Land and Environment Court of New South Wales CITATION : ANDREW DONNELLY & DAVID MUNDINE v. TENTERFIELD SHIRE COUNCIL (2 June 1998) [1998] NSWLEC 7 Applicants: Andrew Donnelly & David Mundine PARTIES : First Respondent Tenterfield Shire Council Second Respondent: Ross Mining NL Third Respondent: Capricornia Prospecting Pty Ltd FILE NUMBER(S) : 40295 of 1997 CORAM: Talbot J KEY ISSUES: :- Environmental Planning and Assessment Act 1979 Land and Environment Court Act LEGISLATION CITED: Mining Act 1992 Native Title Act (Cmth) 1993 Roads Act 1993 Local Government Act 1993 Mabo v Queensland [No 2] (1991-1992) 175 CLR 1; Western Australia v The Commonwealth (1994-1995) 183 CLR 373 ; National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 71 LGRA 286 ; Nix and Dunn v Pittwater Council (1994) 84 LGRA 199); Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12; Calvin v Carr [1979] 1 NSWLR 1; Minister for Minerals and Energy v Vaughan-Taylor & Anor (1991) 73 LGRA 115 ; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141; North Ganalanja Aboriginal Corporation & Anor v State of Queensland & Ors (1996) 185 CLR 595; Djaigween & Ors v Douglas (1994) 48 FCR 535 at 542; CASES CITED: Yuin Council of Elders Aboriginal Corporation v NSW (1995) 60 FCR 501 at 508; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Fourmile v Selpan Pty Ltd (unreported WG 6002 of 1995 13 February 1998; Taylor v The Minister [1973] 1 NSWLR 352 ; Ashfield Council v Vodafone Pty Ltd (unreported 40162 of 1997 ; Manly Council v Telstra Corporation Ltd (unreported 40297 of 1997 Sheahan J 25 February 1998; Mason v Tritton (1994) 34 NSWLR 572 ; Oceanic Sun Line Special Shipping Company v Fay Inc (1988) 165 CLR 197; The Wik Peoples v State of Queensland (1994) 49 FCR 1 ; R v Hickman ex parte Fox and Clinton (1945) 70 CLR 598; Londish v Knox Grammar School & Ors (unreported CA40323/97 22 December 1997); Calvin v Carr and Macksville and District Hospital v Mayze (1987) 10 NSWLR 708) DATES OF HEARING: 20 - 24 April 1998 DATE OF JUDGMENT: 06/02/1998 Craddock Murray Neumann Solicitors First Respondent Taylor Kelso Solicitors LEGAL REPRESENTATIVES: Second & Third Respondents Blake Dawson Waldron solicitors Crown Department of Mineral Resources JUDGMENT: REASONS FOR JUDGMENT These are interlocutory proceedings in response to a notice of motion by the second and third respondents. The respondents move that identified paragraphs of the applicants' Further Amended Class 4 Application and Further Amended Points of Claim be dismissed or struck out because the Land and Environment Court has no jurisdiction to decide the issues raised, or that the legal challenge is now statute barred and beyond jurisdiction of the Court due to s 137 of the Mining Act 1992 (the Mining Act). In the alternative, the second and third respondents seek a stay of the proceedings pending the determination of the Native Title Determination Applications lodged with the National Native Title Tribunal (NNTT) over the land the subject of the proceedings. In the further alternative the second and third respondents seek summary dismissal of those parts of the applicants' claim affected by the operation of s 74 of the Mining Act. In the course of the hearing the applicants further amended the Class 4 Application and the Points of Claim in response to a submission made by the respondents that claims relying on the breach of s 90 of the National Parks and Wildlife Act 1974 (the NPW Act) was premature. Upon the application of Mr McClellan QC, appearing on behalf of the second and third respondents, the s 90 claims were formally dismissed, except for the claim in paragraph 9, which was withdrawn. The applicants now rely upon the Second Further Amended Application Class 4 and the Second Further Amended Points of Claim. The claim, so far as it is relevant to the second and third respondents' notice of motion is:- 1. On or about 18 December 1997, the first respondent made a resolution in the following terms:- "746/97 Resolved that Council, following consideration of the 'fixing of levels' of Timbarra Road proceed with the upgrading proposal with appropriate alterations, as deemed necessary." 2. On or about 22 January 1998 the first respondent made a resolution purporting to determine the conditions applicable to the upgrading of the road. 3. On or about 26 February 1998, the first respondent resolved to grant itself: a) development consent to carry out roadworks, for the purposes of Part 4 of the EPA Act ("the development consent"); and b) an approval to carry out other roadworks, for the purposes of Part 5 of the EPA Act ("the Part 5 approval"). 4. The second respondent is a corporation which has entered into an agreement with the first respondent to carry out the roadworks. 5. On or about 9 April 1996 the Minister for Mineral Resources purported to grant Mining Lease 1386 (ML 1386) to the third respondent. 6. The applicants hold native title to the following land: a) the land upon which the second respondent proposes to carry out the roadworks on behalf of the first respondent; b) certain land adjoining the road; c) the land upon which it is proposed the third respondent will carry out mining works pursuant to ML 1386. 7. The development consent for the roadworks is null and void and of no effect by reason of the failure to comply with s 23(6) of the Native Title Act 1993 (Cmth) (the NT Act), whereby the applicants have the same procedural rights to receive a notice of the development application pursuant to s 77(2A) of the EPA Act as if they held a freehold estate in fee simple. 8. The development consent for the roadworks is null and void and of no effect by reason of it being made without the consent in writing of the applicants as owners of the land pursuant to s 77(1)(b) of the EPA Act. 9. Further or alternatively, in purporting to grant the development consent and the Part 5 approval (including the resolutions of 18 December 1997 and 22 January 1998), the first respondent failed to take into account a relevant consideration, namely that the applicants are owners of, and hold native title to, the subject lands. 10. The grant of ML 1386 by the Minister for Mineral Resources to the third respondent was "a future permissible act" for the purposes of s 26(2) of the NT Act which expressly includes the creation of a right to mine whether by the grant of a mining lease or otherwise. 