Kanak, Dominic v New South Wales Aboriginal Land Council [1997] FCA 954

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1029 of 1996

BETWEEN: DOMINIC KANAK

Applicant

AND: NEW SOUTH WALES ABORIGINAL LAND COUNCIL

Respondent

JUDGE: BURCHETT J

DATE: 31 JULY 1997

PLACE: SYDNEY

REASONS FOR JUDGMENT This matter is an application brought under the Administrative Decisions (Judicial Review) Act 1977 for judicial review of a decision or, alternatively, of conduct, or of a failure to decide, expressed in the application in the following way: "APPLICATION TO REVIEW THE DECISION OF THE NSWALC THAT THEY DID NOT REOPEN THE PART HEARD ADJOURNED PUBLIC INQUIRY INTO THE NONCLAIMANT APPLICATIONS OF THE [COMMONWEALTH] PIPELINE AUTHORITY BY THE NATIONAL NATIVE TITLE TRIBUNAL [NNTT] PRIOR TO SEPTEMBER 16 1996. APPLICATION TO REVIEW THE CONDUCT OF THE NSWALC WHEREBY THEY DID NOT REOPEN THE PART HEARD ADJOURNED PUBLIC INQUIRY INTO THE NONCLAIMANT APPLICATIONS OF THE [COMMONWEALTH] PIPELINE AUTHORITY BY THE NNTT BEFORE SEPTEMBER 16 1996. APPLICATION TO REVIEW THE FAILURE OF THE NSWALC TO DECIDE THAT THE PART HEARD ADJOURNED PUBLIC INQUIRY INTO THE NONCLAIMANT APPLICATIONS OF THE [COMMONWEALTH] PIPELINE AUTHORITY SHOULD HAVE BEEN REOPENED BEFORE SEPTEMBER 16 1996." It is stated in the application that the applicant is aggrieved by the decision and by the conduct, and also by the failure to make a decision, alleged in respect of the New South Wales Aboriginal Land Council as a representative body, because the applicant's occupational or professional, statutory, legal and other interests and special interests claimed in his affidavit have been adversely affected. Those interests, it may be noted in brief (and I do not suggest completely exhaustive) summary, are the interests of an Aboriginal or Torres Strait Islander who does not claim to belong to the particular tribe or other group which might have some claim to native title under the native title legislation in respect of the land which was in question in the inquiry mentioned in the application, but to a different group altogether with ancestral links to a different area altogether. However, Mr Kanak does belong to an association, known as the Darug Link Association Incorporated, which he tells me has since changed its name to the Darug Tribal Aboriginal Corporation. Mr Kanak says that, not only is he a member of this body, but he is a consultant on native title matters, and that these special interests should be taken into account in deciding whether he has a sufficient interest to entitle him to bring the application in question. The inquiry the subject of the alleged decision, conduct and failure to decide was a matter that came before Mr Wootten QC, as a presidential member of the National Native Title Tribunal, upon a non-claimant application brought by the Commonwealth Pipeline Authority. Such an application is referred to in ss 66 and 67 of the Native Title Act 1993, pursuant to which provision is made for notification of an application made by such a body as the Pipeline Authority, and for the launching of a claim in response by a native title claimant, within the period of two months, either by making a claim that covers any part of the area covered by the non-claimant application under s 66(4) or by notifying a desire to be a party to the application under s 66(3)(b). In this case no such application was made, and as a consequence, by virtue of the provisions of those sections, the application was taken to be unopposed. However, as an unopposed application, and because as I understand there were negotiations going on between the Pipeline Authority or companies associated with it and some Aboriginals, and ultimately the Darug Link Association, the matter was adjourned and remained adjourned for a period of some two years up to 16 September 1996. It was during that period that Mr Kanak, without specifying the precise date, claims the Aboriginal Land Council at some stage came under a duty to have the matter restored for hearing. The decision of Mr Wootten shows that the Pipeline Authority was the curiously described non-claimant, and that at the hearing the company ICI Australia Operations Pty Limited, the New South Wales Aboriginal Land Council (the respondent to Mr Kanak's present application), a Mr Colin Gale on behalf of the Darug Tribal Aboriginal Corporation and Mr Kanak, who is recorded as having then described himself as a native title consultant and former associate member of Darug Link, all appeared. Mr Bezzi, a solicitor from the Australian Government Solicitor's Office then appearing for the non-claimant, sought at that stage dismissal of the applications pursuant to s 149 of the Native Title Act, and submitted that the dismissal could have no adverse effect on any native title right. His application was supported by the company ICI Australia Pty Limited and by Mr Simon Blackshield who appeared for the New South Wales Aboriginal Land Council. Mr Wootten recorded all parties as having expressed the view that the dismissal of the application would not have any adverse effect on any native title rights which then existed, and he reached a conclusion which he stated as follows: "It appears to me that the only possible effect of the dismissal of the applications on native title interests is a positive one in as much [as] it removes a possible vehicle for a determination that native title does not exist in any of the areas subject to the non-claimant applications. Indeed Mr Blackshield indicated that it was for this reason that NSW Aboriginal Land Council had supported the procedures which had been implemented and which would be completed by dismissal of the applications." The Tribunal then went on to state its satisfaction that it was appropriate to dismiss the applications, and to do so pursuant to s 149 of the Act. What Mr Kanak, in his application, is doing is to complain of the failure of the Aboriginal Land Council to bring this matter back at an earlier stage than the stage at which in fact it came back. Whatever the merits of Mr Kanak's view of what decision should have been made on that matter, the fact is that the proceeding did come back before Mr Wootten and was then dealt with. It seems to me there is no basis for concluding that anything that Mr Kanak now claims could have been gained by bringing the matter back earlier could not have been secured when it did in fact come before the Tribunal. There is no additional benefit which could be obtained by the making of some order on the basis that some error of law occurred in connection with the decision taken, the conduct engaged in, or the failure to decide of which complaint is made. In any case, the matter having actually come back and having been finally disposed of by the decision of Mr Wootten, there is no further relief that I could now grant in relation to it. It need hardly be added that particularly is that so when it is borne in mind that the parties to the present matter do not include all the parties who were concerned with the decision taken before Mr Wootten. Plainly, that decision could not be disturbed by a decision made in the absence of parties interested in it at the time, represented before Mr Wootten, and involved in the decision he made, and in the absence of the Tribunal itself. In the circumstances, it seems to me that the present application lacks any utility. Nothing that could now be done could revive the corpse of the expired proceeding. Even if it could, the parties who would have the task of resuscitating it are the parties who were involved, and that brings me to the second ground which has been raised for summary dismissal of this application, which is lack of standing. It is put by counsel for the New South Wales Aboriginal Land Council, Mr Beech-Jones, in his thorough and careful argument, that Mr Kanak has no standing to seek any relief against his client in relation to the matters sought to be impugned by the application, given that he has no interest whatever in any claim for native title over the subject land, and holds no official position entitling him to act on behalf of the Darug Tribal Aboriginal Corporation or any similar body, or any group of claimants. It seems to me that this is right, and that the decision of the Full Court in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 really requires the dismissal of this application. Mr Kanak's interest in a philosophic sense, as a descendant of indigenous people, cannot for a moment be doubted. But in that kind of sense, every Australian has an interest in the process of nation-building to which the native title legislation was intended to contribute, and I do not think that Mr Kanak's position elevates his undoubted concern with problems of this kind into a right to take legal proceedings over the internal decision-making of the Aboriginal Land Council with reference to a potential claim to native title with which he has himself no direct concern. For these reasons, the motion for summary dismissal must succeed, and I order that the application be dismissed. An application for costs on an indemnity basis has been made on the footing that there have been a number of prior proceedings by which, in one way or another, in substance the same points have been sought to be agitated by Mr Kanak. I requested to be told whether, in any of those matters, an order for costs on an indemnity basis had either been made or sought, and I was told it had not. In those circumstances, and in all the circumstances of the case, I do not think I should at this stage make an order on an indemnity basis against Mr Kanak, who has argued his own case. But there is no escape from the proposition that he ought to pay the costs on a party and party basis. Also, he ought clearly to understand that, if there are repeated, completely groundless, applications which in truth can be regarded as attempts collaterally to attack decisions that have already been held to be good, he will inevitably incur orders for costs on an indemnity basis in the future. Having made that perfectly clear in case there are any further actions - and I hasten to add I do not assume that there will be - I, in this case, simply make the usual order that Mr Kanak pay the costs of the motion and of the proceeding which I have dismissed summarily upon the motion. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett