FEDERAL COURT OF AUSTRALIA The Ngalakan People v Northern Territory of Australia [2003] FCA 23 NATIVE TITLE – costs – whether successful applicant should enjoy an order for costs. Native Title Act 1993 THE NGALAKAN PEOPLE v NORTHERN TERRITORY OF AUSTRALIA No DG6003 of 1996 O'LOUGHLIN J ADELAIDE 28 JANUARY 2003 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY DG OF 1996 BETWEEN: THE NGALAKAN PEOPLE APPLICANT AND: NORTHERN TERRITORY OF AUSTRALIA RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 28 JANUARY 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. Each party pay its own costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY DG OF 1996 BETWEEN: THE NGALAKAN PEOPLE APPLICANT AND: NORTHERN TERRITORY OF AUSTRALIA RESPONDENT JUDGE: O'LOUGHLIN J DATE: 28 JANUARY 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 In these proceedings the applicants, the Ngalakan People, obtained a determination of native title over a small area of land ("the claim area") on the southern bank of the Roper River in the Northern Territory of Australia. The claim area, which is approximately 320 kilometres south east of Katherine, can be described (for convenience, although somewhat inaccurately) as being the land within the gazetted boundaries of the Township of Urapunga. 2 The site of the intended township of Urapunga is bounded on the east, west and south by land that is now held in trust for the Ngalakan traditional owners; that occurred as a result of the recommendations of Toohey J sitting, in 1982, as the Aboriginal Land Rights Commissioner in the Yutpundji Djindiwirritj (Roper Bar) Land Claim ("the Roper Bar Land Claim"). The site of the intended township had been excluded from the Land Claim because of the provisions of subs 3(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (NT) ("the Land Rights Act"). That section provides that unalienated Crown land means: "Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town." Toohey J had noted in par 7 of his report that, as land in a town could not be claimed under the Land Rights Act, "the Town of Urapunga did not form part of the claim as finally presented". I found that if the claim area had been available for claim under the Land Rights Act, it too would have been the subject of a recommendation for a grant in that it would have formed part of the land that was the subject of the Commissioner's recommendation. There was no reason to suppose that it would not have formed part of the land that was, in fact, the subject of a subsequent grant. 3 The substantive application in this matter was accepted by the National Native Title Tribunal ("the Tribunal") on 28 September 1995 in accordance with subs 66(2) of the Native Title Act 1993 (Cth)("the Act") as then in force. On 4 December 1996, the President of the Tribunal directed the Registrar of that Tribunal to lodge the application with this Court for its decision. That direction followed a decision by a Deputy President of the Tribunal that there was "no possibility of the parties reaching agreement as to the terms of the determination of the Tribunal in relation to the application under s 73 of the Act". 4 The trial was conducted at Buddawarka Outstation, an Aboriginal community settlement that was home to many of the applicants; however, evidence was also taken at a number of places on or near to the claim area. The evidence of the claimants was taken on site in the week of Monday, 12 July 1999. The Court then adjourned to 17 April 2000 to hear the evidence of the applicants' expert anthropological witnesses. By arrangement with counsel, the Court then adjourned to receive the written submissions of the parties; the last of those submissions was not received until 21 August 2000. 5 Although the identity of some of the members of the community was the subject of dispute, there was no real argument advanced by the Northern Territory ("the respondent") against the existence of native title over the greater part of the claim area. 6 In 1886 the township of Urapunga was surveyed and the township was proclaimed and declared on 17 March 1887, pursuant to s 17 of the Northern Territory Crown Lands Consolidation Act (1882) ("the Crown Lands Act"). Section 17 was in these terms: "The Governor may, from time to time, by notice published in the Gazette, declare what parts of the waste lands are to be set apart for the sites of new towns or townships, and for suburbs thereto, and such lands shall thereupon be reserved and designated as town, township, or suburban lands as the case may be." 7 By virtue of the proclamation and declaration, lands were set apart as the site for a new town, to be called the Town of Urapunga and such lands thereby became reserved and dedicated town lands. Section 6 of the Crown Lands Act stated that until waste land had been surveyed and delineated in public maps in accordance with s 7, there could be no fee simple grants. Section 14 was of particular importance to this case as it provided that: "The delineation in the public maps of the said Northern Territory of any public roads shall be and be deemed to be a sufficient dedication to the public of such roads, anything in the last preceding section to the contrary notwithstanding." 8 The survey of the Township consisted of 276 allotments that were arranged into blocks on a grid. A public plan of the township of Urapunga, as published by the Northern Territory Department of Lands, Planning and Environment on 23 October 1995 shows the layout of the 276 allotments together with the provision for roads and a square that was to be known as "Salisbury Square". Five of the original allotments, numbered 1, 2, 22, 23 and 24 have been consolidated into one large allotment; that new allotment, which has been renumbered allotment 277, was initially the subject of the issue of a Crown Lease. That lease, which was granted in April 1984, required the lessee to establish a caravan park and, subject to the due compliance by the lessee with all terms and conditions of the lease, it gave to the lessee an option to surrender the lease in exchange for an estate in fee simple. The option was exercised and a grant in fee simple of allotment 227 was made on 11 April 1988. The applicants have excluded from their claim that last mentioned allotment; they accepted that, as it was the subject of a freehold grant, any native title that may have once existed in respect of that allotment had been extinguished. It was also accepted by the parties that allotment 227 is the site of the existing Caravan Park at the Roper Bar, although no survey evidence to establish that fact was adduced. Grants of estates in fee simple were also made in respect of seven other allotments and they were also excluded from the applicants' claim. 