FEDERAL COURT OF AUSTRALIA Santo v David [2010] FCA 42 Citation: Santo v David [2010] FCA 42 Parties: PANCHO SANTO and CYRIL SANTO v ANNIE DAVID File number(s): QUD 152 of 2007 Judge: LOGAN J Date of judgment: 5 February 2010 Catchwords: ABORIGINES – Application by members of one of the families of a Torres Strait Island People – Prior determination by the Court under the Native Title Act of the existence of communal native title rights and interest in respect of island land, including the subject land – Family part of the People determined to hold native title rights - Construction of dwelling on land alleged to be an act affective native title to be an act affecting native title and invalid – Declaratory and injunctive relief sought – Whether Applicants have standing to bring application – Where native title holder rights and interests held by determination by a prescribed body corporate holding interests on trust – Where prescribed body corporate not a party to application – Held Applicants do not have standing – Held application dismissed Legislation: Native Title Act 1993 (Cth) ss 13, 55, 56, 57, 61, 68, 87, 211, 223, 224, 225, 240A Native Title (Prescribed Body Corporate) Regulations 1999 (Cth) reg 6 Cases cited: Mye on behalf of the Erubam Le v State of Queensland [2004] FCA 1573 applied Town Investments Ltd v Department of Environment [1978] AC 359 cited Bathurst City Council v PWC Properties Pty Limited (1998) 195 CLR 566 cited Mabo v Queensland (No 2) (1992) 175 CLR 1 cited Bodney v Bennell (2008) 167 FCR 84 considered Date of hearing: 2 October 2009 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 44 Counsel for the Applicants: Mr D Honchin Solicitor for the Applicants: Bevan & Griffin Solicitors Solicitor for the Respondent: No appearance by the Respondent IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 152 of 2007 BETWEEN: PANCHO SANTO First Applicant CYRIL SANTO Second Applicant AND: ANNIE DAVID Respondent JUDGE: LOGAN J DATE OF ORDER: 5 FEBRUARY 2010 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application is dismissed. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 152 of 2007 BETWEEN: PANCHO SANTO First Applicant CYRIL SANTO Second Applicant AND: ANNIE DAVID Respondent JUDGE: LOGAN J DATE: 5 FEBRUARY 2010 PLACE: BRISBANE REASONS FOR JUDGMENT 1 Messrs Pancho Santo and Cyril Santo (the Applicants) claim to be members of the Erubam Le people, inhabitants of Erub (Darnley Island) in the Torres Strait. They further claim that a dwelling has been constructed without their permission on Erub on land known as "Zaum" or "Zaum Keriem". For present purposes I assume all of this in their favour. 2 The Applicants allege that this land is traditionally owned and occupied by members of the Santo-Sam family. 3 The local government authority now known as the Torres Strait Regional Authority (the Authority) was initially but is no longer a respondent party to these proceedings. The remaining Respondent is one Annie David (Ms David) who is said to be the occupant of the dwelling. The motivation for the Authority's joinder appears to have been its alleged approval of the construction of the dwelling by Ms David. 4 On the strength of the traditional rights of ownership and occupancy which they allege, the Applicants seek orders for the removal by the Respondent of the dwelling and the restoration of the land to its state prior to the construction of that dwelling. 5 I should record that, when originally instituted, the construction of the dwelling had not been completed and that the Applicants initially sought to prevent its completion. They proved unable to effect service of their application on Ms David prior to the completion of the dwelling which in turn necessitated modification of the relief which they sought. Such is the remoteness of Erub and the attendant limitations in communication of documents that lags which might otherwise seem incongruous in 21st Century litigation can and do occur without evidencing a want of prosecution of a case by litigants or delay by the Court. 6 Ms David was eventually served but has not taken any part thus far in the proceedings. 7 When a party, the Authority challenged the standing of the Applicants to bring the proceedings. Before that application could be heard, agreement was reached between it and the Applicants to orders whereby they discontinued proceedings against the Authority. Nonetheless, in reviewing the application it seemed to me that I should determine as a preliminary question whether the Applicants had standing and whether the proper parties had been joined. I directed the Applicants to show cause accordingly. 8 For the reasons which follow the conclusion which I have reached is that the Applicants do not have standing to bring the proceedings and that they should be dismissed. 9 The application refers to and indeed calls in aid as one asserted source of jurisdiction the native title determination (the determination) under the Native Title Act 1993 (Cth) (Native Title Act) made by this Court in respect of Erub in Mye on behalf of the Erubam Le v State of Queensland [2004] FCA 1573. The Applicants accept that the land known as "Zaum" or "Zaum Keriem" forms part of the land which is the subject of the determination. Such is the operation of the Native Title Act that in that determination and that acceptance lies the flaw in the Applicants' conception that they have standing to bring these proceedings. That is so even though the Santo family is one of those recorded in the determination as being part of the Erubam Le people. 