Kennedy v State of Victoria [1999] FCA 659

FEDERAL COURT OF AUSTRALIA

Kennedy v State of Victoria [1999] FCA 659

NATIVE TITLE – claim for declaration of "future act" - whether "future act" can exist prior to determination of native title claim.

WILLIAM JOHN KENNEDY & RAYMOND PHENNELL MARKS v STATE OF VICTORIA & LEONARD MICHAEL SCARCE

VG 6040 OF 1998

NORTH J

30 MARCH 1999

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 6040 OF 1998

BETWEEN: WILLIAM JOHN KENNEDY

First Applicant

RAYMOND PHENNELL MARKS

Second Applicant

AND: STATE OF VICTORIA

First Respondent

LEONARD MICHAEL SCARCE

Second Respondent

JUDGE: NORTH J

DATE OF ORDER: 30 MARCH 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application and motion, notice of which was filed by the first respondent on 25 November 1998, are adjourned to be heard and determined immediately following the hearing of the country claim, being proceedings VG 6002 of 1998. 2. The matter is otherwise adjourned to 10:15 am on 21 April 1999. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 6040 OF 1998

BETWEEN: WILLIAM JOHN KENNEDY

First Applicant

RAYMOND PHENNELL MARKS

Second Applicant

AND: STATE OF VICTORIA

First Respondent

LEONARD MICHAEL SCARCE

Second Respondent

JUDGE: NORTH J

DATE: 30 MARCH 1999

PLACE: MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT 1 In this matter the applicants are claimants for native title, and the respondents are the State of Victoria and Mr Scarce. On 28 December 1995, the applicants lodged with the National Native Title Tribunal (the Tribunal) an application for determination of native title in respect of the claimed land which is an area roughly bounded by Murrayville, Ouyen, Birchip, Wycheproof, Ararat and Edenhope. On 6 October 1996 the application was accepted by the Tribunal under section 63 of the Native Title Act 1993 (Cth) (the Act). The claimed land includes allotment 45C, Parish of Kanur West, county of Kara Kara which is an area of land of approximately 80 acres. 2 Accepting for the purposes of today that the land was unalienated Crown land until January 1998, on 7 January 1998, the State of Victoria purported to grant to Mr Scarce an estate in fee simple of the said crown allotment 45C. In these proceedings the applicants seek a declaration that that grant was invalid to the extent that it affects the native title claimed. It was argued by Mr Howie on behalf of the applicants that there was an issue between the parties as to whether the grant is a future act as defined by section 233 of the Act. 3 He submitted that there was utility in the making of a declaration that the grant was a future act in order to put Mr Scarce, in particular, on clear notice that any dealing with the land by him would be affected by the provisions of section 24OA of the Act which provides: Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title. 4 Against this argument Mr McIntosh, appearing on behalf of the State of Victoria with Mr Paterson, contended that there was no utility in the making of such declaration because a future act cannot exist without a determination that native title exists. For instance he relied on section 24AA(1) which provides relevantly: This Division deals mainly with future acts which are defined in section 233. Acts that do not affect native title are not future acts; therefore this Division does not deal with them… [emphasis in original] 5 It has been rightly conceded by Mr McIntosh that if the applicants succeed in the claim as presently accepted, then the effect of section 24OA would be that the grant to Mr Scarce would be subject to the native title rights of the claimants. This concession achieves in practical terms as much as it is reasonable for the claimants to presently expect. 6 In all the circumstances it is appropriate to adjourn the final determination of the application for a declaration to the same time and date as the hearing of the country claim which will determine, albeit over a much larger area, whether native title exists and if so in what respects over allotment 45C. In deciding to adjourn the matter, am important factor has been the fact that the grant by the State of Victoria in the present case was made inadvertently. The normal practice of the State of Victoria is not to alienate land while a native title claim is pending. There is therefore no likelihood that the present problem will arise again. 7 If circumstances arise between now and the hearing of the country claim which are apt to prejudice the enjoyment of any rights which might be found to exist in favour of the claimants, then the claimants have ample rights to return to the court. They may do so either in this application or the country claim and may seek interlocutory relief by way of injunctive orders moulded to meet the circumstances or seek other relief as they might be advised. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.