11. By reason of the matter referred to in the preceding paragraph, Subdivision B of the Division 3 of Part 2 of the NT Act applied to the grant of ML 1386. 12. In breach of s 29 within Subdivision B of Division 3 of Part 2 of the NT Act, the Minister for Mineral Resources did not give notice of his intention to grant ML 1386. 13. By reason of the matter referred to in the preceding paragraph, no negotiation in good faith has taken place in relation to the grant of ML 1386 for the purposes of s 31(1)(b) of the NT Act. 14. By reason of the matter referred to in the preceding paragraph, no agreement has been made for the purposes of s 34 of the NT Act. 15. By reason of s 28 of the NT Act, ML 1386 is invalid. 16. By reason of the matters pleaded, ML 1386 does not have "effect" for the purposes of s 74 of the Mining Act. 17. To the extent that any provision of the Mining Act purports to authorise the mining activities otherwise than after compliance with Subdivision B of Division 3 of Part 2 of the NT Act, that provision is inconsistent with the provisions of the NT Act for the purposes of s 109 of the Constitution, and invalid. 18. To the extent that the provisions of the Mining Act (and in particular s 137) operate so as to prevent a challenge to the validity of a mining lease granted otherwise that in accordance with Subdivision B of Division 3 of Part 2 of the NT Act, that provision is inconsistent with the provisions of the NT Act for the purposes of s 109 of the Constitution, and invalid. The issues raised by the notice of motion are as follows:- 1. Whether native title holders fall within the category of "owner" in accordance with the statutory definition transmitted into the EPA Act from the Local Government Act 1993. 2. Whether the Land and Environment Court has jurisdiction to determine whether the applicants hold native title to land. 3. Whether the Land and Environment Court has jurisdiction to determine the validity of ML 1386. 4. Whether the applicants' claim based on native title should be stayed pending a determination in the NNTT or the Federal Court, or alternatively dismissed. The first respondent supports the second and third respondents' notice of motion in so far as it relates to the development consent and the Part 5 approval. The Minister for Mineral Resources, who appears on behalf of the Crown pursuant to s 64(1) of the Land and Environment Court Act (the Court Act), supports the second and third respondents' notice of motion in so far as it relates to the validity of ML 1386. A Notice of Motion by the applicants seeking the joinder of the Minister as fourth respondent has been deferred pending this judgment. Section 74(1) of the Mining Act provides:- 74. Mining unaffected by Environmental Planning and Assessment Act 1979 (1) While a mining lease has effect: (a) nothing in, or done under, the Environmental Planning and Assessment Act 1979 or an environmental planning instrument operates so as to prevent the holder of the mining lease from carrying on mining operations in the mining area, and (b) to the extent to which anything in, or done under, that Act or any such instrument would so operate, it is of no effect in relation to the holder of the mining lease. If ML 1386 ceases to have effect, the EPA Act will apply to the mining activities and, according to the applicants, following a change in the planning regime, are either prohibited or will require development consent pursuant to s 76. The Mining Act contains a privative provision in s 137. 137. Limitation of right to challenge technical defects in authorities (1) The grant, renewal or transfer of an authority may not be challenged in any legal proceedings commenced later than 3 months after the date on which notice of the grant, renewal or transfer of the authority is published in the Gazette. (2) This section has effect regardless of the provisions of any other Act, but does not apply so as to affect any appeal from proceedings commenced within the 3 months referred to in subsection (1). The Native Title Claims The Court has been informed that the applicants in the proceedings before this Court are also applicants in one or more of the "competing" native title claims under the NT Act lodged over lands the subject of the proceedings as follows:- NC96/25 made by Eric Walker on behalf of the Tabulam Bundjalung people lodged and registered 4 July 1996 and determined by agreement entered into by the State of New South Wales , the second respondent and the Tabulam Bundjalung people in July 1997 and registered under s 34. Eric Walker is not a party to the proceedings. The agreement does not relate to the land in ML 1386. NC97/20 made by Colleen Donnelly, the first named applicant Andrew Donnelly and Albert Robinson on behalf of the Wahlabul people, lodged and registered 28 July 1997 and 29 July 1997 respectively (this claim has been referred to a Presidential Member). NC97/21 made by Colleen Donnelly, Andrew Donnelly and Albert Robinson on behalf of the Wahlabul people, lodged and registered 29 July 1997 (this claim was accepted on 14 April 1998). NC97/26 made by the second named applicant David Mark Mundine and Leone Erol Mundine on behalf of the Mundine family, lodged and registered 4 September 1997 (accepted for determination on 9 January 1998). NC97/19 made by Eric Walker on behalf of the Tabulam Bundjalung people, lodged and registered 22 July 1997 (not yet accepted). The Native Title Act 1993 (Cmth) - Relevant Provisions In order to properly appreciate the issues, it is necessary to have regard to a number of provisions of the NT Act. A. WHAT IS NATIVE TITLE Native title Common law rights and interests 223.(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. Native title holder 224. 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. B. WHAT IS A DETERMINATION OF NATIVE TITLE Determination of native title 225. A "determination of native title" is a determination of the following: (a) whether native title exists in relation to a particular area of land or waters; (b) if it exists: (i) who holds it; and (ii) whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and (iii) those native title rights and interests that the maker of the determination considers to be of importance; and (iv) in any case - the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests. C. FUTURE ACTS AND NATIVE TITLE Future act Definition 233.