Sakurai v Northern Territory of Australia [2004] FCA 971

FEDERAL COURT OF AUSTRALIA

Sakurai v Northern Territory of Australia [2004] FCA 971

NATIVE TITLE – interaction between the Northern Territory Aboriginal Sacred Sites Act (NT) and the Native Title Act 1993 (Cth) – whether these two Acts are inconsistent – whether the extinguishment of native title rights affects the rights recognised and protected by the Northern Aboriginal Sacred Sites Act (NT)

NativeTitle Act 1993 (Cth) Northern Territory (Self-Government Act 1978 (Cth) Northern Territory Aboriginal Sacred Sites Act (NT) s 29 Mining Act (NT)

Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 referred to Glennan v Commissioner of Taxation (2003) 198 ALR 250 cited Amrit Lal Narain v Parnell (1986) 9 FCR 479 cited Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 cited Northern Territory of Australia v GPAO (1999) 196 CLR 553 cited

MOTOO SAKURAI v NORTHERN TERRITORY OF AUSTRALIA ANDGABRIEL HAZELBANE & VALERIE TAMBLING NTD 7 of 2004 MANSFIELD J 28 JULY 2004 ADELAIDE (HEARD IN DARWIN)

IN THE FEDERAL COURT OF AUSTRALIA

NORTH TERRITORY DISTRICT REGISTRY NTD 7 OF 2004

BETWEEN: MOTOO SAKURAI

APPLICANT

AND: NORTHERN TERRITORY OF AUSTRALIA

FIRST RESPONDENT

GABRIEL HAZELBANE & VALERIE TAMBLING

SECOND RESPONDENTS

JUDGE: MANSFIELD J

DATE: 28 JULY 2004

PLACE: ADELAIDE (HEARD IN DARWIN)