10 The determination was made under s 87 of the Native Title Act. In making that determination Cooper J recorded (Mye on behalf of the Erubam Le v State of Queensland at [10]) his satisfaction that: (a) native title exists in relation to the lands and waters identified in the draft determination agreed to by the parties; (b) the members of the claimant group referred to as the Erubam Le are members of a society of peoples descended from the Torres Strait Islander peoples who as a society at the time of sovereignty occupied the lands and waters identified in the draft determination in accordance with traditional laws and customs acknowledged and observed by them; (c) the laws and customs acknowledged and observed by the society at sovereignty are continued to be acknowledged and observed by the members of the claim group and have been acknowledged and observed by their predecessors from the time of sovereignty to the present time; (d) the members of the claim group and their predecessors through their continued acknowledgement and observance of the traditional laws and customs which existed at the time of sovereignty, have maintained since that time a connection to the determination area; (e) the native title rights and interests in the determination area are held by the persons who are or are entitled to be or become members of the claim group called the Erubam Le; and (f) the nature and extent of the exclusive and non-exclusive native title rights and interests in relation to the determination area are as set out in the agreed draft determination. 11 In the order made as a consequence of the determination it is recited (para 4 of the order), inter alia, that, subject, materially, to para 5 of that order, 'the native title is a right to possession, occupation, use and enjoyment of the determination area to the exclusion of all others'. The effect of para 9 of that order was the right so qualified was to take effect upon the registration on the Register of Indigenous Land Use Agreements of an indigenous land use agreement between it and George Mye dated 22 November 2004. One of the qualifications on native title for which para 5 of the order provides is that indigenous land use agreement. The Applicants do not submit that agreement is relevant. That agreement was registered on 24 May 2005. On and from then the order has had effect. 12 One of the requirements (s 55) of the Native Title Act in respect of the making of the determination was that, either at the time of making it or as soon as practical thereafter, the Court make such determinations as were required by s 56 and s 57. It is s 56 which is presently relevant. That section required that one of the determinations that the Court make was whether the native title was to be held in trust and, if so, by whom. In consequence, the effect of para 11 of the Court's order in the circumstances was that, on and from 24 May 2005, the native title determined to exist was to be held in trust by the Erubam Le Traditional Land and Sea Owners (Torres Strait Islanders) Corporation for the benefit of the Native Title Holders as described in Sch 3 of that order. Such persons, as noted, included members of the Santo family. For the purposes of s 56 of the Native Title Act, the Erubam Le Traditional Land and Sea Owners (Torres Strait Islanders) Corporation is a prescribed body corporate. 13 That, materially, the land on Erub known as "Zaum" or "Zaum Keriem" was held by this prescribed body corporate as a result of the native title determination and orders made in Mye on behalf of the Erubam Le v State of Queensland was accepted by the Applicants. Nonetheless, and rhetorically, they posed a series of questions by the answers to which, in submissions, they sought to explain how it was that they personally had standing to claim the relief sought against Ms David. The questions which the Applicants posed were these: (a) Does placing native title rights and interests in trust mean that the common law native title holder retains no "interests"? (b) If, as the Court's order consequent upon the determination recites, the native title rights and interests are held in trust by the prescribed body corporate, what does that mean precisely? Has there been a movement from each individual native title holder to the prescribed body corporate? If that is so, each native title holder now does not hold native title, the prescribed body corporate does. (c) Has the native title holder's right to pass on their land been lost by the transfer to the trustee? 14 The Applicants posed these questions against the background of a reminder that s 24OA of the Native Title Act provided that, unless that Act otherwise provided, a future act was invalid to the extent that it affected native title. The construction of the dwelling occupied by Ms David was, they submitted, an invalid future act. 15 That the Native Title Act envisaged that an individual must retain some rights even where a prescribed body corporate is appointed is said by the Applicants to be evident from and exemplified by a consideration of what would be a literal effect of reading the protection afforded by s 211 of the Native Title Act to the undertaking of certain classes of activity by "native title holders", as defined by s 224 of the Native Title Act, in the exercise of native title rights. 16 Section 224 of the Native Title Act provides: 224 Native title holder The expression native title holder, in relation to native title, means: (a) if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust—the prescribed body corporate; or (b) in any other case—the person or persons who hold the native title. 