Kenyon v Northern Territory of Australia [2003] FCA 1178

FEDERAL COURT OF AUSTRALIA

Kenyon v Northern Territory of Australia [2003] FCA 1178

Native Title Act 1993 (Cth) Lands Acquisition Act (NT) Cemeteries Act (NT) Griffiths v Lands and Mining Tribunal [2003] NTSC 86 considered TONY KENYON AND KATHLEEN MILLS ON BEHALF OF THE WARAI AND KUNGARAKAN PEOPLES v NORTHERN TERRITORY OF AUSTRALIA D 6027 of 2000 MANSFIELD J 31 OCTOBER 2003 DARWIN

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY D 6027 OF 2000

BETWEEN: TONY KENYON AND KATHLEEN MILLS ON BEHALF OF THE WARAI AND KUNGARAKAN PEOPLES

APPLICANTS

AND: NORTHERN TERRITORY OF AUSTRALIA

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 31 OCTOBER 2003

WHERE MADE: DARWIN

THE COURT ORDERS THAT: 1. The application by the respondent for the determination of a preliminary question before the hearing and determination of the substantive proceedings be refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY D 6027 OF 2000

BETWEEN: TONY KENYON AND KATHLEEN MILLS ON BEHALF OF THE WARAI AND KUNGARAKAN PEOPLES

APPLICANTS

AND: NORTHERN TERRITORY OF AUSTRALIA

RESPONDENT

JUDGE: MANSFIELD J

DATE: 31 OCTOBER 2003

PLACE: DARWIN

REASONS FOR JUDGMENT 1 This proceeding involves an application for the determination of native title under the Native Title Act 1993 (Cth) (the NT Act). The respondent has sought an order under O 29 r 2(a) of the Federal Court Rules that a preliminary question be determined in these proceedings before the hearing and determination of the substantive application. It is: 'Whether s 47B(1)(b)(ii) of the Native Title Act 1993 (Cth) has application to the land subject of this native title determination application.' 2 I have discussed in Griffiths v Northern Territory of Australia [2003] FCA 1177 (also delivered today) at [3]-[6] some considerations relevant to whether an order under O 29 r 2 of the Rules should be made. I shall not repeat that discussion. 3 The application for determination of native title is in respect of the land known as Lot 176(a) Adelaide River. It is an area of land of about 2.6 hectares in the town of Adelaide River. By notice of proposal dated 30 September 2000 the Minister for Lands, Planning and Environment of the Northern Territory gave notice pursuant to s 32 of the Lands Acquisition Act (NT) (the LAA) of an intention to acquire the subject land by the Department of Local Government for the purpose of preserving the land under the Cemeteries Act (NT) and for the completion of government infrastructure such as the provision of water and access. The land is adjacent to the Adelaide River War Cemetery on Memorial Terrace at Adelaide River. The application for determination of native title was prompted by the notice of proposal. The land was subsequently acquired by notice of acquisition given under the LAA on 8 May 2002. 4 In proceedings in the Supreme Court of the Northern Territory in Griffiths v Lands and Mining Tribunal [2003] NTSC 86 (Griffiths) Angel J on 31 July 2003 determined that a purported acquisition of Crown Land under the LAA was invalid. The land then under consideration was not the land the subject of the present application. His Honour said at [23]: 'In the absence of express power to do so, land in which the Crown has radical title or in which the Territory has a registered fee simple and no other party has any beneficial interest derived from the Crown can not be compulsorily acquired. Where parties other than the Crown hold registered estates or interests the land can be acquired. Where, as here, the land is Crown land (land in which there is only radical title or which is registered in the Territory) and there is or may be a third party unregistered interest underived from the Crown, the land can not, but the unregistered third party interest may, be compulsorily acquired.' Hence, in that case, Angel J determined that acquisition of Crown lands under the LAA was invalid. 5 Counsel for the respondent in this matter acknowledged that, subject to Griffiths being reversed by the Full Court of the Supreme Court of the Northern Territory (an appeal has been instituted and is to be heard early in 2004), the decision in principle applies to the present acquisition. If that decision stands, it is accepted that the acquisition of the land the subject of the present application by notice given on 8 May 2002 will also be invalid. 6 The application for determination of native title will depend upon the applicants establishing the existence of, and extent of, the native title rights and interests to which they are entitled under the NT Act. Those rights are vulnerable to having been extinguished by previous transactions concerning the land. It is at that point that s 47B becomes relevant. Provided it applies, s 47B(2) provides that the extinguishment of native title rights and interests by the creation of any prior interest in relation to the land must be disregarded. The critical provision for prevent purposes is s 47B(1)(b)(ii). Section 47B(1) relevantly provides that: 'This section applies if: (a) a claimant application is made in relation to an area; and (b) when the application is made, the area is not: (i) … (ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or (iii) … and (c) when the application is made, one or more members of the native title claim group occupy the area.' 7 The question sought to be separately tried is in substance whether the proclamation of the Town of Adelaide River on 30 May 1975, so as to include the land the subject of the present application, has the effect of a proclamation made by the Crown under which the whole of the land is to be used for public purposes or for a particular purpose. If so, then s 47B will not apply to the claim area of the application and it may be vulnerable to extinguishment. If not, then s 47B will apply to the claim area of the application and it will not be vulnerable to extinguishment. 