REASONS FOR JUDGMENT 1 North of the Arnhem Highway on either side of the Mary River and near the Bark Hut Inn are three sites recognised as being sacred under the Northern Territory Aboriginal Sacred Sites Act (NT) (Sacred Sites Act). The sites are identified by the following numbers: 5272-24, 5272-25, and 5272-26 and were registered with the Aboriginal Areas Protection Authority (the AAPA) under s 29 of the Sacred Sites Act on 3 July 1991, 1 May 1991 and 26 March 1992 respectively. The AAPA is established under s 5 of the Sacred Sites Act. 2 In the vicinity of the three sacred sites, the applicant has been granted two exploration licences under the Mining Act (NT) (Mining Act), identified as EL 23791 on 21 January 2004 and EL 23921 granted on 18 December 2003. 3 Matter D 6033 of 2000 is an application under s 61 of the Native Title Act 1993 (Cth) (Native Title Act) for the determination of native title filed in the Court on 22 December 2000 and accepted for registration by the National Native Title Tribunal on 15 February 2001. It is called the 'Old Mt Bundy' native title claim. It also relates to an area of land in the same general vicinity. 4 It is the physical proximity of these three rights and interests or potential rights and interests in land that have seen the applicant bring this matter before the Court. 5 The application is purportedly made under the Native Title Act (ss 81, 213, 223, 32, 44H). The applicant's principal relief is expressed in the following terms: 'Native Title is characterised by the general law of Australia as a bundle of rights (High Court decision Western Australia v Ward 2002). The question of law and the contentions by the Applicant are that certain Aboriginal sacred sites created under the Northern Territory Aboriginal Sacred Sites Act constitute one right within the above bundle of rights and, therefore, native title rights and interests which cannot be claimed under the Sacred Sites Act. Those particular sacred sites are inconsistent with the Native Title Act.' 6 As I understood the applicant, he is seeking a declaration that the registration of the three sacred sites under the Sacred Sites Act is somehow inconsistent with the provisions of the Native Title Act and that, therefore, subject to any determination of native title in the Old Mt Bundy native title claim, he should not be restricted in the exercise of his exploration licences by the existence of the registered sacred sites or alternatively that the registration of the three sacred sites under the Sacred Sites Act is somehow invalidated or rendered ineffective by the bringing of the Old Mt Bundy native title claim. 7 The applicant's exploration licences clearly oblige him to give effect to the registration of sacred sites under the Sacred Sites Act. 8 The full title of the Sacred Sites Act explains that it seeks to effect a practical balance between the need to preserve and enhance Aboriginal cultural tradition and the desire for economic, cultural and social advancement. Part III of the Sacred Sites Act provides a procedure by which sites are protected. Under s 19B, if a person wishes to carry out work on a sacred site, that person must first apply to the AAPA for an Authority Certificate. Division 1A of Pt III explains the steps that must be taken for the issue of an Authority Certificate. If these requirements are satisfied, an Authority Certificate is granted under s 22 of the Sacred Sites Act. Once an Authority Certificate is granted, the holder can enter onto and do such things on the land which has been registered as a sacred site as are reasonably necessary for carrying out the work for which the Authority Certificate was granted: s 29 of the Sacred Sites Act. If a person is refused an Authority Certificate, or if the AAPA does not make a decision within a reasonable time, that person may apply to the Minister for review of the decision, action or failure under Div 3 of Pt III of the Sacred Sites Act. The Minister then has the power to issue a Ministerial Certificate, which has the same effect as an Authority Certificate: s 32. 9 In this matter there is no evidence to suggest that the applicant has applied for an Authority Certificate in respect of any of the sacred sites to which his application refers. 10 Part IV of the Sacred Sites Act contains the offences and penalties provisions. Section 33 makes it clear that, unless a person has an Authority Certificate or a Ministerial Certificate under the Sacred Sites Act, that person may not enter upon or remain on a sacred site. Section 34 creates an offence for carrying out work on a sacred site. Section 35 forbids persons from desecrating sacred sites. Each of these sections contains penalty provisions. 11 The effect of registration of a sacred site under the Sacred Sites Act, and the terms of the Sacred Sites Act for those who commit an offence in respect of it, clearly restrict the applicant as to how he may exercise his rights under his exploration licences. Section 23 of the Mining Act provides that a holder of an exploration licence is subject to the laws of the Northern Territory. These laws include the Sacred Sites Act. Furthermore, under s 24A of the Mining Act, an exploration licence is subject to conditions imposed by the Minister. These conditions appear in the Second Schedule to the applicant's exploration licences. Each licence contains the same provisions under the heading 'site protection' as follows: '7. All exploration personnel and their contractors and agents shall be instructed on the legal necessity to protect sacred sites and other significant archaeological sites and structures which may exist within the licence area. 8. Prior to carrying out any work in the licence area the Licensee must consult with the Aboriginal Areas Protection Authority and inspect the Register of Sacred Sites. A licensee wishing to carry out work may apply for an Authority Certificate.' That makes it clear that the holder of an exploration licence in the position of the applicant cannot carry out any work under the exploration licence that might interfere with the sacred sites on the area which is the subject of the exploration licence. 