part B). The determinations cover an area of some 17,000 km2 in the vicinity of Goondiwindi in south-west Queensland.
8 On 20 December 2019, the applicant filed an application for a determination of compensation (the Original Application) in the form (Form 4) prescribed under reg 5(1)(d) of the Native Title (Federal Court) Regulations 1998 (Cth) (the NT(FC) Regulations).
9 Form 4 consists of Part A, which requires details of the claim, and Part B, which requires details of any legal representation and an address for service. Part A consists of three paragraphs. The first is a statement that the applicant seeks a determination of compensation under s 61(1) of the NTA. The second paragraph requires the applicant to state the basis upon which they are entitled to make the application. The third paragraph requires the applicant to complete a series of schedules identified as Schedules A to Q.
10 Schedule A of Form 4 requires insertion of the names or a description of the compensation claim group. In Sch A of the Original Application, the applicant states that the application is made on behalf of the Bigambul People. The Bigambul People are described as Aboriginal people who are descended from one or more of seven named apical ancestors. The application asserts that the applicant is authorised to bring the application by the significant Bigambul elders who are descended from those ancestors.
11 Schedule B of Form 4 requires information identifying the boundaries of the area covered by the application and any areas within those boundaries not covered by the application. In the Original Application, the applicant has attached Attachment B, which states that the compensation claim area “comprises all of the land, rivers, creeks and waterways contained within the external boundaries of” the Bigambul Part A and Part B determinations. Attachment B then identifies specific lot descriptions in the Part A and Part B determination areas. These appear to be the areas where non-exclusive native title rights and interests have been determined to exist.
12 Attachment B also states that the claim area includes a number of specified lots which were not dealt with in the Bigambul Part A and Part B determinations. These appear to be areas subject to previous exclusive possession acts which could not, pursuant to s 61A(2) of the NTA, be the subject of the previous native title determinations.
13 Attachment B indicates that the compensation claim area, “does not include any land, rivers, creeks and waterways subject to Exclusive Native Title, as determined in Bigambul Part A and Bigambul Part B”.
14 Schedule C of Form 4 requires a map showing the boundaries of the area covered by the application to be attached. In the Original Application, the applicant has attached Attachment C, which contains maps that depict the external boundaries of the Bigambul Part A and Part B determination areas and also depict the excluded areas of exclusive native title rights and interests.
15 In summary, the Original Application is expressed to cover all areas within the external boundaries of the Bigambul Part A and Part B determinations other than areas where the Bigambul People have been determined to hold exclusive native title rights and interests. The applicant asserts that there are over 11,000 lots within those areas.
16 Schedule D of Form 4 requires details and the results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application. In Sch D of the Original Application, the applicant provides the same information that is subsequently provided in Sch I.
17 It is unnecessary to describe Schs E to H and K to Q of the Original Application.
18 Schedule I of Form 4 requires:
Details of the act which it is claimed extinguished or affected native title rights and interests for which compensation is claimed, including:
(a) the government or other person that did the act and whether the act has been validated; and
(b) if the act has been validated, how this was done; and
(c) copies of:
(i) all searches of official title registers (such as the title register of crown lands and the land title register of the relevant State or Territory); and
(ii) all searches conducted with public bodies and authorities;
that identify existing or expired non-native title rights and interests in relation to the land or waters covered by the compensation application.
19 The applicant completed Sch I of the Original Application as follows:
As per the determination decision of Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447 (Bigambul Part A) and Doctor on behalf of the Bigambul People v State of Queensland [2017] FCA 716 (Bigambul Part B).
Updates to the determination will be provided, but due to the size and scale of this claim for compensation, including the cultural and spiritual loss in addition to the economic loss, this information will be collated over an extended period of time, which will be determined in due course and will be produced at a later date once expert and lay evidence has been provided.
The expert and lay evidence includes, but is not limited to, the following experts:
1. Valuation Expert;
2. Town Planning Expert;
3. Anthropological Expert;
4. Archaeological Expert; and
5. Lay evidence from Elders from the Bigambul People.
More information can be provided and labelled as “Attachment I”.
There is no “Attachment I” attached to the Original Application.
20 It may be seen that Sch I of the Original Application does not identify any acts which it is claimed extinguished or affected native title rights and interests for which compensation is claimed.
21 Schedule J of Form 4 asks for the details of the basis for the compensation application. Attachment J of the Original Application indicates that the applicant seeks between $9.9 billion and $10 billion for economic loss and between $5 billion and $15 billion for non-economic loss, but states that the claim will be refined as the number and type of impacts are determined through an assessment process.
22 On 4 March 2020, the State filed its application to strike out the compensation application pursuant to s 84C of the NTA or, alternatively, for summary dismissal of the compensation application pursuant to r 26.01 of the Federal Court Rules 2011 (Cth). The State’s application also seeks, in the alternative, orders pursuant to s 84D of the NTA that the applicant produce to the Court evidence that he is authorised to make the compensation application. The State does not presently press that aspect of its application, but has indicated that it may do so in the future.
23 Queensland South Native Title Services (QSNTS), the Bigambul Native Title Aboriginal Corporation RNTBC and four members of the Bigambul People (Anthony Turnbull, Regina Munn, Lilly Graham and Brenton Sefo Wallace) notified the Court in the prescribed form (Form 5) that they wanted to become parties to the compensation proceeding. On 30 April 2020, in Saunders on behalf of the Bigambul People v State of Queensland [2020] FCA 563, I held that QSNTS and the Bigambul RNTBC had become parties upon filing their Form 5s. I also ordered that the four individuals (the Indigenous respondents) be joined as parties to the proceeding.
24 QSNTS, the Bigambul RNTBC, the Indigenous respondents and various pastoral lease holders support the State’s interlocutory application. The applicant’s authorisation to make the compensation claim is contested by the RNTBC and the Indigenous respondents. As that issue may involve a large contest upon disputed questions of fact, it has been left aside until determination of the application for striking out or summary dismissal.
25 On 20 April 2020, the applicant filed an interlocutory application seeking that the Court exercise its power under s 83A of the NTA. The application as filed seeks that the Court request that the State Minister or, alternatively, the Registrar, conduct searches of various registers and records. The Registrar filed an interlocutory application on 15 May 2020 seeking leave to be heard, or, alternatively, to be joined as an intervener. The applicant then sought, and was granted, leave to amend the interlocutory application to delete any reference to the Registrar. In light of that development, the Registrar has not pursued her application.
26 The remaining relief sought under the applicant’s amended interlocutory application is, relevantly, as follows:
2. Pursuant to sections 83A(1) and 84(4) of the Native Title Act 1993 (Cth) the State Minister responsible for administering the Native Title Act 1993 (Cth) in the State of Queensland be requested to conduct such searches of the Respondent’s registers or other records in current or former interests in land or waters comprising the claim area identified in the Applicant’s Form 4 Application for Compensation (claim area) and report the results of such searches to the Court including:
a. For all lots held as freehold – the current title search of each lot, and the applicable deed of grant/s for each lot;
b. For all lots held as other than freehold – the historical title search/s applicable to lots;
c. Searches of and any registers or records held by the Respondent, department and/or body corporate wholly owned by the Respondent with respect to public work infrastructure constructed on Crown land within the claim area, as identified in the Applicant’s Form 4 Application for Compensation, commencing from 31 October 1975; and
3. The parties have leave to obtain copies of such search results from the Court.
27 On 12 June 2020, the applicant filed another interlocutory application, seeking leave to amend the Original Application.
The proposed amended compensation application
28 The applicant’s proposed amended compensation application (the Proposed Amended Application) first seeks to amend Sch D to describe a number of non-native title interests in the area covered by the application.
29 The Proposed Amended Application would also delete the original text of Sch I and instead attach a proposed “Attachment I”, which states:
The Applicant has conducted, amongst other searches, extensive searches of official title registers to identify the act(s) in issue. The results of the searches completed by the Applicant to date, and details of the act(s) that extinguished and/or affected native title rights and interests for which compensation is claimed, can be found in the spreadsheet below, which has been split into the following sections:
1. Identified Compensable Lot(s) and Act(s) within the claim area.
2. Crown reserve land, unallocated land and land subject to public works within the claim area.
a. It is noted that further disclosure with respect to these parcels of land is required in order to determine if they are subject to extinguishing acts.
3. Details of lots within the claim area where no searches were available.
The Applicant is not in a position to know the full extent of some of the acts that have extinguished and/or affected native title rights and interest for which compensation is claimed and further searches and/or disclosure from the State of Queensland may be required.
30 The proposed Attachment I attaches a Schedule in three parts. The Schedule has a number of column headings, including “Lot Plan”, “Lot Area”, “Claim Area”, “Classification”, “Gov Responsible”, “Validation Provision” and “EA”. The heading “EA” is an abbreviation of “Extinguishing Act”.
31 Part 1 of the Schedule has the heading, “Compensable Acts”. It identifies a number of specific lots under the column heading “Lot Plan”. The “Classification” of each act is described as either “Past Act”, “Previous Exclusive Possession OR Intermediate Period Act”, or “Future Act”. The Extinguishing Acts are described as “Lease” (of varying kinds), “Lease Extension”, “Freehold”, “Transfer”, “Subdivision—racecourse” and “Road License (Stock Route)”. The dates of the extinguishing acts range from 1979 to 2019. It is not apparent how the extinguishing acts are ordered, or if they are ordered at all.
32 Part 2 of the Schedule has the heading, “Discovery Required”. It identifies a number of other specific lots. The Extinguishing Acts are described as “Reserve” (either with or without a description of the purpose of the reserve), “Permit – Grazing – Reserve, Road, or Stock Route”, or “Unallocated State Land”. The dates of the extinguishing acts range from 1878 to 2018.
33 Part 3 of the Schedule has the heading, “Further Analysis Required”. It identifies five specific lots. The extinguishing acts are described as, “Previous title missing”, or “Unable to obtain prior dealing”.
34 It is unnecessary to describe the other proposed amendments.
35 The State, supported by QSNTS, the Indigenous respondents and the pastoral lease holders, opposes the grant of leave to amend. There was some dispute at the hearing about whether written submissions filed on behalf of the Indigenous respondents had been served upon the applicant. I understand the applicant to now concede that they were served and to not dispute that the submissions should be considered.
36 The submissions at the hearing were principally focussed upon the application for leave to amend the original compensation application.
The provisions of the NTA dealing with compensation
37 The provisions of the NTA which deal with compensation fall into three broad categories: those which create an entitlement to compensation; those which deal with applications for compensation; and those which deal with determinations of compensation. The interlocutory applications in the present case are directly concerned with provisions in the second category, but their determination is informed by provisions in the first and third categories.
38 In Northern Territory v Griffiths (2019) 364 ALR 208; [2019] HCA 7 (Griffiths), the plurality of the High Court observed:
[20] The scheme of the Native Title Act reflects the context in which it was enacted — it operates upon native title rights and interests defeasible at common law but substantially protected against extinguishment, from 31 October 1975, by the Racial Discrimination Act 1975 (Cth) and, in particular, s 10(1) of that Act.
…
[25] Not only is native title recognised and protected in accordance with the Native Title Act and not able to be extinguished contrary to the Native Title Act, but if native title is extinguished, then the Native Title Act provides for compensation.
[26] As the Preamble to the Native Title Act records, Aboriginal peoples and Torres Strait Islanders have been progressively dispossessed of their lands, largely without compensation, and the enactment of the Native Title Act was intended to rectify the consequences of past injustices. The provisions of the Native Title Act are intended to secure the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders and to ensure that they receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire. The Preamble goes on to state: “[j]ustice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms … must be provided to the holders of the native title”.
39 Divisions 2, 2A, 2B, 3 or 4 of Part 2 of the NTA, read together with the Native Title (Queensland) Act 1993 (Qld), confer an entitlement to compensation upon native title holders in particular circumstances. The circumstances may be summarised as follows:
(a) Division 2 provides for validation of “past acts” (as defined in s 228) that took place before 1 January 1994 and which would otherwise be invalid because of native title. Section 17 provides an entitlement to compensation if the past act is attributable to the Commonwealth, and s 20 provides an entitlement if the past act is attributable to a State or Territory.
(b) Division 2A provides for validation of “intermediate period acts” (as defined in s 232A), which took place between 1 January 1994 and 23 December 1996. Section 22D provides the entitlement to compensation if the intermediate period act is attributable to the Commonwealth, and s 22G provides an entitlement if it is attributable to a State or Territory.
(c) Division 2B provides for confirmation of past extinguishment of native title by certain valid or validated acts on or before 23 December 1996, either by “previous exclusive possession acts” (defined in s 23B) or by “previous non-exclusive possession acts” (defined in s 23F). They may be acts of the Commonwealth, or of a State or Territory which has passed parallel legislation: s 23I. The entitlement to compensation is provided for in s 23J.
(d) Division 3 deals with future acts (defined in s 233). The provisions providing an entitlement to compensation for particular categories of future acts are ss 24FA, 24GB, 24GD, 24GE, 24HA, 24ID, 24JAA, 24JB, 24KA, 24MD and 24NA.
(e) Division 4 refers to, “Other provisions relating to native title”. Relevantly, s 45 provides that if the Racial Discrimination Act 1975 (Cth) has the effect that compensation is payable to native title holders in respect of an act that validly affects native title to any extent, the compensation is to be determined in accordance with s 50 of the NTA.
40 Sections 17 and 20, which apply to compensation for past acts, provide examples of provisions conferring an entitlement to compensation. Those sections state, relevantly:
17 Entitlement to compensation
Extinguishment case
(1) If the act attributable to the Commonwealth is a category A past act or a category B past act, the native title holders are entitled to compensation for the act.
Non extinguishment case
(2) If it is any other past act, the native title holders are entitled to compensation for the act if:
(a) the native title concerned is to some extent in relation to an onshore place and the act could not have been validly done on the assumption that the native title holders instead held ordinary title to:
(i) any land concerned; and
(ii) the land adjoining, or surrounding, any waters concerned; or
(b) the native title concerned is to some extent in relation to an offshore place; or
(c) the native title concerned relates either to land or to waters and the similar compensable interest test is satisfied in relation to the act.
…
Who pays compensation
(4) The compensation is payable by the Commonwealth.
…
20 Entitlement to compensation
Compensation where validation
(1) If a law of a State or Territory validates a past act attributable to the State or Territory in accordance with section 19, the native title holders are entitled to compensation if they would be so entitled under subsection 17(1) or (2) on the assumption that section 17 applied to acts attributable to the State or Territory.
Compensation where no validation
(2) Native title holders are entitled to compensation for the past act attributable to a State or Territory that, at the time when the claim for compensation is determined, has not been validated by the State or Territory in accordance with section 19.
Recovery of compensation
(3) The native title holders may recover the compensation from the State or Territory.
...
41 It may be seen that s 17, and s 20 by its incorporation of s 17, provide that if a “past act” has been done, and certain other conditions are satisfied, “the native title holders are entitled to compensation for the act”. It is unnecessary to set out the provisions of Div 2A, Div 2B, Div 3 and Div 4 under which create an entitlement to compensation. It is enough to observe that those provisions (with immaterial exceptions) similarly provide that, “the native title holders are entitled to compensation for the act”.
42 Section 51(1) of the NTA explains that the entitlement to compensation “for the act” under Divs 2, 2A, 2B, 3 or 4 is, “an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests”.
43 Section 226(2) provides that an “act” includes:
(a) the making, amendment or repeal of any legislation;
(b) the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;
(c) the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;
(d) the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;
(e) the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;
(f) an act having any effect at common law or in equity.
44 Section 227 provides that 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”.
45 Section 61(1) of the NTA provides that three kinds of application may be made. They are a native title determination application, a revised native title determination application and a compensation application. A compensation application is described in s 61(1) as an application under s 50(2) for a determination of compensation.