8 Although the proposal for the separate trial of the preliminary question has some attraction, upon reflection I do not consider it appropriate to make the order sought at this stage of the proceedings. In the first place, it is not at all clear that resolution of the proposed question will resolve or substantially resolve the proceedings, however it may be resolved. In either event, it is not clear that the application will not be pursued. It is likely to be pursued, and the outcome of the proposed question will simply indicate whether the applicants seek exclusive or non-exclusive native title rights and interests over the claimed land. The parties have not reached any agreement about the connection issues, or other extinguishment issues, so that the determination of the proposed preliminary question will or may bring an end to the proceedings, or even considerably shorten them. On the other hand, given that there may be some difference of view between judges of the Court as to the applicability of s 47B to proclaimed township areas (see Griffiths at [18]-[19]), there is a very real prospect that appeal processes may considerably delay the further conduct of the application. 9 The proceedings have not progressed greatly towards a final hearing, although the point may soon be reached where it is appropriate that they do so. The application has been referred to the National Native Title Tribunal for mediation pursuant to s 86B(1) of the NT Act. In due course it will be the subject of a report from that Tribunal. At present the matter has not resolved. There is an ongoing mediation of the claim overall between the applicants and the respondent through the Tribunal. It is unclear how that mediation is progressing. But it may be undesirable for the Court to take steps to have issues determined which may adversely impact upon the prospects of resolution of such a mediation, at least where resolution of such issues may itself be a prolonged process including appeal processes. There is also no agreement as to any facts or indeed as to documents which are relevant to determination of the proposed preliminary question in the principal proceeding. The proposed order which is sought by the respondent includes a timetable for the exchange of discovered documents to see if some agreement can be reached in respect of the documents relevant to determination of the preliminary question. It is unclear whether there is any additional evidence which would be sought to be adduced relevant to the determination of the proposed preliminary question in the proceedings by either party. 10 To recite those matters, in my judgment, is sufficient to indicate why the present order sought should not be made. There is a further matter which presently militates against making the order sought. The appeal from the decision of Angel J in Griffiths, if successful, will in any event bring an end to the present application. It is accepted that if the acquisition of the subject land under the LAA is valid, any claim to native title in respect of the subject land will have been extinguished. There will be no purpose in proceeding with the application. The issue is to be resolved in the relatively near future. 11 Further, as noted above, the precise facts upon which the proposed preliminary question is to be determined are not agreed. It is therefore premature to seek the resolution of such a question. It is not clear that there would be agreement on the facts relevant to its determination, or whether even if such agreement were secured, whether the answering of the preliminary question would resolve issues in this proceeding in such a way as to be likely to lead to its overall resolution or to a substantial abridgment of the hearing. It is not clear whether, even if the resolution of the particular issue in this proceeding were to be effected, that would be an end to the proceeding. There is no acknowledgment that the applicants have the necessary connection with the claim area, or any acceptance as to the nature and extent of the native title rights and interests to which they are entitled (if they are entitled to any) in respect of the claim area. It would seem that resolution of the proposed preliminary issue, if answered in one way would simply be an early determination of one question which may arise in the proceedings and that other significant issues which would need to be addressed in any event. If the proposed preliminary issue were to be answered in another way, the answer may have the similar consequences although it would restrict the nature of the claimed native title rights and interests to a non-exclusive set of native title claimed rights and interests. 12 I therefore propose not to accede to the present application at this stage. That is not to preclude the applicants and the respondents together making such an application at some time in the future when the conduct of the application has evolved, but I do not think it is appropriate to do so at present. Whether it will be appropriate to make such an order in the future may depend upon certain of the matters to which I have referred being resolved one way or another, or possibly upon other considerations which I have not needed to address. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.