12 By letter of 19 December 2003 (concerning EL 23921) from a delegate of the Minister for Business, Industry and Resource Development, and by a letter in relevantly the same terms of 23 January 2004 (concerning EL 23791) from a delegate of the Minister for Mines and Energy, the applicant was informed: 'The licence is granted subject to the Mining Act, the regulations thereunder and all other laws of the Northern Territory as are applicable. In particular, your attention is drawn to the Northern Territory Aboriginal Sacred Sites Act which may require you to consult with the Aboriginal Areas Protection Authority prior to any ground disturbance.' It is plain that the applicant was made aware of those conditions when the exploration licences were granted. 13 It is apparently in order to circumvent or avoid giving effect to those obligations under the Sacred Sites Act in respect of the areas which comprise the three registered sacred sites which are on or partly on the areas the subject of his exploration licences that the applicant has initiated this action. 14 The helpful submissions of Mr Storey of counsel for the first respondent and of Mr Moharich of counsel for the second respondents identified the relief which the applicant is seeking as being: (1) a declaration that a sacred site registered pursuant to s 29 of the Sacred Sites Act is inconsistent with the Native Title Act, and on the basis of this inconsistency a declaration should be made that the sacred sites so registered or the registration of them is of no force and effect; and alternatively (2) a declaration that common law extinguishment of native title rights and interests can have the effect of also extinguishing the traditional laws and customs which give rise to those rights and interests in such a way that a declaration under s 29 of the Sacred Sites Act is ineffective. 15 It was unclear to me whether the second of those two propositions was made on the evidential basis of the Old Mt Bundy native title claim having been made, or upon the assumption that it will result in a finding that native title existed or exists and has been extinguished in the native title claim area. 16 To understand whether his arguments, if correct, would have the effect which he seeks (namely to be able to exercise his rights under his exploration licences free of the obligation to respect or to give effect to the sacred sites) it is desirable to identify a little more clearly the geographical relationship of the areas of the exploration licences, the sacred sites, and the area of the Old Mt Bundy native title claim. 17 The Old Mt Bundy native title claim seeks the determination of native title rights and interests with respect to an area of land to the west of the Mary River. It is an extensive area. A portion of its claim area on its eastern side is proximate to the Mary River in the vicinity of the three sacred sites and of the two exploration licences. The Arnhem Highway runs through the claim area at this point. 18 EL 23792 is largely, but not entirely, to the west of the Mary River in the same general area. It too is intersected in part in its southern-most sections by the Arnhem Highway. About one third of the north-western section of the exploration licence area occupies the same area as part of the Old Mt Bundy native title claim area. 19 EL 23792 also occupies or is in respect of an area of land in which part, but not all, of registered sacred site 5272-26 exists. The south-western section of that registered sacred site is outside the area of EL 23792, and is also outside the claim area of the Old Mt Bundy native title claim. Of the balance of the area of that registered sacred site, which is in EL 23792, the western section is also in the area of the Old Mt Bundy native title claim area. 20 Consequently, in respect of registered sacred site 5272-26, its area is . partly outside both the Old Mt Bundy native title claim area and EL 23792 . partly inside both the Old Mt Bundy native title claim area and EL 23792, and . partly inside EL 23792, but outside the Old Mt Bundy native title claim area. 21 There is a further, smaller registered sacred site 5272-25 which is a little to the east and is entirely within EL 23792. It is to the east of Mary River. It is not within any part of the Old Mt Bundy native title claim area. 22 Adjacent to the area covered by EL 23972 to its east and north is the area of EL 23921. Only a small section of its area (part of its western extremity) occupies an area which is also subject to the Old Mt Bundy native title claim area. 23 EL 23921 also occupies an area of land which contains registered sacred site 5272-24. That registered sacred site is, like 5272-25 in relation to EL 23792, entirely within the area of EL 23921. It is, however, remote from any part of the claim area of the Old Mt Bundy native title claim. 24 The first proposition of the applicant is that, somehow, the Native Title Act is inconsistent with s 29 of the Sacred Sites Act. The Sacred Sites Act was enacted in 1989 prior to the Native Title Act. Alternatively, it is suggested that a declaration of a sacred site pursuant to s 29 of the Sacred Sites Act is an act inconsistent with the Native Title Act, at least since 1993. 25 In either event, as the contention appears to give rise to an argument as to inconsistency between the Sacred Sites Act or certain acts done under it and the Native Title Act, and therefore inoperability of the Sacred Sites Act to the extent of the inconsistency, by reason of s 109 of the Constitution, the possibility of the application of s 78B of the Judiciary Act 1903 (Cth) arises. In this matter, I do not consider that it does so. The first reason is simply that, after considering his position, the applicant did not pursue the contention. In second place, upon analysis, clearly no issue of inconsistency arises. Section 8 of the Native Title Act provides expressly: 'This Act is not intended to affect the operation of any law of a State or Territory that is capable of operating concurrently with this Act.' Any suggestion that the power to make a declaration of a sacred site under s 29 of the Sacred Sites Act or such a declaration defines rights or obligations in a way which is incapable of operating concurrently with the Native Title Act is evidently erroneous. I do not think that the contention, even if pursued, would be of sufficient merit to 'involve' a matter arising under the Constitution or involving its interpretation: see e.g. per Toohey J in Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74, a passage endorsed by Gummow, Hayne and Callinan JJ in Glennan v Commissioner of Taxation (2003) 198 ALR 250 at 253; [14]. For those reasons, I do not think that it has been made to appear that s 78B is enlivened in the present circumstances: see Amrit Lal Narain v Parnell (1986) 9 FCR 479. 