46 Section 50(2) allows an application for a determination of compensation to be made to the Federal Court.
47 Sections 61(3), (4) and (5) set out requirements that applications, including compensation applications, must satisfy. Section 61(5) provides:
(5) An application must:
(a) be in the prescribed form; and
(b) be filed in the Federal Court; and
(c) contain such information in relation to the matters sought to be determined as is prescribed; and
(d) be accompanied by any prescribed documents and any prescribed fee.
48 The form and information described in s 61(5) are prescribed under reg 5 of the NT(FC) Regulations. A compensation application must be in Form 4 (reg 5(1)(d)) and must contain the information and be accompanied by the documents, “as mentioned in” Form 4 (reg 5(2)).
49 As has been indicated, Sch I of Form 4 requires, “Details of the act which it is claimed extinguished or affected native title rights and interests for which compensation is claimed...”. Sch B requires, “[i]nformation identifying the boundaries of…[t]he area covered by the application. Schedule C requires, “[a] map of the boundaries of the area covered by the application”.
50 Section 62(1)(b) of the NTA requires that a native title determination that was authorised by a claim group must contain the details specified in s 62(2). The effect of s 62(3)(b) is to make s 62(2) also applicable to a compensation application that was authorised by a compensation claim group (such as the Original Application). Section 62(2)(a) requires that an authorised compensation application contain information, whether by physical description or otherwise, that enables the boundaries of the area covered by the application, and any areas within those boundaries that are not covered by the application, to be identified. Section 62(2)(b) requires a map showing the boundaries of the area covered by the application.
Determinations of compensation
51 Section 81 confers jurisdiction upon the Federal Court to hear and determine applications that relate to native title, including applications for a determination of compensation.
52 Division 5 of Pt 2 of the NTA has the heading, “Determination of compensation for acts affecting native title etc”, and consists of ss 48 to 54.
53 Section 48 provides that compensation payable under Divs 2, 2A, 2B, 3 or 4 in relation to an act is only payable in accordance with Div 5. Section 50(1) provides that a determination of compensation may only be made in accordance with Div 5.
54 Section 51(1)–(4) deals with the quantification of compensation, and s 51A deals with limits upon the compensation payable. In Griffiths, the plurality of the High Court held at [50] that there are two components of compensation, namely the economic value and the non-economic value of the rights and interests affected.
55 The High Court held, at [70], [74] and [90]-[91], that s 51A equates the economic value of full exclusive native title to the economic value of a freehold interest in land. The Court observed that assessing the economic value first requires identification of the native title rights and interests in question, and then an evaluative judgment of the percentage reduction from full exclusive native title and the application of that percentage reduction to the full freehold value of the relevant land. At [96], it was held that the economic valuation of rights and interests is, “essentially an objective question of how much a willing but not anxious purchaser would be prepared to pay to a willing but not anxious vendor to obtain the latter’s assent to their extinguishment”, or other detrimental effect.
56 The High Court held at [154] that, “compensation for the non-economic effect of compensable acts is compensation for that aspect of the value of land to native title holders which is inherent in the thing that has been lost, diminished, impaired or otherwise affected by the compensable acts”. The compensation is for, “a particular effect of a compensable act”, and that effect may be described as “cultural loss”.
57 The High Court referred at [200] to findings made by the trial judge as to three particular considerations of significance to the assessment of compensation for cultural loss: the construction of water tanks on the path of a dreaming track, which had caused significant distress and concern; the extent to which certain of the compensable acts affected not only the precise geographical area of the lot on which the act took place but, in a more general way, related areas (which was described as “collateral detrimental effect”); and the fact that each of the compensable acts to some degree “chipped away” at the geographical area resulting in incremental detriment to the enjoyment of the native title rights and interests over the entire area leading to a collective diminution of the claim group’s cultural and spiritual connection with the land and a sense of failed responsibility, under the traditional laws and customs, to have cared for and looked after the land.
58 The High Court noted at [203] that the trial judge had illustrated the significance of collateral detriment effect by referring to the effect upon the capacity of the compensation claim group to conduct ceremonial and spiritual activities upon an area (a ritual ground) adjacent to areas where compensable acts were done. The High Court said that his Honour had sought to explain why he was taking account of the effects of compensable acts on the ritual ground, “as diminishing the cultural and spiritual connection of the claim group to those grounds when the acts did not directly affect them and their use had already been significantly impaired by an earlier, non-compensable act”. The High Court observed:
[204] The answer his Honour gave was that an impairment of an Aboriginal person’s spiritual connection to land is not to be understood by reference to what occurs on a particular lot or lots. It is to be understood more generally by reference to his or her feelings about loss of connection with country, which can be incremental. It was for those reasons that his Honour referred to the ritual ground to reinforce the fact that it would be wrong to consider each act in isolation. Each act affected native title rights and interests with respect to a particular piece of land. But each act was also to be understood by reference to the whole of the area over which the relevant rights and interests had been claimed. His Honour accepted that account must be taken of the extent to which spiritual attachment to land has already been impaired, but said that a further sense of loss “which does not specifically relate to an act or parcel of land” may be felt.
[205] The earlier acts, which were not compensable, punched holes in what could be likened to a single large painting — a single and coherent pattern of belief in relation to a far wider area of land. The subsequent compensable acts punched further holes in separate parts of the one painting, and the damage done was not to be measured by reference to the holes created by the compensable acts alone, but by reference to the effect of those holes in the context of the wider area: for example, an area which, as the trial judge found, remained important to the Ngaliwurru and Nungali Peoples despite the fact that the area was no longer able to be used as a ritual ground.
[206] This analysis reinforced what his Honour had said earlier: the consequences of acts can be incremental and cumulative; the people, the ancestral spirits, the land and everything on it are “organic parts of one indissoluble whole”; the effects on the sense of connection are not to be understood as referable to individual blocks of land but understood by the “pervasiveness of Dreaming”; the effects are upon an Aboriginal person’s feelings, in the sense of his or her engagement with the Dreamings; an act can have an adverse effect by physically damaging a sacred site, but it can also affect a person’s perception of and engagement with the Dreamings because the Dreamings are not site specific but run through a larger area of the land; and as a person’s connection with country carries with it an obligation to care for it, there is a resulting sense of failed responsibility when it is damaged or affected in a way which cuts through the Dreamings.
59 Later, at [216], the High Court held that the submissions of the Commonwealth and Northern Territory proceeded from the incorrect basis that, in assessing the effect of a compensable act, s 51(1) of the NTA imposes specific temporal and physical limits which do not extend to collateral detrimental effects. The High Court said:
[217] Section 51(1) provides for compensation on just terms for any loss, diminution, impairment or other effect of the act on native title rights and interests. The inquiries will vary according to the compensable act, the identity of the native title holders, the native title holders’ connection with the land or waters by their laws and customs and the effect of the compensable acts on that connection. Thus, what might be an appropriate award of compensation will vary according to the results of those separate but inter-related inquiries. So, for example, as noted earlier, a sense of loss of connection to country resulting from the loss, diminution, impairment or other effect of an act on native title rights and interests in areas where land has been developed may prove less than the sense of loss of connection to country in relation to native title rights and interests in remote, less developed, areas. That is because, depending on the facts of the case, the sense of connection to country may have declined in developed areas (with higher economic value) as a result of encroaching developments before the act of extinguishment or other compensable diminishment. Where that is so, the amount to be awarded for non-economic loss will be less.
[218] The court’s task of assessment under s 51(1) is necessarily undertaken in the particular context of the Native Title Act, the particular compensable acts and the evidence as a whole. As the trial judge found, s 51(1) does not in its terms require that the detrimental consequence directly arise from the compensable act. The task required by s 51(1), as the sub-section itself recognises, requires a number of separate but inter-related steps: identification of the compensable acts; identification of the native title holders’ connection with the land or waters by their laws and customs; and then consideration of the particular and inter-related effects of the compensable acts on that connection.