17 Section 211 of that Act provides: 211 Preservation of certain native title rights and interests Requirements for removal of prohibition etc. on native title holders (1) Subsection (2) applies if: (a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and (b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and (ba) the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and (c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders. Removal of prohibition etc. on native title holders (2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so: (a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and (b) in exercise or enjoyment of their native title rights and interests. Note: In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application. Definition of class of activity (3) Each of the following is a separate class of activity: (a) hunting; (b) fishing; (c) gathering; (d) a cultural or spiritual activity; (e) any other kind of activity prescribed for the purpose of this paragraph. 18 For completeness, the presently material part of the definition of "native title" or "native title rights and interests" in s 223 of the Native Title Act ought also to be set out: 223 Native title Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. Hunting, gathering and fishing covered (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests. 19 The prescription in s 225 of the Native Title Act as to what is entailed in a determination of native title under that Act ought also to be set out: 225 Determination of native title A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests. 20 The Applicants submit that, if s 211 of the Native Title Act were to be read literally, then, in light of the definition of "native title holder" in s 224 of the Native Title Act, only activities carried on by the prescribed body corporate would enjoy the protection for which that section provides. It is unlikely, they submit, that Parliament intended so to restrict the protection afforded by s 211 in those cases where native title is determined to be held in "trust" by a prescribed body corporate. A more likely construction of s 211, they submit, is that individuals are protected by s 211 when engaging in the activities mentioned in that section even when native title is held in "trust" by a prescribed body corporate. Hence they submit that the holding of native title on "trust" by such a body corporate, as the Act envisages can be the result of a determination by the Court, must entail a type of "trust" quite different than general law conceptions of a trust. 21 The Applicants drew attention to Lord Diplock's statement in Town Investments Ltd v Department of the Environment [1978] AC 359 at 382, cited with approval in the High Court in Bathurst City Council v PWC Properties Pty Limited (1998) 195 CLR 566 at [47], "that the term 'trust' is not a term of art in public law". They further submitted that reg 6 of the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth) (the Native Title (Prescribed Body Corporation Regulations), which sets out the functions of a prescribed body corporate, did not, in any event, cover the field in respect of who might enforce a native title right which the Court had determined under the Native Title Act to exist. 22 The Applicants use these propositions to exemplify a wider submission, which is that, even after the Court has made a native title determination under s 87 of the Native Title Act and consequential orders have been pronounced and taken effect such that native title in respect of particular land is held in trust by a prescribed body corporate, individual native title rights can nonetheless subsist at common law such that the holders of those rights have standing to seek to restrain the undertaking of activities inconsistent with those rights. 23 In amplification of their claim to standing, the Applicants drew attention to certain passages in the judgement of Brennan J (as his Honour then was) in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo No 2). Of these, the following should be noted: Where a proprietary title capable of recognition by the common law is found to have been possessed by a community in occupation of a territory, there is no reason why that title should not be recognised as a burden on the Crown's radical title when the Crown acquires sovereignty over that territory. The fact that individual members of the community, like the individual plaintiff Aboriginals in Milirrpum (1971) 17 FLR, 141 at 272, enjoy only usufructuary rights that are not proprietary in nature is no impediment to the recognition of a proprietary community title. Indeed, it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title. There may be difficulties of proof of boundaries or of membership of the community or of representatives of the community which was in exclusive possession, but those difficulties afford no reason for denying the existence of a proprietary community title capable of recognition by the common law. That being so, there is no impediment to the recognition of individual non-proprietary rights that are derived from the community's laws and customs and are dependent on the community title. A fortiori, there can be no impediment to the recognition of individual proprietary rights. (at 51-52) Though not cited by the Applicants, the first sentence of the paragraph immediately following this passage in His Honour's judgement should also be set out: Once it is accepted that indigenous inhabitants in occupation of a territory when sovereignty is acquired by the Crown are capable of enjoying — whether in community, as a group or as individuals - proprietary interests in land, the rights and interests in the land which they had theretofore enjoyed under the customs of their community are seen to be a burden on the radical title which the Crown acquires. (at 52)] [W]here an indigenous people (including a clan or group), as a community, are in possession or are entitled to possession of land under a proprietary native title, their possession may be protected or their entitlement to possession may be enforced by a representative action brought on behalf of the people or by a sub-group or individual who sues to protect or