(1) Subject to this section, an act is a "future act" in relation to land or waters if: (a) either: (i) it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or (ii) it is any other act that takes place on or after 1 January 1994; and (b) it is not a past act; and (c) apart from this Act, either: (i) it validly affects native title in relation to the land or waters to any extent; or (ii) the following apply: (A) it is to any extent invalid; and (B) it would be valid to that extent if any native title in relation to the land or waters did not exist; and (C) if it were valid to that extent, it would affect the native title. Permissible future act Non-legislative acts in relation to onshore places 235.(5) A future act in relation to an onshore place is also a "permissible future act" if: (a) it is an act other than the making, amendment or repeal of legislation; and (b) either: (i) the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it; or (ii) the act could be done in relation to the waters concerned if the native title holders concerned held ordinary title to the land adjoining, or surrounding, the waters. Example for purposes of subsection (5) (6) An example of a future act covered by subsection (5) is the grant of a mining lease over land in relation to which there is native title when a mining lease would also be able to be granted over the land if the native title holders instead held ordinary title to it. Impermissible future act 236. An "impermissible future act" is any future act that is not a permissible future act. Impermissible future acts 22. Subject to sections 24 and 25, if an act is an impermissible future act, the act is invalid to the extent that it affects native title. Permissible future acts Coverage of section 23.(1) This section applies if an act is a permissible future act, other than one to which section 24 or 25 applies. Validation of act (2) Subject to Subdivision B (which deals with the right to negotiate), the act is valid. Other definitions 253. Unless the contrary intention appears: "valid" includes having full force and effect. D. PROCEDURAL RIGHTS Other definitions 253. Unless the contrary intention appears: "procedural right" , in relation to an act, means: (a) a right to be notified of the act; or (b) a right to object to the act; or (c) any other right that is available as part of the procedures that are to be followed when it is proposed to do the act 23. Permissible future acts Procedural rights (6) In the case of any act to which this section applies (other than a low impact future act or one to which Subdivision B applies), the native title holders have the same procedural rights as they would have in relation to the act on the assumption that they instead held: (a) to the extent that the act is in relation to an onshore place - ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned; or (b) to the extent that the act is in relation to an offshore place - any corresponding rights and interests in relation to the offshore place that are not native title rights and interests. Satisfying the right to be notified (7) If: (a) because of subsection (6) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and (b) there has been no approved determination of the native title; then one way in which the person may give the required notification is by doing all of the following: (c) notifying, in the way determined in writing by the Commonwealth Minister for the purpose of this paragraph, any representative Aboriginal/Torres Strait Islander bodies for the area concerned that the act is to take place; (d) notifying, in the way determined in writing by the Commonwealth Minister for the purposes of this paragraph, any occupier of any land concerned that the act is to take place; (e) placing notices, in the way determined in writing by the Commonwealth Minister for the purposes of this paragraph, on any land concerned, advising that the act is to take place; (f) notifying the public in the determined way (see section 252) that the act is to take place. Subdivision B - Right to negotiate When Subdivision applies Subdivision applies to certain permissible future acts 26.(1) This Subdivision applies if the Commonwealth, a State or Territory (the "Government party" ) proposes, at any time after the commencement of this Subdivision, to do any permissible future act covered by subsection (2) in relation to an onshore place. Acts covered (2) Subject to subsection (3), the acts are as follows: (a) the creation of a right to mine, whether by the grant of a mining lease or otherwise Act invalid if done before negotiation or objection/appeal etc. Invalidity 28.(1) The act is only valid if: (a) by the end of the period of 2 months starting when notice is given under section 29, there is no native title party in relation to any of the land or waters that will be affected by the act Notification of parties affected Notice in accordance with section 29.(1) The Government party must give notice, in accordance with this section, of its intention to do the act. Persons to be given notice (2) The Government party must give notice to: (b) any registered native title claimant (also a "native title party" ) in relation to any of the land or waters that will be affected by the act; (d) if the act is to be done at the request of, or on application by, a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied) - that person (a "grantee party" ); and (e) the arbitral body in relation to the act. Public notification (3) The Government party must also notify the public in the determined way of its intention to do the act. Normal negotiation procedure Government party to negotiate 31.(1) Except where the notice includes a statement that the Government party considers the act attracts the expedited procedure, the Government party must: (b) negotiate in good faith with the native title parties and the grantee parties with a view to obtaining the agreement of the native title parties to: (i) the doing of the act; or (ii) the doing of the act subject to conditions to be complied with by any of the parties. Parties to give copy of any agreement to arbitral body 34. If, at any time before any determination is made by the arbitral body under section 38, the negotiation parties make an agreement of the kind mentioned in paragraph 31(1)(b) or subsection 32(5), they must give a copy of it to the arbitral body. E. JURISDICTION OF THE FEDERAL COURT Jurisdiction of the Federal Court 81. The Federal Court has jurisdiction to hear and determine applications lodged with it under section 74 and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court. Federal Court's way of operating Objectives 82.