26 The High Court in Northern Territory of Australia v GPAO (1999) 196 CLR 553 (GPAO) addressed the circumstances in which an enactment of the Northern Territory legislative assembly in accordance with the legislative power under s 6 of the Northern Territory (Self Government) Act 1978 (Cth) (Self-Government Act) was exercised might be effected in its continued operation by a subsequent Commonwealth enactment. In that case, the issue concerned the effect upon the continued operation of the Community Welfare Act 1983 (NT) by reason of the Family Law Reform Act 1995 (Cth). In the joint judgment of Gleeson CJ and Gummow J in GPAO at 580 – 581; [53] – [54] their Honours said: 'This appeal concerns the impact upon a law made by the Legislative Assembly of the Northern Territory of a law of the Commonwealth in force in that Territory, and enacted after the territorial law. This situation differs both from those described above and from the regime established by s 109 of the Constitution. Section 109 deals with laws made by the legislatures of the Commonwealth and the States, each having its place in the federal structure allotted by the text of the Constitution itself. The decided cases show "two distinct bases for the conclusion of inconsistency within the meaning of 109", namely "a textual collision" and the manifestation of an intention that the law of the Commonwealth be the exclusive law on the topic "both for what it forbids and what it allows". The question raised by s 109 is "not between powers, but between laws made under powers". The terms of s 109 are not addressed to the relationship between laws of the Commonwealth and those enacted by legislatures in the territories. The Self-Government Act, which gives life to and sustains the Legislative Assembly and the laws made by it, is a law of the Commonwealth and, as such, itself is subject to express or implied repeal or amendment by its subsequent Commonwealth laws. In addition, a later law of the Commonwealth may expressly override an existing law made by the Legislative Assembly of the Northern Territory. Such a later law of the Commonwealth is a law made for the government of this Territory within the meaning of s 122 of the Constitution …' 27 In my view there is clearly no inconsistency between the earlier Sacred Sites Act of the Northern Territory and the subsequent enactment of the Native Title Act. Section 29 of the Sacred Sites Act is capable of operating concurrently with the Native Title Act. Section 4(1) of the Native Title Act provides that it is to recognise and protect native title, and so that native title cannot be extinguished contrary to the Act. Section 223 defines the term native title. Consequently, the Native Title Act is an enactment that provides for the recognition of rights and interests recognised by the common law which are possessed under traditional laws and customs of Aboriginal peoples. There is no suggestion that it confines or defines in any way rights or interests of Aboriginal people, whether they arise by virtue of traditional law and custom or by statute or both, (including rights which may arise under the s 29 of the Sacred Sites Act). Section 29 of the Sacred Sites Act does not provide any foundation for thinking that it confines or defines rights and interests recognised by the common law possessed under the traditional laws and customs of Aboriginal people so as to be incapable of operating concurrently with the Native Title Act. It is necessary simply to look to the preamble to the Sacred Sites Act, and to the definitions of 'sacred site', 'Aboriginal traditional' and 'custodian' in s 3 of the Sacred Sites Act to reach that conclusion. The precise way in which sacred sites come to be registered is discussed above. The proponent of any proposed work in respect of a sacred site area may apply to the Aboriginal areas protection authority for a certificate that no sacred site will be affected by the proposed work, or that an agreement has been reached with the custodians regarding the proposed work (s 22). Such a certificate then operates as a defence to a prosecution for interference with a site. Section 27 permits the custodians of a sacred site to apply for inclusion of a site on the register maintained by AAPA (s 27) and that body then decides whether to place a site on the register after consultation with the custodians and owners at law of the land comprised in the site (ss 28 and 29). As noted, there are then a series of provisions creating offences for engaging in conduct inconsistent with recognition of the registered sacred site. 28 It is therefore apparent that the Sacred Sites Act provides for the existence of a sacred site to be recognised, as a matter of law, from its sacredness to Aboriginal people or its significance under Aboriginal tradition. Registration facilitates the efficacy of protection afforded under the Sacred Sites Act. The only right which is afforded to custodians of the sacred site is the right, by agreement under s 22, to agree to the issue of a certificate in circumstances where such might otherwise not be issued. Such a right cannot either confine or define native title rights, but only operates to ensure compliance with the Sacred Sites Act. 29 In the absence of any inconsistency with the Native Title Act, there is no basis to read down the grant of legislative power conferred by s 6 of the Self-Government Act, so as to support the applicant's first proposition. As registered sacred site 5272-25 in the area of EL 23792, and registered sacred site 5272-24 in the area of EL 23921, are each outside the Old Mt Bundy native title claim area, they cannot be affected by the bringing, or the outcome, of that claim. The applicant must therefore recognise and give effect to those two sacred sites as required by the Mining Act and by his exploration licences. The same applies to all but the north-western portion of the area of registered sacred site 5272-26, as that is the only portion of that sacred site area which overlaps the claim area of the Old Mt Bundy native title claim. 