enforce rights or interests which are dependent on the communal native title. Those rights and interests are, so to speak, carved out of the communal native title. A sub-group or individual asserting a native title dependent on a communal native title has a sufficient interest to sue to enforce or protect the communal title. A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community's lands. (at 61-62) [Footnote references omitted] 24 As I understood it, these passages were cited in support of a submission that, even having regard to operation of the Native Title Act in light of the determination, the Applicants retained standing to seek the relief claimed either because they enjoyed native title rights in respect of the land which were vested in them individually or, even if the native title were to be regarded as communal and that their rights were dependent upon that communal native title, they, as members of the Erubam Le people, were nonetheless entitled to sue to enforce those dependent individual rights. 25 The native title rights and interests which in Mye on behalf of the Erubam Le v State of Queensland the Court held to exist in respect of land on Erub, which materially included the subject land, were found to be held by "the persons who are or are entitled to be or become members of the claim group called the Erubam Le". It was not, for example, held that the Applicants as individuals held any native title right or interest in the subject land. 26 Informed by the knowledge that it was possible under the common law of Australia for native title rights and interests to be recognised and viewed at a level of abstraction which did not include the operation of the Native Title Act having regard to the determination, it is not impossible to conceive how, at least arguably, in the context of a proceeding for the recognition by judicial declaration of particular native title rights and interests, the Applicants might have standing also to claim relief of the kind sought in these proceedings. Were it proved that, at the time of the onset of local British sovereignty a body of traditional laws and customs of the Erubam Le people existed, that, under those laws and customs there was provision for the ownership or enjoyment of rights in respect of land by an individual or a particular family, as opposed to communally, that, under those laws and customs, either the Applicants or at least their family were regarded as the traditional owners of or having rights in respect of the land known as "Zaum" or "Zaum Keriem" to the exclusion of all others, that thereafter there had been uninterrupted "connection" by the Applicants and their predecessors and if no act of State had hitherto occurred in respect of that land which was inconsistent with that ownership or continued existence of those rights, the Applicants might well have standing to seek injunctive relief as against a trespasser to what was found to be their land or against a person otherwise violating their native title rights in respect of that land. 27 Having regard to Mr Pancho Santo's affidavit filed in these proceedings, I suspect, strongly, that he conceives that he or at least he and his family have just this kind of native title right or interest in respect of the land known as "Zaum" or "Zaum Keriem". The assertion of such an individual or familial native title right or interest in respect of particular land is not so very different from the assertions made by the plaintiffs in respect of particular land on another Torres Strait island, Mer (one of the Murray Islands) in Mabo No 2. Mabo No 2 wasthough a case decided under the common law, prior to the Native Title Act. 28 Even under the Native Title Act and prior to the making of the determination it may also be that the Applicants could have sought a determination in respect of the individual or familial native title rights or interests which they conceive they have in respect of the land known as "Zaum" or "Zaum Keriem" and, as an associated matter, a claim for related interlocutory or final injunctive relief as against a person said to be acting in violation of the asserted rights or interests. 29 Having regard to certain remarks in Mabo (No 2) in which native title is referred to as "communal title" and to the language of s 223 and s 225 of the Native Title Act, such an application might have raised starkly whether it was indeed, a "fundamental principle" that native title rights and interests had a communal character or whether, as, after a rehearsal of pertinent authority, the Full Court observed in Bodney v Bennell (2008) 167 FCR 84 at [151], the Court should refrain from turning that "fundamental principle" into an "inveterate rule" 30 It is neither necessary nor desirable further to explore such matters. The existence of the determination is a given. That being so, the Native Title Act has particular meaning and effect. The questions posed by the Applicants in submissions should not be allowed to distract from consideration of this meaning and effect. 31 The determination is, for the purposes of the Native Title Act an "approved determination" (qv s 13). That being so, s 68 of the Native Title Act has this stated effect, which is that this Court must not: (a) conduct any proceeding relating to an application for another determination of native title; or (b) make any other determination of native title; in relation to that area or to an area wholly within that area, except in the case of: (c) an application as mentioned in subsection 13(1) to revoke or vary the first determination; or (d) a review or appeal of the first determination. 