9 Notwithstanding the gazettal of the Township, little development has occurred and the gazetted area is presently bush land except for the operational caravan park and a few dilapidated and abandoned buildings. 10 Three ungazetted roads run through the gazetted area; they are known as the Roper Highway, the Boat Ramp Road and the Roper Store Road. The area covered by the present application for a determination of native title originally included the land represented by these three roads. However, the application was amended prior to its acceptance on 28 September 1995 to exclude all roads over which the public has a right of way. The applicants have therefore excluded each of those roads from their claim for native title. There was a dispute between the parties about the lateral measurement of the excluded areas. The applicants, for their part, were only prepared to concede "land on which the road has physically been constructed". On the other hand, the Territory argued that the excluded areas should be taken to include "cleared and otherwise altered land forming the carriageway and incidental to its use". In my opinion, the submissions of the Territory had to prevail – although I was not initially in a position to state how that success was to be reflected in measurements. There was an obvious need for contiguous land to allow for a variety of services such as signage, drainage and visibility. As the parties could not agree appropriate widths, it was necessary to reopen the case and hear further argument. The matter was ultimately resolved by the Court in terms that more favoured the argument of the respondent than that of the applicants. 11 I turn next to the streets as depicted in the plan of subdivision. The Territory submitted, and in my opinion, correctly, that, if native title existed prior to 1889 in respect of the gazetted streets of the township, it was extinguished as and from the time when the roads were dedicated. 12 The next issue that had to be resolved was the question of exclusivity. The Territory submitted that the applicants were not entitled to claim exclusivity in respect of such native title rights and interests (if any) as may be found by the Court to exist in their favour. It argued that the fact that there may be no one, apart from the native title holders, with rights of possession, occupation, use or enjoyment of the claimed land was not a decisive factor. I disagreed. I concluded, in favour of the applicants that their native title rights were exclusive. 13 The application for an order for costs was supported by the affidavit of Penelope Alice Cresswell, a solicitor employed by the Northern Land Council and one of the solicitors for the applicants. She referred to correspondence that had passed between the Northern Land Council and the solicitor for the respondent. She either quoted relevant sections from that correspondence or annexed copies of letters to her affidavit. It was thereby intended to establish unreasonability on the part of the respondent. However, in my opinion, that attempt was unsuccessful. Ms Cresswell quoted from a letter that Mr Levy, another solicitor for the applicants, wrote to the respondent's solicitor. The relevant passage was: "Should this matter proceed to the Federal Court it would be highly likely, I suggest, that the Ngalakan people would establish strong native title interests and, as in Mabo v Qld (No 2) 107 ALR 1, the Court would declare that the Ngalakan people 'are entitled as against the whole world to possession, occupation, use and enjoyment' of the land claimed (per Brennan J., p 56). Accordingly I suggest that an appropriate settlement of this matter should include the grant of a freehold estate to the applicants. This could be achieved by scheduling the land under the ALRA [i.e. the Land Rights Act]. Regardless of the method used I emphasise that the claimants do not wish their native title interests to be extinguished by any grant of land arising from these negotiations. The Ngalakan are keen to have their traditional rights registered on the Native Title Register administered by the NNTT." Ms Cresswell went on to depose that the proposition advanced by Mr Levy was never accepted. She added that neither the applicants nor their legal advisers were informed of the reason why Mr Levy's suggested settlement offer (or some reasonable variation) of it was not acceptable. 14 Having regard to the arguments that were advanced on behalf of the respondent during the course of the trial, and having regard to my conclusion which supported the respondent's arguments it is obvious that Mr Levy's proposed settlement was rejected because it did not offer to exclude the gazetted roads from any determination of native title. There was not any conduct on the part of the respondent which could be classified as unreasonable. It unsuccessfully opposed a grant of exclusivity but that does not make its conduct unreasonable. Nor was it unreasonable on the part of the applicants to argue that the gazetted roads had not extinguished native title. 15 As counsel for the respondent pointed out in her written submissions, "there can be no dispute" that "the applicants were substantially successful in making out their case for a determination of native title". On the other hand, there can be no dispute that the respondent succeeded in its argument that native title had been extinguished in relation to the streets of Urapunga. 16 Even though the question of costs remains within the unfettered discretion of the trial Judge, the fact that subs 85(1) directs one's attention to the primary concept that each party will pay its own costs, turns one away from immediately adopting the common place idiom that costs will follow the event. In the world of practicality native title is something new and the law is still grappling with it. The respondent, not unreasonably, required the applicants to prove their entitlement to native title and resisted, unsuccessfully, their claim for exclusivity. On the other hand, the applicants pursued their claim over the streets or Urapunga with acceptable vigour but were unsuccessful. If I were minded to enter the realm of costs and to grant the applicants some of their costs, I would have to likewise grant the respondent its costs in respect of its successful defence over the streets or Urapunga. I think the more practical solution is to follow the spirit of subs 85(1) of the Act. The order of the Court is that each party pay its own costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 28 January 2003 Counsel for the Applicant: Mr R Levy Solicitor for the Applicant: Ms P A Cresswell Counsel for the Respondent: Ms R Webb Solicitor for the Respondent: Solicitor for the Northern Territory Written submissions were filed on 5 and 26 March 2002. Date of Judgment: 28 January 2003