[219] In considering, and analysing, each of those separate but inter-related steps, the trial judge made extensive findings. Each act affected native title rights and interests with respect to a particular piece of land. But each act was also to be understood by reference to the whole of the area over which the relevant rights and interests had been claimed. As was explained earlier, each act put a hole in what could be likened to a single large painting — a single and coherent pattern of belief in relation to a far wider area of land. It was as if a series of holes was punched in separate parts of the one painting. The damage done was not to be measured by reference to the hole, or any one hole, but by reference to the entire work. Given those findings, it would be wrong to consider each compensable act in these appeals in isolation.
60 The High Court then continued:
[223] The use of, and reference to, the three particular considerations was to reinforce what his Honour had said earlier: the consequences of acts can be incremental and cumulative; the people, the ancestral spirits, the land and everything on it are “organic parts of one indissoluble whole”; the effects on the sense of connection are not to be understood as referable to individual blocks of land but understood by the “pervasiveness of Dreaming”; the effects are upon an Aboriginal person’s feelings, in the sense of a person’s engagement with the Dreamings; an act can have an adverse effect by physically damaging a sacred site, but it can also affect a person’s perception of and engagement with the Dreamings because the Dreamings are not site specific but run through a larger area of the land; and as a person’s connection with country carries with it an obligation to care for it, there is a resulting sense of failed responsibility when it is damaged or affected in a way which cuts through Dreamings. And it must be recalled that the trial judge did so in the context of the area of land that remained available to the Claim Group to exercise and enjoy their traditional laws and customs on country relative to the area the subject of the compensable acts.
[224] That reasoning of the trial judge did not reveal legal error. It was the task required by s 51(1) of the Native Title Act: identification of the compensable acts; identification of the native title holders’ connection with the land or waters by their laws and customs; and then consideration of the particular and inter-related effects of the compensable acts on that connection. As s 51(1) itself recognises, the steps are separate but inter-related.
[225] Thus, the Full Court were right to reject the specific complaints made by the Commonwealth and the Northern Territory that the trial judge was wrong to give any weight to the second and third considerations — the extent to which the compensable acts affected not only the precise geographical area of the lot on which the act took place, and the fact that each of the compensable acts to some degree “chipped away” at the geographical area resulting in incremental detriment to the enjoyment of the native title rights and interests over the entire area leading to a collective diminution of the Claim Group’s cultural and spiritual connection with the land and a sense of failed responsibility, under the traditional laws and customs, to have cared for and looked after the land.
[226] Contrary to the submissions of the Commonwealth and the Northern Territory, the trial judge would have been wrong not to take account of these matters. That is so given the nature and extent of the collateral detrimental effects of the compensable acts found by the trial judge. Each effect was found by the trial judge to be “by the act”. Each effect was, in a practical sense, caused by the compensable act. A failure to take account of those effects in assessing the compensation claim would have ignored critical aspects of those findings — critical parts of the overall picture — and resulted in legal error.
61 It may be seen from Griffiths that determination of the economic value of the native title rights and interests extinguished or otherwise affected by an act is conducted by reference to the value of a freehold interest in the area of land in relation to which the affected rights and interests exist or existed. An assessment of the value of economic loss therefore requires identification of the relevant area.
62 It may also be seen from Griffiths that compensation for non-economic loss is assessed by reference to the direct effects of an act upon the enjoyment of native title rights and interests in the area where the act is done and, in addition, collateral detrimental effects upon enjoyment of rights and interests in broader areas of country. Such collateral detrimental effects may be, for example, a sense of loss of connection to broader areas. However, the High Court did not suggest that compensation is payable in relation to an area where an act has no effect upon native title rights and interests. As is the case in respect of determination of the economic value of the affected rights and interests, determination of non-economic value requires identification of the area in which native title rights and interests are affected, directly or collaterally.
Whether the Original Application is liable to be struck out
63 The State’s interlocutory application seeks orders striking out or summarily dismissing the Original Application. As will be seen, it is only necessary to consider the former.
64 Section 84C(1) of the NTA provides, relevantly:
Strike out application
(1) If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications)…a party to the proceedings may at any time apply to the Federal Court to strike out the application.
Note: The main application may still be amended even after a strike-out application is filed.
65 An application may be made under s 84C(1) to strike out an application which fails to comply with the requirement of s 61(5)(c) that the application contain prescribed information. It is not clear from the face of s 84C(1) whether the Court has a discretion to decline to strike out a non-compliant application. However, as the note to s 84C(1) makes clear, an application may be amended to bring it into compliance even after a strike out application is filed.
66 In Williams v Grant [2004] FCAFC 178, the Full Court held:
[48] Section 84C only applies to applications which do not comply with ss 61, 61A and 62. However, an application under s 84C, if successful, has the very serious consequence that the native title application is struck out. Such a result is akin to a court proceeding being summarily dismissed, or at least dismissed before any hearing on the merits. No court proceeding is summarily dismissed except in a very clear case: Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129.
[49] Applications for native title are brought by representatives of the native title claim group. The dismissal of an application because, for example, the applicant has not been authorised means the dismissal of the native title claim group’s claim. The repercussions, therefore, are far reaching. I see no reason why an application to strike out a native title claim under s 84C should be treated any differently to any other application to dismiss a claim summarily. The power should be exercised sparingly and with caution, and only when the Court is satisfied that the moving party has made out a clear case that the applicant has not complied with the relevant section and cannot, by amending the application, comply. Section 84C assumes that a party might respond to a strike out application by amending the claim to comply with the requirements of the Act. A claim can be amended without obtaining leave.
67 While Williams v Grant was concerned with an application for a determination of native title, these passages are also relevant to an application for a determination of compensation. The observations made about amendment of an application must, however, be qualified by reference to s 64(1), which requires that an amendment must not result in the inclusion of any area not covered by the original application. That provision has particular relevance to this matter.
68 The State’s principal contention is that the Original Application fails to identify any act which is alleged to have affected native title rights and interests and, therefore, does not contain prescribed information required by Sch I of Form 4. An extension of the State’s argument is that Schs B and C require identification of the, “area covered by the application”, which area must be identified by reference to the effects of an identified act; and as the application does not identify any act, it does not identify any area covered by the application. The State argues that, for these reasons, the Original Application fails to comply with s 61(5)(c) and should be struck out. Since the map required by Sch C depends upon the area identified in Sch B, it is convenient to generally refer only to Sch B in the remainder of these reasons.
69 The applicant concedes that the Original Application does not identify any act. The applicant submits, however, that Sch B of the Original Application expressly identifies the area covered by the compensation application. Whether Sch B identifies any area covered by the application is ultimately critical, not only to whether the Original Application complies with s 61(5)(c), but also to whether leave to amend may be granted.
70 It is necessary to examine whether the NTA or NT(FC) Regulations require that an application for compensation identify an act and an area, and then to examine whether the Original Application identifies any such act and area.
71 What is required in an application must be considered in the context of that which is applied for. It is, therefore, appropriate to commence by considering whether a determination of compensation requires identification of an act and an area.
Does a determination of compensation require identification of an act?
72 Section 61(1) of the NTA allows a “compensation application” to be made to the Federal Court. An application of that kind is more fully described in the provision as an, “application under s 50(2) for a determination of compensation”. The expression “determination of compensation” is not defined in the NTA. However, a determination of compensation must be a determination of whether compensation is payable, how much is payable, by whom it is payable and to whom it is payable.
73 A determination of whether, and how much, compensation is payable must begin with consideration of the provisions of Divs 2, 2A, 2B, 3 and 4 of the NTA which confer an entitlement to compensation. Those provisions (with immaterial exceptions) state that, “the native title holders are entitled to compensation for the act” (emphasis added). Section 51(1) explains that, more particularly, the native title holders’ entitlement to compensation “for the act”, is to compensation, “for any loss, diminution, impairment or other effect of the act on their native title rights and interests” (emphasis added).
74 The central premise underpinning the NTA’s compensation scheme is the doing of an act that affects native title rights and interests. An act, pursuant to s 227, “affects” native title rights and interests if the act extinguishes or is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. As the High Court observed in Griffiths at [43], “the entitlement to compensation is for the ‘act’ itself”; and, at [46], “[t]he act and the effect of the act must be considered”. A determination of whether compensation is payable, and in what amount, depends, therefore, upon identification of an act that has adversely affected native title rights and interests (a “compensable act”).