(1) The Federal Court must pursue the objective of providing a mechanism of determination that is fair, just, economical, informal and prompt. Concerns of Aboriginal peoples and Torres Strait Islanders (2) The Court, in conducting proceedings, must take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders. Court not bound by technicalities etc. (3) The Court, in conducting proceedings, is not bound by technicalities, legal forms or rules of evidence. Provisions relating to Federal Court jurisdiction Native title to be determined with this Act 213.(1) If, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures of this Act. Matters arising under this Act (2) Subject to this Act, the Federal Court has jurisdiction in relation to matters arising under this Act. The applicants also rely on the effect of s 10(1) of the Racial Discrimination Act (Cmth) to construe the definition of "owner" in the Local Government Act so that it applies to native title holders. The relevant part of s 10 is:- Rights of equality before the law 10.(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. Whether Native Title Holders fall within the Statutory Definition of "Owner" The applicants submit that independently of anything in the NT Act, they are "owners" for the purposes of s 77 of the EPA Act. The evidence discloses that, amongst other things, the applicants who have lodged the applications with the NNTT claim that they are entitled as against the whole world to the possession, use and enjoyment of the land the subject of the claims. Mr Larkin, on behalf of the applicants, contends that, after reference to the relevant passages in Mabo v Queensland [No 2] (1991-1992) 175 CLR 1, it does not matter whether native title is defined by reference to usufructuary rights or proprietary rights because the title is to be determined by reference to the customary law. That is a matter which can only be decided upon proof of the customary law which establishes the customary title. In Mabo [No 2] (at p 50) Brennan J held that unless the sovereign power to grant an interest in land, or to appropriate to the Crown itself ownership of parcels of land is exercised, there is no reason why land should not continue to be subject to native title. The fact that individual members of the Aboriginal community enjoy only usufructuary rights that are not proprietary in nature is no impediment to the recognition of a proprietary community title (p 51). Deane and Gaudron JJ summarised the nature, incidents and limitations of the rights involved in the common law native title at pp 109-110 as follows:- Ordinarily, common law native title is a communal native title and the rights under it are communal rights enjoyed by a tribe or other group. ……… Since the title preserves entitlement to use or enjoyment under the traditional law or custom of the relevant territory or locality, the contents of the rights and the identity of those entitled to enjoy them must be ascertained by reference to that traditional law or custom. ……… The rights of an Aboriginal tribe or clan entitled to the benefit of a common law native title are personal only. ……… The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. ……… The personal rights of use and occupation conferred by common law native title are not, however, illusory. They are legal rights which are infringed if they are extinguished, against the wishes of the native title-holders, by inconsistent grant, dedication or reservation and which, subject only to their susceptibility to being wrongfully so extinguished, are binding on the Crown and a burden on its title. Dawson J concluded that the plaintiffs had no Aboriginal title to the land and that the separate claim to usufructuary rights over the land could not therefore succeed. However, in Western Australia v The Commonwealth (1994-1995) 183 CLR 373 (the Western Australia case) at 495, notwithstanding his own views, he felt compelled to follow the decisions of the majority in Mabo [No 2] in the interests of the law following a consistent course. Toohey J observed in Mabo [No 2] , at p 195, that the specific nature of native title can be understood only by reference to the traditional system of rules and that therefore a conclusion that traditional title is, in its nature, "personal" or "proprietary" will not determine the power of the Crown to extinguish the title unilaterally. In answer to the second respondent's claim that the applicants cannot be regarded as owners in the present proceedings, Mr Larkin refers to the following passage from the judgment of Brennan J in Mabo [No 2] at p 52:- … 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. Mr Larkin contends that a provision such as s 77 of the EPA Act must be construed according to the common law. My understanding of the approach by the High Court is that it recognises rights in relation to land, but those rights are not rights to own the land derived from the Crown. They do not appear to constitute an estate or interest in the land. Whether or not the applicants are owners for the purposes of s 77 of the EPA Act is a matter which Mr McClellan agrees falls within the jurisdiction of this Court. However, he contends that it is highly improbable that the legislature intended that the definition of owner in the EPA Act, transmitted from the Local Government Act, extended to a native title holder. The definition is in two parts: (a) in relation to Crown land means the Crown and includes: (i) …. (ii) …. (b) in relation to land other than Crown land includes: (i) …. (ii) …. (iii) …. (iv) …. (v) …. For the purposes of the present argument it is not necessary to set out the inclusive part of the definition. It is sufficient to note that native title is not referred to. Mr McClellan foreshadows that the High Court would not transfer the right identified in Mabo [No 2] into a right of ownership within the definition contained in the Local Government Act. The starting point for the survival of native title recognised by the High Court is unalienated Crown land. The first part of the definition in the Local Government Act contained in para (a) is not inclusive. The owner "means the Crown". Therefore, only the Crown fits within that part of the definition. There is no extra category and accordingly no room for any common law doctrine. Mr McClellan goes on to note that the second part of the definition in para (b) relates only to land that is "other than Crown land". The High Court has made it quite clear that once Crown land has been alienated then native title cannot survive. Accordingly, he says s 77 of the EPA Act, properly construed, by reference to the definition of "owner" contained in the Local Government Act cannot include a native title holder. Mr Larkin's submission, so far as it relates to s 77 of the EPA Act ignores the clear words of the definition of "owner" which in relation to Crown land means the Crown. The High Court has left no doubt that native title cannot survive in relation to land other than Crown land which comprises the second part of the statutory definition in the Local Government Act. Thus, were it the case that Mr Larkin's clients establish a right to exclusive possession, they are nevertheless not the Crown. It should also be noted that s 100 of the Native Title (New South Wales) Act 1994 provides that, for the purposes of an Act prescribed by the regulations, the owner of land includes the holder of native title in relation to land. The Local Government Act and the EPA Act have not been prescribed. Part 12 Division 2 of the Roads Act, dealing with acquisition of land, was amended in 1994 to include the definition of native title and to provide that the holder of native title rights and interests in relation to land has an interest in land. No corresponding amendment has been made to the definition of owner in the Local Government Act. The Court is persuaded that the reasoning adopted by Mr McClellan and his approach to the construction of the definition of owner for the purposes of the EPA Act and the Local Government Act is correct. Even if, contrary to the applicants' submission, the EPA Act is to be construed on the basis that the term "owner" is incapable of extending to a native title owner, Mr Larkin says that regard must nevertheless be had to s 10 of the Racial Discrimination Act. In this respect he refers to the joint judgment of Brennan, Toohey and Gaudron JJ in Mabo v Queensland [No 1] (1988) 166 CLR 186 at 218 as follows:- In practical terms, this means that if traditional native title was not extinguished before the Racial Discrimination Act came into force, a State law which seeks to extinguish it now will fail. It will fail because s. 10(1) of the Racial Discrimination Act clothes the holders of traditional native title who are of the native ethnic group with the same immunity from legislative interference with their enjoyment of their human right to own and inherit property as it clothes other persons in the community. A State law which, by purporting to extinguish native title, would limit that immunity in the case of the native group cannot prevail over s. 10(1) of the Racial Discrimination Act which restores the immunity to the extent enjoyed by the general community. According to Mr Larkin, the argument advanced by Mr McClellan offends the principles and policy of the Racial Discrimination Act. The Court does not agree that the provisions of the EPA Act and the definition of owner incorporated from the Local Government Act have the result that persons of a particular race do not enjoy a right that is enjoyed by persons of another race. No provision in the EPA Act or the Local Government Act has the effect of extinguishing traditional native title or interfering with the right of any person to own and inherit property. The application of the statutory definition of "owner" is not based on race. It is simply that the holders of any title, including traditional native title, who do not fall within the definition are not affected by the provision. Accordingly, even if the applicants are entitled to be regarded as holders of traditional native title, they are not owners for the purposes of s 77 of the EPA Act, notwithstanding s 10 of the Racial Discrimination Act. By finding against the applicants on this issue it does not follow that this Court does not recognise the "ungrudging and unambiguous recognition and protection of native title" referred to by the Prime Minister in his Second Reading Speech when presenting the Native Title Bill to the House of Representatives. The finding of this Court at this point in these proceedings will only go so far as it is necessary to determine whether there is any matter to be determined within its jurisdiction. The Effect of Failure to Give Notice Pursuant to the Native Title Act Alternatively, the applicants allege that non-compliance with s 23(6) of the NT Act in relation to the development consent and roadworks approvals renders the consent and approvals invalid as a consequence of the failure of the council to afford the same procedural rights to the applicants as if instead they held ordinary title. To the extent that the applicants rely upon s 23(6) of the NT Act, they say that provision is a specific provision which operates despite s 23(2): generalia specialibus non derogrant . Accordingly, the consequence of breach of s 23(6) is that there has been a breach of s 77 of the EPA Act. The same arguments are applied to support the applicants' claim in relation to Pt 3 of Div 3 of the Roads Act as the purported owners of land adjoining the road. For the purposes of the Roads Act, an owner of land as defined in the Dictionary means any person who has an interest in the land. In relation to the mining lease, the applicants rely on an alleged failure to give notice pursuant to s 29 of the NT Act to have the effect that ML 1386 is not valid in accordance with s 23(2) because the prescribed condition in s 28(1)(a) to give notice to the nominated persons has not been satisfied. Mr Larkin says that, as the mining lease has been raised as a defence, it is necessary for the applicants to challenge the validity of the lease under the NT Act. The respondents do not seek to contend that the applicants were not entitled to a notice in accordance with s 23(6) or that their interest in the land did not give rise to a requirement for a notice pursuant to s 29. The respondents' substantive claim is that the Court can only have jurisdiction to decide whether or not the applicants are holders of native title if