30 The second proposition of the applicant arises from the Old Mt Bundy native title claim. Hence, it concerns only the north-western portion of registered sacred site 5272-26. It involves the assertion that common law extinguishment of native title rights and interests can have the effect of also extinguishing the traditional laws and customs which give rise to those rights and interests in such a fashion that a declaration under s 29 of the Sacred Sites Act is also ineffective. 31 To state the proposition is to demonstrate that it is premature. The present application is made at a point in time when there has been no determination of native title rights and interests in the Old Mt Bundy native title claim. There can be no operational inconsistency where there has not been any establishment of any inconsistent rights. 32 Moreover, the assertion of rights by the communal claim group in the Old Mt Bundy native title claim, in its terms, does not assert rights inconsistent with the protection that registration of sacred site 5272-26 gives. The Old Mt Bundy native title claim seeks determination of the existence of native title rights and interests in the claim group in relation to the claim area including rights: (a) to possess, occupy, use and enjoy the area claimed to the exclusion of all others; (b) to speak for and to make decisions about the use and enjoyment of the application area; (c) to reside upon and otherwise to have access to and within the application area; (d) to control the access of others to the application area; (e) to use and enjoy the resources of the application area; (f) to control the use and enjoyment of others of the resources of the application area; (h) to maintain and protect places of importance under traditional laws, customs and practices in the application area. 33 The claimants in the Old Mt Bundy native title claim (the second respondents) acknowledge in the application that their native title rights and interests are subject to all valid and current laws of the Commonwealth and of the Northern Territory, and that the exercise of their native title rights and interests might be regulated, controlled, curtailed, restricted, suspended or postponed by reason of the existence of valid concurrent rights and interests in others by or under such laws. Hence, if the Old Mt Bundy native title claim were to result in a determination of native title in the terms sought, that determination would have effect without impinging upon the effectiveness of the declaration under s 29 of the Sacred Sites Act with respect to registered sacred site 5272-26. 34 The further step in the applicant's argument was to assert that if those claimed native title rights and interests were found to have been extinguished, then their extinguishment must also have resulted in the extinguishment of any effective declaration of registered sacred site 5272-26 under the Sacred Sites Act. 35 Native title may be extinguished by the tide of history (Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 per Brennan J at 60), or by the grant by the Crown of inconsistent rights to a third party in exercise of its radical title following the assertion of sovereignty. The Sacred Sites Act operates not with respect to Aboriginal tradition recognised by the common law, but with respect only to notions of sacredness and significance under Aboriginal tradition. Thus, a site can maintain its status as significant under Aboriginal tradition irrespective of whether any native title right under the Native Title Act with respect to the site has been extinguished at common law and so has become incapable of recognition under the Native Title Act. The existence of a sacred site under the Sacred Sites Act requires no satisfaction of a statutory test of traditional ownership as prescribed under s 223 of the Native Title Act. The recognition of pre-existing rights under the Native Title Act is remote from the process of statutory recognition and protection of sites of significance under Aboriginal tradition pursuant to the Sacred Sites Act. The Sacred Sites Act concerns the protection of sites of significance according to Aboriginal tradition, and is intended to apply to land in the Northern Territory regardless of tenure or the existence of native title at law. 36 Accordingly, even on the hypothesis put forward by the applicant, I do not consider that the status of the registration of sacred site 5272-26 under the Sacred Sites Act will be affected. It is of course clear that the hypothesis put forward by the applicant may not be realised. The Old Mt Bundy native title application has not been listed for hearing. Its outcome is at present unknown. No order should presently be made as sought by the applicant which anticipates its outcome when that outcome is uncertain. 37 In my view, the application to the extent that it relates directly to that part of registered sacred site 5272-26 which occupies the same area as part of the claim area in the Old Mt Bundy native title claim and the same area as part of the area to which EL 23792 must fail. 38 For those reasons, as the applicant in effect acknowledged in the course of his contentions, the application must fail. It was accordingly dismissed. To the extent that the applicant otherwise wishes to preserve and protect his rights or interests under his exploration licences, he may apply to become a party to the Old Mt Bundy native title claim under s 84 of the Native Title Act. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.