75 In addition, identification of a compensable act is necessary for the identification of the entity or person to whom the act is attributable in order to determine by whom compensation is payable.
Does a determination of compensation require identification of an area?
76 It is also necessary to consider whether a determination of compensation requires identification of an area of land or waters.
77 An act that affects native title rights and interests is necessarily done in relation to an area of land or waters. Section 223 defines “native title” as communal, group or individual rights and interests, “in relation to land or waters”. Section 225 provides that a determination of native title is a determination whether or not native title exists, “in relation to a particular area…of land or waters”. Under s 13(2), the Federal Court cannot make a determination of compensation, without making, or having previously made, a determination of native title, “in relation to the whole or part of the area concerned”. The definitions of “past act” in s 228, “intermediate period act” in s 232A and “future act” in s 233 require an act, “in relation to land or waters”, or, “in relation to particular land or waters”.
78 It may be seen that an act that affects native title rights and interests is one that is done in relation to an area of land or waters. As the High Court made clear in Griffiths, an assessment of the economic and non-economic value of the native title rights and interests affected by a compensable act is made by reference to the area or areas in which rights and interests are or have been affected: see, for example, [86]–[91], [217]–[219]. Just as a determination of compensation depends upon identification of an act that affects native title rights and interests, a determination of compensation depends upon identification of an area in relation to which rights and interests are or have been affected.
Does an application for compensation require identification of an act and an area?
79 Since a determination of compensation requires identification of an act and an area, it can be expected that an application for a determination of compensation would require identification of the relevant act and area.
80 The necessity for an application for a determination of compensation to identify an area is expressly recognised by provisions of the NTA dealing with one of the two types of compensation application that may be made. Under s 61(1), a compensation application may be made by either a registered native title body corporate (RNTBC), or a person or persons authorised by all the persons who claim to be entitled to the compensation. Section 62(2)(a)(i) (via s 62(1)(b) and (3)(b)) requires an authorised compensation application (but not one made by an RNTBC) to contain information that enables, “the boundaries of…the area covered by the application… to be identified”. Sub-paragraphs (c),(d),(e),(f),(g),(ga) and (h) of s 62(2) also require an authorised application to include information in relation to, “the area covered by the application”, or “the area”, or “the land or waters”.
81 In contrast, the NTA does not expressly require a compensation application made by a RNTBC to identify the area covered by the application. Further, the NTA does not expressly require that either type of compensation application identify any compensable act. If these are gaps in the legislation, the gaps are filled by the requirement of s 61(5)(c) that a compensation application contain such information in relation to the matters sought to be determined as is prescribed, and by the requirements of the prescribed form.
82 Form 4 applies to all compensation applications, whether brought by RNTBCs or authorised persons. Regulation 5(2) of the NT(FC) Regulations requires that an application contain the information, “as mentioned in”, Form 4. The Schedules within Form 4 mention and require inclusion of each item of information listed in s 62(2)(a)–(h), as well as other information.
83 Schedule B of Form 4 requires the inclusion of information identifying, “the boundaries of…the area covered by the application”, as well as, “any areas within those boundaries that are not covered by the application”. Identification of the boundaries of an area will necessarily identify the area. Therefore, Sch B requires identification of an area, namely “the area covered by the application”.
84 Schedule I of Form 4 requires the inclusion of, “Details of the act which it is claimed extinguished or affected native title rights and interests for which compensation is claimed…”. In this way, Schedule I expressly requires identification of a compensable act.
85 Although the singular noun, “act”, is used in provisions such as ss 17, 20, 48 and 51 of the NTA, and although the singular noun, “area”, is used in provisions such as ss 62 and 66, it is apparent that a single application may seek compensation for the effects of more than one act, in more than one area: see s 23(b) of the Acts Interpretation Act 1901 (Cth). Schedule I must be understood as requiring details of the relevant “act or acts”, and Sch B as requiring information identifying the “boundaries of the area or areas” covered by the application. An application for a determination of compensation may range from seeking compensation for the effects of a single act in a single area, to seeking compensation for the effects of many acts in multiple areas. Where there are multiple separate areas, there will be multiple boundaries of those areas. Although I propose to generally refer to “an act” and “an area”, these references may be taken to also refer to multiple acts and multiple areas.
Whether Schs B, C and I of Form 4 are consistent with the NTA
86 The applicant has not submitted that Schs B, C and I of Form 4 are inconsistent with the NTA and invalid. However, it is relevant to consider the role and purpose of the information required under the Schedules in the broader scheme of the compensation provisions of the NTA.
87 An important purpose of Schs B, C and I of Form 4 is to enable the Native Title Registrar (the Registrar) to identify, and then notify, the persons and entities who have relevant interests in the area covered by the application. The NTA does not require service of applications made under s 61. Instead, s 63 requires the Chief Executive Officer of the Federal Court to give a copy of the application and any accompanying affidavits and prescribed documents to the Registrar.
88 Sections 66(2) and 66(3)(c) then require the Registrar to give the documents to the relevant State or Territory Minister if, “any of the area covered by the application is within the jurisdictional limits of a State or Territory”. The State or Territory Minister is, pursuant to s 84(4), a party unless they give the Federal Court notice to the contrary. Section 66(2A) requires the Registrar to give the documents to the relevant representative bodies, “for the area covered by the application”.
89 Unless a State or Territory Minister applies to strike out an application (see s 66(4)), the Registrar is also required, under s 66(3)(a), to give notice containing details of the application to seven categories of persons or entities. The categories are:
(i) any registered native title claimant in relation to any of the area covered by the application; and
(ii) any registered native title body corporate in relation to any of the area covered by the application; and
(iii) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and
(iv) subject to subsection (5), any person who when the notice is given, holds a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory; and
(v) the Commonwealth Minister; and
(vi) any local government body for any of the area covered by the application; and
(vii) if the Registrar considers it appropriate in relation to the person—any person whose interests may be affected by a determination in relation to the application; and…
90 Apart from the Commonwealth Minister, the identities of the relevant persons or entities who are to be notified by the Registrar will vary from application to application. Their identities are ascertained by reference to their connection with “the area covered by the application”, or whether their interests may be affected by, “a determination in relation to the application”. An application for compensation must, therefore, identify an “area covered by the application” in order to allow the Registrar to carry out the notification obligations arising under s 66(2), (2A) and (3). The identification of a compensable act will also assist the Registrar to determine all the persons and entities whose interests may be affected by a determination, since under ss 24JAA(9), 24KA(6), 24MD(4) and 24NA(7), the Commonwealth, States and Territories may enact laws providing that another person pay the compensation determined.
91 Section 66(3)(d) requires that the Registrar also notify the public of a compensation application. That provision is aimed at alerting persons who hold interests that may be affected by the determination that is applied for other than those mentioned in s 66(2), (2A) and (3).
92 Section 84(3) provides that the parties to the proceeding include persons:
(a) who are covered by any of s 66(3)(a)(i) to (vi);
(b) who claim to hold native title in relation to land or waters in the area covered by the application;
(c) whose interests may be affected by a determination;
and who notify the Federal Court that they want to be a party.
93 The purpose of the Registrar’s notification obligations is to allow the persons or entities described in s 66(2), (2A) and (3) and others whose interests may be affected by a determination to become aware of the application and have the opportunity to become parties: Bropho v Western Australia (2000) 96 FCR 453 at [17]. Correspondingly, the requirements of Schs B, C and I of Form 4 to identify a compensable act and area covered by the application are designed to allow the Registrar to identify the persons and entities to be notified, and to allow those who are notified to understand whether their interests may be affected and make an informed decision as to whether to become parties. In this way, the NTA and the NT(FC) Regulations observe a basic requirement of natural justice that a person whose interests may be affected by a legal proceeding should be given a reasonable opportunity to be heard: see Bropho v Western Australia at [17]; WMC Resources Ltd v Lane (Native Title Registrar) (1997) 73 FCR 366 at 375.