32 The Applicants have sought neither to revoke nor vary the determination; much less is the present in any way an application for the review of or an appeal against that determination. That is to say nothing of an absence of any compliance with the manner and form requirements of an application for the revocation or variation of an approved application (qv s 61(1)), which include a list of those who would have standing to seek such relief. The Applicants do not fall within any of the listed classes of person who have standing. 33 Also to be noted is s 61A(1) of the Native Title Act, which also provides that an application must not be made in relation to an area for which there is an approved determination of native title. 34 The considerations just mentioned transcend a question of standing. They go to an absence of jurisdiction at all to entertain the application. 35 Even putting this aside and focussing on the determination itself, the native title which the Court has determined to exist is communal, not individual in character. It bears repeating that it is held "by the persons who are or are entitled to be or become members of the claim group called the Erubam Le". The land known as "Zaum" or "Zaum Keriem" is so held. It is so held for such persons in what the Native Title Act terms "in trust" by the Erubam Le Traditional Land and Sea Owners (Torres Strait Islanders) Corporation, not by the Applicants or even by the Santo family. 36 The Native Title Act did not dictate that the native title rights and interests found to exist at Erub had to be held in trust by a prescribed body corporate. That the native title was determined to be so held must be taken to have flowed from a nomination made by a representative of the persons whom the court proposed to include in the determination of native title as native title holders, i.e. the persons s 56(2) terms "the common law holders". Had such a nomination not been given, it would have fallen to the Court to determine that the native title rights and interests were held by those "common law holders (s 56(2)(c)). 37 The native title having been determined to be held in trust by the Erubam Le Traditional Land and Sea Owners (Torres Strait Islanders) Corporation, it is that prescribed body corporate, not the Applicants, which has the standing to seek the vindication or enforcement of the native title as determined and held in trust by it by, for example, seeking a declaration that a particular action affecting that native title is an invalid act and consequential relief. 38 The institution of such a proceeding falls within the functions consigned to a prescribed body corporate by reg 6 of the Native Title (Prescribed Bodies Corporate) Regulations, which are the regulations made for the purposes of s 56(3) of the Native Title Act. In providing that, on the making of a determination by the Court, the nominated prescribed body corporate holds in trust the rights and interests from time to time comprising the native title, s 56(3) of the Native Title Act leaves no direct, residual or individual role for persons such as the Applicants in relation to litigation of the kind just described. In that context, the role envisaged by those regulations for common law holders such as members of the Santo family is indirect and found in an ability, evident in reg 6(1)(e) of the Native Title (Prescribed Body Corporate) Regulations, for the common law holders to direct the prescribed body corporate to perform a function relating to native title. Contrary to the Applicants' submission, the effect of the Native Title Act and these regulations is comprehensive so far as any question as to who has the requisite standing. The institution of such a proceeding is but of the one managerial functions consigned to a prescribed body corporate by reg 69(1)(a) Native Title (Prescribed Body Corporate) Regulations. 39 That the term "trust" is not a term of art in public law may, with respect, readily be accepted. That acceptance does not alter the comprehensive managerial function consigned to a prescribed body corporate in relation to the determined native title rights and interests. Nor is it inconsistent with those rights and interests being held "in trust". 40 No indication of an enduring role as applicants in the institution of proceedings of the kind just described is exemplified by s 211 of the Native Title Act. Read in context, the reference in s 211(2) to the "native title holders" means no more than, where that "native title holder" as defined is a prescribed body corporate, then those on whose behalf the native title is held in trust by that body corporate are not prohibited. 41 The Native Title Act did not leave some residual, common law role for the Applicants to play manifested by an ability to seek the relief specified in the application. To the contrary, in its provision for native title rights and interests as determined in accordance with its provisions to be held in trust by a prescribed body corporate and in its provision for the prescription of functions for such a body, the Native Title Act and the Regulations relevantly made there under leaves no common law role for the Applicants. 42 The Applicants do not have standing. There has been no application by the Erubam Le Traditional Land and Sea Owners (Torres Strait Islanders) Corporation for joinder as an applicant party. If there is to be any agitation as to whether there is any act invalidly affecting the native title rights and interest held in trust by that body corporate that is a matter for the Erubam Le Traditional Land and Sea Owners (Torres Strait Islanders) Corporation. 43 So to conclude involves no determination, one way or the other, as to whether Ms David's occupancy of the subject land is or is the result of an act that invalidly affects native title. I expressly refrain from expressing any opinion on that subject. 44 For these reasons, the application must be dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 5 February 2010