that decision could affect the determination of a matter within jurisdiction. The success of this submission depends upon the effect of a failure to comply with the provisions of the NT Act. The respondents and the applicants have conflicting views about the consequences for the validity of a future act following non-compliance with a provision of the NT Act that requires the giving of notice or affords procedural rights to the holders of native title. The applicants' case is that a failure to comply with the provisions of the NT Act renders the future act invalid for all purposes. On the other hand, the respondents and the Crown rely on the reasoning in the Western Australia case to demonstrate that the non-compliance only renders the act invalid to the extent that it affects native title. Section 227 provides that an act "affects" native title if it extinguishes the native title rights and interests, or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. The definitions were considered by the majority in the Western Australia case at p 456:- A 'future act' may be the enactment of a law or another act done on or after the terminal date for the doing of a past act (s 233(1)). A 'future act' either validly 'affects' native title or, like a past act, would be 'invalid' to some extent on account of the existence of native title. An act 'affects' native title 'if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise' (s 227). The decision is relied upon by the respondents to support their contention that the only purpose and object of the NT Act, as reflected in s 11, is to provide for the protection of native title. In the Western Australia case, the High Court explained the nature of invalidity under the NT Act in the following passage at p 457:- All future acts that are not "permissible" are "impermissible" (s 236) and, subject to some qualifications (ss 24, 25) are invalid to the extent that they affect native title (s 22). The general rule is that a permissible future act is "valid" (s 23(2)), and thus is of full force and effect. But there are qualifications to the general rule. The major qualifications are (i) the possible requirement that a notice of an intention to do the future act and any other procedural right be given to native title holders who may be affected by the doing of the act (s 23(6), (7)): and (ii) a requirement, in the case of some future acts, that native title holders be given the right to negotiate about the doing of the future act and, if agreement is not reached, to have the question decided by an arbitral body. The entitlement of native title holders to notice and other procedural rights arises if they would be entitled to those rights were they the owners in fee simple of the land to be affected. The scope of the provisions in Subdivision B of the Act is explained at p 471:- These provisions are, for the most part, merely regulatory. They prescribe the steps to be taken to obtain agreement to, or approval for the doing of, a proposed permissible future act which falls within s 26(2). The provisions prescribing the procedure to be followed and the conditions to be satisfied simply define the scope of certain exceptions to the general protection of native title declared by s 11(1). They do not purport to impose upon a State Parliament or other "Government party" any positive obligation or duty to do anything or to follow particular procedures. The provisions of Div 3 of the Act (including Subdiv B) which relate to future acts merely prescribe the scope of exceptions to the general protection of native title by s 11. The use of the term 'valid' is discussed at p 469 as follows:- The use of the term "valid" raises the question whether the Native Title Act is attempting to prescribe conditions relating to the power to make or the making of a State law, even though the validity of a State law cannot be affected by a law of the Commonwealth. But the term "valid" (or its derivatives), which appears in more than one of the impugned provisions, has more than one meaning and it is defined in the Native Title Act to include "having full force and effect". In accordance with s 15A of the Acts Interpretation Act 1901 (Cth), that term must be construed to have a meaning which is supported by Commonwealth legislative power; it must not be construed to have a meaning which, in its context, would carry the Act outside Commonwealth legislative power. Therefore the use of the term, its derivatives or its opposite in the impugned provisions, so far as those respective terms relate to a State law, must be taken to mean having, or not having, (as the case may be) full force and effect upon the regime of protection of native title otherwise prescribed by the Act. In other words, those terms are not used in reference to the power to make or to the making of a State or Territory law but in reference to the effect which a State law, when validly made, might have in creating an exception to the blanket protection of native title by s 11(1). In using the terms "valid" and "invalid", the Act marks out the areas relating to native title left to regulation by State and Territory laws or the areas relating to native title regulated exclusively by the Commonwealth regime. The respondents' case is that, because the outcome of the inquiry about the existence of native title cannot lead to questions about the validity of any consent or approval under the EPA Act, the Roads Act or the Mining Act, the issue of native title is not a question to be resolved along the way to determining an issue that is within jurisdiction. If the respondents' argument is correct, the failure to follow the procedures in Subdivision B of Part 2 Division 3 of the NT Act means that the grant of ML 1386 is ineffective to affect native title interests. Otherwise ML 1386 remains valid for all other purposes and in particular remains valid for the purpose of s 74 of the Mining Act. Even if s 77 of the EPA Act creates a procedural right within the meaning of s 23(6) of the NT Act, s 74 of the Mining Act prevents the Court from exercising any jurisdiction in respect of a breach of the EPA Act in relation to the mine because the planning statute cannot operate to prevent the holder of the lease from carrying on mining operations in the mining area while ever ML 1386 has effect. The only attack on the validity of ML 1386 stems from the failure to