94 Another purpose of Schs B, C and I of Form 4 is to inform the Federal Court of the act alleged to affect native title rights and interests and the area covered by the application. The identification of those matters is, as I have sought to emphasise, essential for the making of a determination of compensation.
95 Accordingly, the requirements of Sch B of Form 4 for information identifying the boundaries of the area covered by the application, and of Sch I for identification of a compensable act, are consistent with the scheme of the compensation provisions. In any event, for a compensation application authorised by a compensation claim group (such as the Original Application), identification of the area covered by the application is expressly required under s 62(2) of the NTA.
96 Having determined that a compensation application must identify a compensable act and an area covered by the application, the next question is whether or not the Original Application does so.
Does the Original Application identify any compensable act and any area covered by the application?
97 In the Original Application, Sch I does no more than refer to the Bigambul Part A and Part B determinations and state that more information can be provided. The Original Application simply fails to identify any act which is alleged to have extinguished or otherwise affected native title rights and interests.
98 I will leave aside consideration of whether the Original Application fails to comply with the requirement of Sch B of providing information identifying the boundaries of “the area covered by the application” until later in these reasons, as that is an issue that falls for detailed consideration in the context of the application for leave to amend the Original Application.
99 For the present, it is enough to conclude that the Original Application is liable to be struck out pursuant to s 84C(1) as it fails to identify any compensable act, and therefore fails to comply with the requirement of s 61(5)(c) that the application contain prescribed information. I will proceed to consider whether the Original Application can be saved by amendment.
Whether the application for leave to amend the Original Application can be granted
100 The applicant applies for leave to amend the Original Application in accordance with the Proposed Amended Application. The amendments would, relevantly, specify a number of acts that are alleged to affect native title rights and interests. The amendments would cure the defect of failure to identify any compensable act.
101 The application for leave to amend is opposed by the State on the basis that the proposed amendments would offend s 64(1). That section provides:
(1) An amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application.
102 When s 64(1) refers to “an application”, it refers to each kind of application that may be made under s 61(1), namely a native title determination application, a revised native title determination application and a compensation application.
103 It has been held that a purpose of s 64(1) is to facilitate certainty among those who hold interests in a relevant area that may be affected by the determination of an application: Kogolo v State of Western Australia (2000) 102 FCR 38 at [15]; De Rose v State of South Australia [2002] FCA 1342 at [233]. Section 64(1) was introduced into the NTA by the Native Title Amendment Act 1998 (Cth). The Explanatory Memorandum for the Native Title Amendment Bill 1996 (Cth) stated that, “[a]pplicants wishing to claim an additional area may make a new claim”, but did not explain the rationale for the prohibition upon amendment of existing claims to include additional areas. It seems likely that s 64(1) has purposes beyond facilitating certainty for those who hold interests in an area, perhaps to do with ensuring that the claim in respect of the whole area is authorised or avoiding a further round of the notification process for additional persons or entities, but it is not clear as to precisely what such other purposes may be.
The parties’ submissions concerning leave to amend
104 The State submits that the area of land or waters “covered by the original application” for the purposes of s 64(1) must be, “commensurate with the area covered by the asserted compensable act or acts”. The State argues that “the area covered by the application” must be identified by reference to the compensable act and its alleged effects upon native title rights and interests in particular areas, not by mere assertion in the application as to the area covered. The State argues that as the Original Application fails to identify any compensable act, there is no area commensurate with any act and, therefore, no area covered by the Original Application. Accordingly, any amendment that would now identify compensable acts would result in the inclusion of areas not covered by the Original Application.
105 In response, the applicant submits that Sch B of the Original Application expressly states that the area covered is the whole of the areas within the external boundaries of Bigambul Part A and Part B determinations, other than areas of exclusive native title rights and interests. The applicant argues that, therefore, the inclusion of specific compensable acts covering areas within those boundaries would not result in the inclusion of any new areas.
106 In essence, the applicant contends that, for the purposes of s 64(1), “the area…covered by the original application”, is whatever area is asserted in Sch B of Form 4 to be covered by the compensation application; whereas the State submits that the phrase refers to the area in which native title rights and interests are alleged to be affected by an act identified in Schedule I of Form 4.
Consideration of the competing constructions of the phrase, “the area covered by the application”
107 Before considering the submissions, some observations should be made about the relationship between a compensation application and a determination of native title. As a matter of practicality, a determination of native title will usually, but not necessarily, have been made before an application for compensation is brought. In a compensation application, the area in which an applicant alleges that native title rights and interests are affected by an act will not necessarily coincide precisely with the area in which native title has been determined to exist. First, it may be that that a compensable act is alleged to only affect native title rights and interests within a part of the area. Second, a claim for compensation may be made in respect of areas where native title rights and interests have been extinguished. Third, an applicant may claim compensation in respect of areas that were omitted from the scope of the application for a determination of native title.
108 An application for compensation may, therefore, be made in relation to a combination of areas that have and have not already been the subject of a native title determination application. Section 13(2) provides that if the Federal Court is making a determination of compensation and an approved determination of native title has not previously been made in relation to the whole or part of “the area concerned”, the Court must also make a current determination of native title in relation to the whole or the part of the area. I will refer to the totality of the areas in relation to which the Court has made or must make a determination of native title in the course of determining a compensation claim as “the native title determination area”.
109 The Original Application does not identify any compensable acts. The question to be determined is whether, contrary to s 64(1) of the NTA, amendment to include some compensable acts would, “result in the inclusion of any area of land or waters that was not covered by the original application”. The answer depends upon the proper construction of the phrase, “the area covered by the application”, in Sch B of Form 4 and in the NTA.
110 Schedule B of the Original Application asserts that “the area covered by the application” comprises all the land, rivers, creeks and waterways contained within the external boundaries of the Bigambul Part A and Part B determinations, other than areas where it has been determined that there are exclusive rights and interests. The applicant is correct to submit that the Original Application literally asserts an “area covered by the application”. However, that does not necessarily answer the State’s argument, which relies upon a construction of Sch B inconsistent with its literal meaning.
111 Section 64(1) of the NTA requires determination of what areas are “not covered by the original application”. Section 62(2)(a)(i) (taken with s 62(1)(b) and (3)(b)), provides that an authorised native title determination application and an authorised compensation application must contain information that enables the boundaries of “the area covered by the application” to be identified. These are cognate provisions and should be construed consistently.
112 The requirement of Sch B of Form 4 for information that enables the boundaries of “the area covered by the application” to be identified must take its meaning from the same requirement in s 62(2)(a)(i). That is at least because s 13(1) of the Legislation Act 2003 (Cth) provides that, subject to any contrary intention, expressions used in a legislative instrument have the same meaning as, and are to be read and construed as subject to, the enabling legislation. The enabling legislation is s 215 of the NTA. The NT(FC) Regulations are a legislative instrument within ss 8(5) and 10 of the Legislation Act. It has not been submitted that any contrary intention is demonstrable.
113 It may be noted that ss 24FB, 24FC, 62, 64, 66, 66A, 84, 87A, 94B, 94C, 190A and 190E of the NTA all use the phrase, “the area covered by the application”, or the materially indistinguishable phrase, “the area of land or waters covered by the original application”. It may be assumed that the phrase is intended to have a consistent meaning throughout the NTA: see, for example, WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [106]. In addition, a number of these provisions apply, or may apply, to each kind of application that may be made under s 61(1), so that the phrase may be assumed to have the same meaning in relation to a native title determination application, a revised native title determination application and a compensation application.
114 It is therefore necessary to construe s 62(2)(a)(i) and the other provisions of the NTA that use the same phrase in order to construe Sch B of Form 4 and to determine whether Sch B of the Original Application identifies any area covered by the application.
115 A statutory provision must be construed by reference to its language, context and purpose: see, for example, SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]. For the reasons that follow, the applicant’s construction of phrase, “the area covered by the application”, is inconsistent with the language, context and purpose of s 62(2)(a)(i) of the NTA.
