FEDERAL COURT OF AUSTRALIA Agius v State of South Australia [2012] FCA 714 Citation: Agius v State of South Australia [2012] FCA 714 Parties: GARTH AGIUS AND OTHERS v STATE OF SOUTH AUSTRALIA AND OTHERS File number: SAD 6001 of 2000 Judge: MANSFIELD J Date of judgment: 5 July 2012 Date of hearing: 2 July 2012 Place: Adelaide Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 18 Counsel for the Applicants: T Campbell Solicitor for the Applicants: Campbell Law Counsel for the State of South Australia: S Avey and A Jantke Solicitor for the State of South Australia: Crown Solicitor Counsel for M Millison: Mr Millison attended in person IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 6001 of 2000 BETWEEN: GARTH AGIUS AND OTHERS Applicant AND: STATE OF SOUTH AUSTRALIA AND OTHERS Respondent JUDGE: MANSFIELD J DATE OF ORDER: 5 JULY 2012 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The interlocutory application by Milan Millison and Linda Millison of 7 September 2011 be refused. 2. Unless Milan Millison and Linda Millison file and serve within 28 days a notice of their intention to remain as parties to the application, they be removed as parties to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 6001 of 2000 BETWEEN: garth agius AND OTHERS Applicant AND: STATE OF SOUTH AUSTRALIA AND OTHERS Respondent JUDGE: MANSFIELD J DATE: 5 july 2012 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application for the determination of native title over the Adelaide Plains and related areas. Like many claims under the Native Title Act 1993 (Cth) (the NT Act) it has not progressed to resolution as speedily as is desirable. 2 Milan and Linda Millison were joined as respondents to the claim on 25 March 2011. Their claimed interest was a confined one. They are the owners of a property at 30 Whiting Street St Kilda, which has a sea frontage. Between their property and the beach at St Kilda is an area of land of 279 m2, described as Allotment 51, Township of St Kilda Crown Record Volume 5766 Folio 846 (Allotment 51). They want part of Allotment 51 to be merged into and with their existing land. They have been told that s 47B of the NT Act precludes the State of South Australia from considering (and if it thinks fit, acceding to) their application for merger because Allotment 51 is part of the claim area, and may therefore be affected by a determination of the claim. It is accepted that the claim area includes Allotment 51. 3 The evidence shows that Allotment 51 was until 21 December 1979 part of the properties at 30 and 32 Whiting Street St Kilda, but was excised from those properties and reserved by South Australia in 1980, potentially in anticipation of it (and other land) being declared a coastal reserve. 4 The Millisons now seek an order that s 47B of the NT Act does not apply to Allotment 51 because it was subject to a resumption process as defined in s 47B(1)(b)(iii) and s 47(5)(b). By reason of previous dealings with the land in Allotment 51, if s 47B does not apply to Allotment 51, it appears to be accepted that any native title rights and interests in Allotment 51 will have been totally extinguished. Then the present obstacle to the Millisons' dealing with South Australia in seeking a grant of part of the land in Allotment 51 will no longer exist. In fact, it is not clear that the applicant or South Australia accept that premise. But all are agreed that, if s 47B is capable of applying to Allotment 51, the Millisons at present have no particular interest in the application and must abide its outcome. If the claim leads to the recognition of native title rights and interests which cover Allotment 51, then they may have to deal with the applicant or the prescribed body corporate. If it results in a decision that the applicant has no native title rights and interests over Allotment 51, they can resume their dealings with South Australia. The Millisons do not seek the status of respondents generally to dispute the applicant's claim. 5 Section 47B of the Native Title Act relevantly provides: (1) 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) covered by a freehold estate or a lease; or (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) subject to a resumption process (see paragraph (5)(b)); and (c) when the application is made, one or more members of the native title claim group occupy the area. (2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded. … (5) For the purposes of this section: (a) the creation of a prior interest in relation to an area does not include the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity; and (b) an area is subject to a resumption process at a particular time (the test time) if: (i) all interests last existing in relation to the area before the test time were acquired, resumed or revoked by, or surrendered to, the Crown in any capacity; and (ii) when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose; and (iii) the Crown still had a bona fide intention of that kind in relation to the area at the test time. 6 The Millisons accept that their objective can only be achieved at present if Allotment 51 is subject to a resumption process. If it is not, then they understand that they must await the outcome of the claim. 7 It is important to note carefully the definition of the term "subject to a resumption process" in s 47B(5). In particular, it requires the Crown to have had a bona fide intention of using Allotment 51 for public purposes or for a particular purpose: (a) when all interests last existing in it before "the test time" were retaken etc by South Australia, and (b) at "the test time". 