FEDERAL COURT OF AUSTRALIA Muthi Muthi People #1 v Balranald Local Aboriginal Land Council [2000] FCA 1781 MUTHI MUTHI PEOPLE #1 & ORS v BALRANALD LOCAL ABORIGINAL LAND COUNCIL NG 6079 OF 1998 MUTHI MUTHI PEOPLE #3 & ANOR v BALRANALD LOCAL ABORIGINAL LAND COUNCIL NG 6172 OF 1998 MATHEWS J 28 NOVEMBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG6079 of 1998 NG6172 of 1998 BETWEEN: MUTHI MUTHI PEOPLE #1 AND ORS FIRST APPLICANT MUTHI MUTHI PEOPLE #3 AND ANOR SECOND APPLICANT AND: BALRANALD LOCAL ABORIGINAL LAND COUNCIL RESPONDENT JUDGE: MATHEWS J DATE OF ORDER: 28 NOVEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. I decline to make the orders sought in the notice of motion dated 28 February 2000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG6079 of 1998 NG6172 of 1998 BETWEEN: MUTHI MUTHI PEOPLE #1 AND ORS APPLICANT MUTHI MUTHI PEOPLE #3 AND ANOR SECOND APPLICANT AND: BALRANALD LOCAL ABORIGINAL LAND COUNCIL RESPONDENT JUDGE: MATHEWS J DATE: 28 NOVEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Mary June Pappin and Gary Pappin on behalf of the Muthi Muthi People are claimants in a native title determination application first lodged with the National Native Title Tribunal on 15 September 1997. The claim in its amended form was accepted for registration on 8 September 2000. The claimed area includes part of a property known as Auley Station near Balranald. 2 Auley Station was initially purchased in 1987 by the Western Regional Aboriginal Land Council on behalf of the respondent, the Balranald Local Aboriginal Land Council ("the BLALC"). In October 1990, by virtue of amendments to the Aboriginal Land Rights Act 1983 (NSW), the property vested in the New South Wales Aboriginal Land Council. In 1999 it was transferred by that council to the BLALC. 3 Auley Station consists of both freehold and leasehold land. The freehold land is, it goes without saying, outside the ambit of the native title determination application and also outside this court's jurisdiction. The balance of the land is held under pastoral leases which were first granted in 1902 and 1904 under the Western Lands Act 1901 (NSW). The purpose of the original leases was grazing. This purpose was extended in 1984 when a cultivation permit was issued under section 18DA of the Western Lands Act 1901 (NSW). The following year the permit was varied again to allow continuous cropping. 4 In about 1987 Daryl Pappin, who is also known as Joe Pappin, was employed as manager of Auley Station. He is the husband of one of the present applicants and the father of the other. At about the same time, Mr Pappin and his family moved into the homestead on Auley Station where, as I understand it, they have remained ever since, despite recent attempts to evict them. The residence which they occupy is on the freehold section of the property and is therefore outside the ambit of these proceedings. There are currently proceedings between the respondent and the Pappins, as I understand it, in the Residential Tenancy Tribunal as to the occupancy of this residence and these are due to resume next month. There are also proceedings between the parties in the Land and Environment Court, which are due to be heard, at least on an interlocutory basis, tomorrow. 5 In November 1999 the New South Wales Aboriginal Land Council terminated Mr Pappin's employment as manager of Auley Station. On 17 February 2000, Mrs Gloria Murray as chairperson of the BLALC, wrote to Mr Pappin requiring that he and his family vacate the property. The letter contained the following paragraph: "The new cropping season is about to begin and we intend to crop Auley this year. The Gilbee boys will be out there to start any day. While you and your family are still on Auley, you are to stay away from any cropping activities on the property, let the boys do their job." 6 According to Mrs Murray's affidavit, in early March 2000 the respondent's contractors attempted to go onto the leasehold section of the property in order to commence cropping work. They were physically prevented from doing so by members of the Pappin family. 7 In the meantime, on 28 February 2000, the two applicants, Mary and Gary Pappin, sought interlocutory relief in the present proceeding in the following terms: "The applicants claim by way of interlocutory relief an order that restrains the Balranald Local Aboriginal Land Council from proceeding with an eviction of members of the native title claim group associated with NG6079/98 from Western Land Leases 1108 and 1307 being grazing leases located within the property known as Auley Station." 8 Despite the interlocutory nature of the proceedings, it has taken precisely 8 months to reach the stage of hearing. Today Mr Dengate appeared for the applicants, in accordance with leave previously granted, and Mr Robertson for the respondent. 9 The only evidence consisted of an affidavit of Mrs Mary Pappin on behalf of the applicants and two affidavits of Mrs Gloria Murray on behalf of the respondent. These in essence set out the history of the landholding and of the Pappins' occupation of Auley Station. 10 It seems to me that the claim for interlocutory relief, at least as presently framed, is misconceived. The claim seeks that the respondent be restrained from evicting the applicants from the property. But eviction implies possession. More importantly, if the applicants were to successfully challenge a threatened eviction, they must be able to show a right to possession, or, at the interlocutory stage, that there is a serious question to be tried on this issue. Furthermore, they must, at the interlocutory stage, show that the balance of convenience favours the granting of the relief which is sought. 11 Since the dismissal of Mr Daryl Pappin as manager of Auley Station, neither he nor his family have any right to occupy the leasehold section of the property, other than such rights as they may hold in common with other traditional owners as native title holders. It is clear, as Mr Dengate concedes, that the rights of the respondent as lessee under these pastoral leases have priority over the rights of the applicants as persons asserting native title over the property. So long as the respondent is exercising its rights under the lease the applicants can have no ground for complaint. And there is no evidence to suggest that the respondent has acted other than in accordance with the lease. Indeed the only evidence of any clash between the parties as to the use of the leasehold section of the property involved not the respondent threatening the applicants' rights, but the applicants asserting rights which they did not possess. The respondent as lessee had a right to crop the land, a right which had priority over any residual rights of the applicants as native title holders. 12 As Mr Robertson pointed out in his written submissions, the operation of the non-extinguishment principle means that any rights which may be exercised by the respondent as lessee under these leases cannot prejudice any native title rights which the applicants might ultimately seek to assert in these proceedings. Accordingly, in my view, no action has been taken or threatened by the respondent which can prejudice any rights of the applicants, assuming in the applicants' favour that they receive a favourable outcome in the overall proceedings. 13 For all these reasons, I can find no reason to make the interlocutory order sought by the applicants and I decline to make it. No costs are sought by the respondent and therefore there will be no order as to costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews . Associate: Dated: 28 November 2000 Counsel for the Applicants: Mr M Dengate Solicitor for the Applicants: Counsel for the Respondent: Mr T Robertson Solicitor for the Respondent: Henrietta Dean Date of Hearing: 28 November 2000 Date of Judgment: 28 November 2000