116 The applicant’s construction is that “the area covered by the application” in s 62(2)(a)(i) is whatever area the application asserts is the area covered by the application. It is necessary to examine the consequences that would flow if that is the correct construction.
117 It seems self-evident that the “area covered by the application” will not, in a compensation application, necessarily be the whole of the native title determination area (that is, the totality of the areas that have already been, and those that must be, the subject of a native title determination). An “act”, within s 226(2) of the NTA, may range from construction of a piece of infrastructure on a small part of the area to the enactment of legislation applying to the whole of the area. While in some cases, an act may affect the enjoyment of native title rights and interests over the whole area, that is not necessarily so. Otherwise, the requirement of s 62(2)(a)(ii) to identify, “any areas within those boundaries that are not covered by the application”, would be redundant. The High Court’s discussion in Griffiths at [197]–[226] cannot be interpreted as suggesting that an act will necessarily affect native title rights and interests over the whole area. As the High Court observed at [46], s 51(1) of the NTA, “recognises that the consequences of a compensable act are not and cannot be uniform”. It follows that in an application for compensation, the area “covered by” the application may be smaller than the whole native title determination area.
118 If the applicant is correct that, “the area covered by the application”, is merely the area asserted by the application to be covered, that would mean that even if, in truth, the applicant alleges that a compensable act affects native title rights and interests in only a small part of the native title determination area, the application may legitimately assert that, “the area covered by the application”, is the whole of the area. The limitation upon possible future amendments imposed by 64(1) would provide an incentive for applicants to assert the widest possible coverage, namely the whole of the native title determination area, in every compensation application. The applicant’s construction would mean that such an assertion is permissible even though inconsistent with the truth and substance of what is being applied for.
119 The phrase, “the area covered by the application”, in s 62(2)(a)(i) is a connecting phrase. The phrase refers to, and requires, a connection between an area of land or waters and an application. Section 62(2)(a)(i) applies to an application for an authorised determination of native title and an authorised determination of compensation. It is the determination and consequential order of the Federal Court, rather than the application, that will ultimately have operative effect. The connection envisaged, therefore, is not merely between the application and an area, but also between the determination that is applied for and the area. This is demonstrated by the language of s 61(5)(c), which requires that an application contain prescribed information, “in relation to the matters sought to be determined”. Section 62(2)(a)(i), therefore, is concerned with identification of an area connected to (“covered by”) both the application and the determination applied for.
120 The NTA uses other connecting phrases, “in relation to an area” and “in relation to land or waters”, to describe the connection required between a determination of native title and an area, and between a compensable act and an area: see, for example, ss 13, 17, 223, 225, 228, 232A and 233. The phrase, “in relation to”, is capable of describing a relationship or connection of “broad import”: see O’Grady v The Northern Queensland Company Limited (1990) 169 CLR 356 at 374. If the phrase, “in relation to”, or, “related to”, had been used in s 62(2)(a)(i) and Sch B, that might have been somewhat more consistent with the applicant’s construction. However, the phrase, “the area covered by the application”, was used in s 62(2)(a)(i), as well as provisions such as s 66(2), (2A) and (3). In my opinion, the use of that different phrase indicates that it was intended to have a different meaning.
121 The phrase, “covered by”, is narrower and more specific than the phrase, “in relation to”. It indicates an area that is to be wholly encompassed or enveloped by the determination applied for. It also signifies a closer and more direct relationship between the area and the determination applied for than would be required by the phrase, “in relation to”. It suggests that a relationship of substance is required between the area, the application and the determination.
122 The applicant’s construction would mean that in a compensation application even where the applicant is alleging that native title is affected in only a part of the native title determination area, the mere assertion in Sch B of Form 4 that the area covered by the application is the whole of the native title determination area means that the whole area is covered for the purposes of s 64(1). However, it could not be said that, in reality, the application “covers”, or envelops, the native title determination area. The assertion would be inconsistent with the language of the phrase, “the area covered by the application”.
123 In addition, the purpose of an application form must be to provide information, or, more precisely, to provide useful information, to the persons who are to be provided with the form or with information drawn from the form. If a compensation application could legitimately assert that the whole of the native title determination area is covered by the application when, in reality, the applicant alleges that the compensable act affects native title in only a part of the area, the practical utility of the form would be limited.
124 The applicant’s construction can be tested by examining its consequences for the operation of s 66(2), (2A) and (3). It will be recalled that those provisions require the Registrar to give notice of the application to persons and entities with interests in “the area covered by the application”. A purpose of those provisions is to provide an opportunity to those whose interests may be affected to be heard. In Daniel for the Ngaluma People & Monadee for the Injibandi People v State of Western Australia [1999] FCA 686, RD Nicholson J also referred at [38] to, “the apparent recognition in the Act of the need to give persons holding interests certainty as to whether their interest is subject of a claim”.
125 The determination of an application permitted under s 61(1) in connection with an area of land or waters may affect the interests of persons or entities, including the Commonwealth, a State, or Territory, in that area. In the case of an application for a determination of compensation, it is necessary to identify the person or entity to whom the act is attributable in order to determine who is liable to pay compensation. The persons who may be ordered to pay compensation may extend, for example, to holders of mining tenements pursuant to s 125A of the Mining Act 1978 (WA). In addition, a determination of whether compensation is payable, and in what amount, requires, at least, identification of an act, the effects of the act upon native title and the area in which rights and interests have been affected.
126 The identification of the persons and entities required to be notified by the Registrar under ss 66(2), (2A) and (3) depends upon identification of “the area covered by the application”. Section 66(3)(a)(iv) requires that notice be given to persons who hold registered proprietary interests in relation to any of the area covered by the application (subject to an exception under s 66(5) where the Registrar considers that it would be unreasonable to do so). Section 66(3)(a)(vii) requires the Registrar (if the Registrar considers it appropriate) to notify any person whose interests may be affected by a determination in relation to the application. If the area covered by the application is the whole of a native title determination area, the Registrar would, at least ordinarily, be required to give notice to all those identified as having such interests in the entirety of area. The Registrar would also be required, under s 66(3)(d), to notify the public of the application. The notifications would state that the whole area is covered by the application. That would obviously be appropriate in the case of a claimant native title determination application where interests in the whole of the claim area may be affected by a determination.
127 However, under the applicant’s construction, if a compensation application asserts that the whole of a native title determination area is, “covered by the application”, that is the area covered for the purposes of ss 66(2), (2A) and (3). That would be so even where the applicant is, in truth, alleging that native title rights and interests are affected in only part of that area. In such a case, unnecessary difficulties would be created. First, the Registrar could be required to engage in the potentially onerous and unnecessary task of identifying and notifying the relevant persons for the whole of the area. Second, the persons notified, whether directly or by public notification, would have to decide whether to become parties without information about the precise areas relevant to the application. That would be inconsistent with the purposes of the notification provision, which are to facilitate certainty and provide procedural fairness. It would also be inconsistent with the purpose of informing the Federal Court of a matter necessary for a determination of compensation, namely the particular areas in which native title rights and interests are alleged to have been affected.
128 Acceptance of the applicant’s construction would give rise to a situation, such as in the present case, where an application is commenced asserting that the area covered by the application is the whole of the native title determination area, without specification of any compensable acts, and an application for leave to amend is later made to include particular acts and associated areas. That position would be inconsistent with the purpose of ss 64(1) and 66 of the NTA of facilitating certainty among those who hold interests in an area.
129 In light of the language, context and purpose of the relevant provisions, the legislative intention is unlikely to be that the area covered by a compensation application is merely the area asserted in the application to be covered, divorced from the actuality or reality of the area in which native title rights and interests are alleged to be affected.
130 The State submits that the area covered by a compensation application is, “commensurate with the area covered by the asserted compensable act or acts”. Under that construction, the applicant would be required to identify a particular act and an area corresponding to the act. There are difficulties with the precise construction advanced by the State. First, the expression, “commensurate with”, is not found in the NTA, and there is uncertainty about the parameters intended to be indicated by this expression. Second, that construction is only concerned with a compensation application, and it has not been explained how it would operate in respect of a native title determination application or a revised native title determination application, which do not rely upon “acts”.