8 The phrase "the test time" means the time when the native title determination application was made: see s 47B(1)(b). 9 The evidence is not contested. I note that the Crown (as used in s 47B(5)) encompasses the Executive Government, and relevantly for present purposes the relevant Minister. 10 The land formerly in Lot 7 at 51 Whiting Street St Kilda was partly transferred to the Minister of Lands pursuant to s 271D of the Crown Lands Act 1929 (SA) (the Crown Lands Act) by Instrument of 21 December 1979 signed by the then registered proprietors. The transfer was registered on 5 February 1980. It also appears that the transfer was effected because Lot 7 extended below the mean high water mark on the seafront, and a rock protective wall had been built to prevent further erosion. The Coast Protection Board (its precise legislative status has not been explored in submissions) is recorded in a memorandum of 12 September 1978 as having agreed to that "provided the land seaward of the rock protection is transferred to the Crown as foreshore reserve". The then registered owners of Lot 7 (not at that time the Millisons) engaged solicitors to pursue the question of compensation for that acquisition of the land seaward of the rock wall. 11 The balance of Lot 7 was subdivided into two allotments, one of which is now owned by the Millisons, and the land transferred to the Crown renumbered as Allotment 51. 12 The Millisons rely, in particular, on a letter of 25 July 1979 from the Deputy Director of Planning to the solicitors for the then registered owners of Lot 7 concerning the proposed subdivision. It pointed out that the proposed subdivision of Lot 7: (a) was not solely based on advice from the Coast Protection Board; (b) was based in part on the Metropolitan Development Plan pursuant to the Planning and Development Act 1967 (SA) (as then in force); and that Plan, made under s 45(a) of that Act, prescribed beach areas being vested as a public reserve available to the community; (c) section 53 of that Act required allotments to be 150 feet from the high water mark (and s 57 empowered the Director of Planning to require a subdivision to achieve that purpose; and (d) reflected the view that public access to the beach should not be restricted, including areas subject to tidal flooding. 13 As noted, it is common ground that the test time is the date of the application, first made on 25 October 2000. That is an appropriate acknowledgment. The term "the test time" is not defined, but is also used in other provisions of the NT Act as pointing to a particular point in time applicable to the operation of the relevant provision. In this instance, that is clearly when the application was made. 14 In my view, the order sought by the Millisons must be refused. That is because it is not shown, as a matter of fact, that: (a) at 5 February 1980, or (b) at 25 October 2000 the Crown through the relevant Minister had and has a bona fide intention to use Lot 51 for public purposes or a particular purpose. Consequently, Allotment 51 was not, and as far as the evidence shows is not, subject to a resumption process because neither of the criteria in s 47B(5)(b)(ii) and (iii) are made out. Consequently, s 47B may still apply because the area is not covered by s 47B(1)(b)(iii). 15 I have considered the material that the Millisons rely upon. It is consistent with the material in the affidavit of Andrew Jantke of 22 June 2012 filed on behalf of the State. The material relied upon by the Millisons does not establish, even at the time of the subdivision of the then Lot 7 that the Minister of Lands had the necessary intention. The Crown Lands Act 1929 (SA) provided that the declaration of such a reserve, ultimately transferred from the registered owners, was a non-delegable role and function of that Minister. There is no existing file which supports any such intention on the part of the Minister. The internal departmental correspondence does not take the matter far enough. Moreover, a Land Tenure Master Record, compiled on 12 June 1980, shows that by 30 June 1980 the Minister had decided to leave Allotment 51 as vacant Crown Land and not to implement any departmental recommendations to the contrary. That is the effect of what Mr Millison was told by the Crown Solicitor on 21 July 2010. 16 The position is clearer at the test time, namely when the native title application was made. There had been no further suggestion after 1980 that Allotment 51 should be held for public purposes or a particular purpose. It remained simply vacant Crown Land. The elapse of time also without any change tends to support the conclusion about the absence of the necessary intention on the part of the Crown at the time of the transfer. 17 Consequently, the factual foundation for the Millisons' claim has not been made out. 18 Their application must be refused. Allotment 51, subject to the evidence given at the hearing or agreement between the parties leading to resolution of the native title claim, remains available for consideration as part of the claim area. As the Millisons indicated that their immediate interest was limited to the particular issue addressed, I will order that they cease to now be parties to the application at the expiration of 28 days from this date. They have the option of filing and servicing notice that they intend to remain as parties. In that event, they may be asked at the next directions hearing to indicate their particular interest in doing so. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 5 July 2012