131 I will say something more about the first of these difficulties, since the parties placed emphasis upon their respective interpretations of what Griffiths says about the “geographical footprint” of a compensable act. The State submits that the NTA and Griffiths provide, “no support…for the idea that a broader area of land which is not itself the subject of a compensable act can be the subject of a compensation claim”. This submission suggests that “the area covered by the application” is limited to the area directly affected by a compensable act. However, in Griffiths, the High Court made it clear, at [200]–[219], that non-economic loss, or cultural loss, is not necessarily limited to the precise geographical area where an act takes place, and may extend to the effects of an act upon the enjoyment of native title rights and interests in related areas. The effects may be felt, for example, through a consequential sense of loss of connection to broader areas of country, described by the High Court as “collateral detrimental effect”. Therefore, it is unlikely that the legislative intention is to limit “the area covered by the application” to the geographical area which is itself the subject of the act.
The proper construction of “the area covered by the application”
132 The phrase, “the area covered by the application”, should be understood to have a consistent meaning across the provisions of the NTA which use that phrase, and also to have a consistent meaning across each kind of application that may be made under s 61(1). The three kinds of applications ask the Federal Court to make a determination which may affect interests held by other persons or entities in an area. Sections 62(2)(a)(i) and 66(2), (2A) and (3) are each concerned with identification and notification of persons or entities whose interests in an area may be affected by a determination. In my opinion, “the area covered by the application”, refers to the area or areas where interests of other persons or entities may be affected by the determination that is the subject of the application. Such entities may include a State, a Territory, or the Commonwealth. This meaning produces no inconsistency between the provisions of the NTA which use the same or a similar phrase.
133 The application of this uniform meaning to the three kinds of application described in s 61(1) does not produce a uniform outcome in respect of each kind of application. In the case of a claimant native title determination application, “the area covered by the application”, will be the whole of the area in which it is alleged that native title rights and interests exist, since the interests of other persons or entities in the whole of that area may be affected.
134 In the case of an application for a determination of compensation, “the area covered by the application”, will be the area or areas in which the application alleges that native title rights and interests are or have been affected by a compensable act. It is in that area or those areas that the interests of other persons or entities may be affected.
135 A compensation application is, under s 61(1), an application for a determination of compensation. The identification of an act and its effects upon native title rights and interests in an area are critical to the determination of whether compensation is payable, how much is payable, to whom it is payable and by whom it is payable. It is the identified act and the alleged geographical extent of its effects which determine “the area covered by the application”, not mere assertion in the application as to the area covered.
136 In a compensation application, the area in which native title is alleged to be affected by a compensable act may in some cases, but will not necessarily, be the whole of the native title determination area. It is unnecessary, for present purposes, to decide whether an assertion that “the area covered by the application” is the whole of the native title determination area must be genuine, or tenable, or is otherwise limited.
Is there any “area covered by” the Original Application?
137 Having decided that the phrase, “the area covered by the application”, when applied to a compensation application, refers to the area in which the application alleges that native title rights and interests are or have been affected by an act, it is necessary to construe Sch B of Form 4 correspondingly.
138 Schedule B requires identification of the area in which the application alleges that native title rights and interests have been extinguished or otherwise affected by an act. Schedule I requires identification of an act which it is claimed extinguished or affected native title rights and interests. It is the identification of the alleged act and its effects that identifies the relevant area. Schedule B is concerned with the area in which an act identified in Sch I is claimed to have an effect upon native title rights and interests.
139 The “area covered by the application” in Sch B is the area or areas in which the applicant claims that native title rights and interests are or have been affected by the act or acts identified in Sch I.
140 Schedule I of the Original Application does not identify any act. Schedule B therefore fails to identify any area in which it is alleged that native title rights and interests are affected by any act identified in Sch I. The position is the same in Sch C.
141 It must be concluded that there is, therefore, no area of land or waters “covered by” the Original Application. Accordingly, to allow the applicant to amend the Original Application to include compensable acts alleged to affect native title rights and interests in particular areas would be to allow the inclusion of areas not covered by the Original Application. That is prohibited by s 64(1). Therefore, the proposed amendments cannot be allowed to the extent that they would include the identification of compensable acts.
142 I have already held that the Original Application is liable to be struck out pursuant to s 84C(1) as non-compliant with s 61(5)(c). It may be added that the deficiency in Sch B, and correspondingly in Sch C, provides an additional reason why the Original Application does not contain prescribed information.
143 For the reasons I have given, the Original Application cannot be saved by amendment. The Original Application should be struck out.
144 The State has made an alternative submission that the proposed amendments should be disallowed on other grounds. The State contends, for example, that the acts now sought to be relied upon include acts done prior to the commencement of the Racial Discrimination Act 1975 (Cth), for which there can be no entitlement to compensation under the NTA. In view of my conclusion that the amendments to include specific acts should not be allowed and that the Original Application should be struck out, it is unnecessary to consider the alternative submission.
Whether the application for relief under s 83A of the NTA should be granted
145 The applicant has filed an interlocutory application asking the Court to make a request, pursuant to s 83A(1) of the NTA, that the State Minister conduct searches of registers and other records for current or former interests in relevant land or waters. The applicant contends that the conduct of such searches is necessary for the identification of compensable acts.
146 This aspect of the application is made against the background of evidence from the applicant’s lawyers that a private agent would charge the applicant in the vicinity of $780,000 to perform the same searches for the 11,000 or so lots within the geographical area of the Bigambul Part A and Part B determinations. The applicant’s interlocutory application for the making of a request under s 83A was filed before the application for leave to amend the Original Application to include a number of specified compensable acts that were apparently identified in the meantime.
147 There are a number of controversial issues involved in the applicant’s application, including:
(a) whether a party may make an application for the Court to make a request under s 83A, or whether the power may only be exercised on the Court’s own motion;
(b) the relationship, if any, between s 83A and the processes of preliminary discovery and discovery under the Federal Court Rules;
(c) whether it would be appropriate to make a request expressed in such broad and ill-defined terms;
(d) the discretionary factors that may be involved, including:
(i) whether the applicant or their lawyers have themselves made adequate attempts to conduct searches;
(ii) whether it is open to the applicant to proceed by applying for compensation in respect of the compensable acts of which he is aware and raising the required funds incrementally;
(iii) whether any request under s 83A should await determination of the question of whether the compensation application is properly authorised.
148 In view of my conclusion that the Original Application cannot be amended to identify particular compensable acts, it is unnecessary to determine these issues. That is because the identification of other compensable acts would not save the Original Application from being struck out.
149 The Original Application cannot be amended to identify compensable acts because the amendments would, contrary to s 64(1) of the NTA, result in the inclusion of areas not included in the Original Application.
150 The Original Application fails to identify any compensable act, contrary to the requirement of Sch I of Form 4. Further, the Original Application fails to contain information identifying the boundaries of the area covered by the application, contrary to Sch B, and fails to contain a map of “the area covered by the application”, contrary to Sch C. The Original Application therefore fails to comply with the requirement of s 61(5)(c) of the NTA that the application contain prescribed information, and should be struck out.
151 In these circumstances, the applicant’s application for the Court to request, under s 83A of the NTA, that the State Minister conduct searches is otiose and must be dismissed.
152 I will hear the parties as to costs.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. |
Associate:
QUD 784 of 2019 | |
ANTHONY TURNBALL | |
Fifth Respondent: | REGINA MUNN |
Sixth Respondent: | LILLY GRAHAM |
Seventh Respondent: | BRENTON SEFO WALLACE |
Eighth Respondent: | TELSTRA CORPORATION LIMITED ABN 33 051 775 556 |
Ninth Respondent: | CARBON TRANSPORT AND STORAGE CORPORATION (CTSCO) PTY LIMITED (ACN 143 012 971) |
Tenth Respondent: | GRAINCO AUSTRALIA LIMITED |
Eleventh Respondent: | GRAINCORP OPERATIONS PTY LTD |