comply with the NT Act. If the NT Act cannot have the effect of causing ML 1386 to be invalid for all purposes, the operation of s 74 means there is no issue within the Land and Environment Court jurisdiction. Mr Larkin, on the other hand, says that s 28 of the NT Act governs the validity of ML 1386 and that section is not qualified or limited by reference to its effect upon native title. He draws attention to the distinction between the provision in s 22 that the impermissible future act is "invalid to the extent that it affects native title" and s 23(2), which merely provides a permissible future act, is 'valid'. Accordingly if s 23 is to be read with the qualification "to the extent that it affects native title", it would be inconsistent with the definition of valid in s 253 and render those words, as they are used in s 22, otiose. The difficulty I have with Mr Larkin's argument is that it does not recognise the consequence of invalidity and the necessity to limit the effect of s 22 by qualifying the invalidity to the extent that it affects native title. Section 23 however is merely maintaining validity provided the right to negotiate is protected. The latter section must be read and applied in the context of the objectives and purpose of the NT Act to provide for the recognition of native title. Relevantly to the present case, the objectives include the establishment of ways in which future dealings affecting native title may proceed (s 3(a),(b)). Section 23 must be construed as operating to allow a future act to proceed notwithstanding the existence of native title. It does not, and could not, speak to the validity of the act for all other purposes, including under State law. Nor can it operate to make the act invalid for all purposes where the provisions of Subdivision B are not complied with. The use of the term "valid" must be taken to mean having full force and effect upon the regime of protection of native title otherwise prescribed by the Act. This approach takes into account the fragility of native title against an unqualified grant of an inconsistent estate. It would be illogical to construe s 23(2) in a way that rendered any act invalid beyond its effect on native title. Further, the High Court in the Western Australia decision recognised that "valid" has more than one meaning, only one of which is "having full force and effect". The definition relied upon by Mr Larkin is inclusive. For the purpose of deciding whether this Court has jurisdiction to investigate whether the applicants rightly hold native title, I do not accept that the failure to give notice of intention to grant ML 1386 in accordance with the NT Act has the consequence that ML 1386 is invalid for all purposes. It does not matter whether ss 29 and following provisions of the NT Act are mandatory in effect, because the consequence of non-compliance for present purposes in this Court's opinion is that ML 1386 can only be invalid under the legislation to the extent that it affects native title. Accordingly, s 74 of the Mining Act continues to have effect and precludes the Court's jurisdiction to entertain a claim alleging a breach of the EPA Act. Section 23(6) raises a different issue in regard to the validity of the development consent in respect of the proposed road. Notwithstanding para 12 of the Second Further Amended Points of Claim, which states no copy of the development application has been served on the applicants pursuant to s 77(2A) of the EPA Act, Mr Larkin expressly stated during argument that the applicants do not rely on any procedural right arising out of s 77(2A). The procedural right relied upon is that alleged to be contained in s 77(1). Even if s 77(2A) does apply, the procedures to be followed are prescribed by s 23(7). When the development consent was granted, there was no identified prescribed body corporate or person holding native title. Section 23(7) recognises this prospect by making provision for satisfying the right to be notified where there has been no determination. In the circumstances of this case if the first respondent is the owner of the road, there is no obligation arising under s 77(2A). The procedural rights arise under s 23(6) and can be satisfied by giving the notices prescribed by s 23(7) of the NT Act. The requirement in s 77 (1) of the EPA Act for a development application to be made by an owner or with the consent of the owner is part of the prescription for a valid development application. If s 77(1) is to be regarded as affording a procedural right, then the right is in the same category as any alleged procedural right under s 77(2A). When the definition of procedural right in s 253 of the NT Act is read in conjunction with s 23(6) and s 23(7), there is no room for the concept of a consent required pursuant to s 77(1) of the EPA Act. The applicants cannot be regarded as owners within the statutory definition for the reasons already given. For the above reasons, the Court is not satisfied that s 77(1) of the EPA Act gives rise to a procedural right defined for the purposes of the NT Act and accordingly the Court does not agree that s 23(6) of the NT Act provides for any entitlement to the present applicants under s 77 of the EPA Act. The conclusions in respect of the impact of the provisions of the NT Act on validity have been reached on the basis that each of the acts concerned with the determination of the development application and the grant of the mining lease are permissible future acts within the statutory meaning. If however they, or any of them, constitute impermissible future acts, they are, in any event, invalid only to the extent that they affect native title in accordance with s 22. There cannot be any question that, on a proper construction of s 22, an impermissible future act remains otherwise valid, at least so far as the NT Act goes. Jurisdiction to Determine the Challenge to ML 1386 The Minister and the second respondent made submissions along the same lines. Neither the Mining Act, pursuant to which ML 1386 was granted, nor the NT Act s 28, which the applicants claim renders the lease invalid, are listed as a "planning or environmental law" in s 20(3) of the Land and Environment Court Act. Mr Miller QC, who appears for the first respondent, notes that the Racial Discrimination act is also not referred to in s 20(3). These are not proceedings listed in s 20(1) of the Act. The NT Act (NSW) and the NT Act (Cmth) provide the following:- 1. Recognition of native title. 2. A process for determination of native title. 3. Compensation. No jurisdiction has been conferred on the Land and Environment Court in response to the above matters. The only challenge made to the validity of ML 1386 arises out of the NT Act. It must be regarded as a primary claim for relief. It is only as a consequence of a finding of invalidity that any question arises within jurisdiction. The validity of the mining lease in so far as it affects native title or otherwise is not, in my opinion, an incidental, accessory or auxiliary matter which brings it within the scope of a matter that is ancillary to a matter that falls within the Court's jurisdiction pursuant to s 16(1A) of the Court Act ( National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 71 LGRA 286 and Nix and Dunn v Pittwater Council (1994) 84 LGRA 199). Without an express finding of invalidity and a declaration that ML 1386 is void, there is no matter within jurisdiction. Such a finding would not, in my opinion, be subservient or subordinate to the matter within jurisdiction ( Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12). There is no jurisdiction to determine a direct challenge to the mining lease as such. The issues in respect of ML 1386 are not raised in an indirect or collateral fashion. Until ML 1386 is declared invalid by a Court of competent jurisdiction, s 74 of the Mining Act ousts the operation of the EPA Act ( Calvin v Carr [1979] 1 NSWLR 1; F. Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295). Further, the challenge to the validity of ML 1386 rests solely on native title issues and therefore, even if successful, could only result in partial invalidity. In that case s 74 of the Mining Act would continue to operate. In Minister for Minerals and Energy v Vaughan-Taylor & Anor (1991) 73 LGRA 115 it was accepted that the validity of a mining lease could be determined in an indirect or collateral fashion as a step in the cause of action as to whether a breach of planning law subsisted or whether there were existing use rights attached to the mining operation. The mining lease was granted after the trial alleging the breach of planning law had commenced. Furthermore, the applicant engaged the provisions of s 25 of the Environmental Offences and Penalties Act (EOP Act) and obtained the necessary leave under that section in order to give the Court jurisdiction. It was conceded that the Court had no jurisdiction to determine a direct challenge to the mining lease. The circumstances in Vaughan-Taylor are distinguishable from the present where there is no breach of the Mining Act alleged. If the applicants are to establish that the Minister's action in granting ML 1386 was a "permissible future act" as they assert, they must first prove that "native title" (as defined in s 223) exists in the land over which the lease was granted. The NT Act sets up a special scheme for determining whether or not native title exists and, if so, its content and who holds it. The Act invests the NNTT and the Federal Court with jurisdiction to determine native title. Mr Hughston, on behalf of the Crown, refers to the scheme of the Act which, he says, indicates a strong legislative preference for native title claims to be determined by negotiation and by mediation, rather than by litigation. Mr Larkin asserts that the decision by Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (the Gove land rights case) demonstrates that constraints imposed by the rules of evidence are not as onerous as the respondents contend. That case was decided in 1970. Even if it does demonstrate that an aboriginal land rights claim can be managed within the rules of evidence, it was decided at a time before the special rules and procedures dictated by the NT Act were brought into force. It is also not helpful in the present case where the procedures under the NT Act have already been engaged. It might be said, quite validly, that these proceedings are confined to specific parcels of land over which ML 1386 has been granted and the area affected by the road. The wider inquiry which might be conducted by the NNTT and the Federal Court, when dealing with the applications already lodged, could foreseeably come to quite a different result. I accept that there may not be an insurmountable evidentiary barrier to the establishment of native title, notwithstanding the application of the rules of evidence in this Court, but the particular provisions of the NT Act in that regard are persuasive to the view that this Court is an inappropriate forum. It is relevant to note that, as Deane and Gaudron JJ observed in Mabo [No 2] at p 101, the primary reason the applicants in Milirrpum failed to establish their claim to traditional tribal or communal lands was that they had not established on the balance of probabilities that their predecessors had had the same links as themselves to the relevant areas of land at the time of the establishment of New South Wales. That observation serves to further highlight the difficulty of proving native title at common law. In North Ganalanja Aboriginal Corporation & Anor v State of Queensland & Ors (1996) 185 CLR 595 ( Waanyi ), five members of the High Court in a joint judgment noted at (p 614) the legislative reasoning behind the approach taken in the scheme of the NT Act by saying that although a claim to native title as defined in Mabo [No 2] was justiciable, the issues of fact raised by such a claim were complex and, in the event of opposition, would be likely to take significant time and resources (including judicial resources). Their Honours also noted that the preamble to the Act indicates a legislative preference for resolving such claims by conciliation and negotiation:- A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard for their unique character. Mr Hughston aptly summarised the procedure which must be followed before either the NNTT or the Federal Court can make a determination of native title as follows. An application for a determination of native title is lodged with the NT Registrar (ss 13 and 61). That sets in train a procedure whereby the Registrar notifies the relevant State or Territory Government, persons holding proprietary interests and other bodies and persons listed in s 66(2)(a), and also notifies the public (s 66(2)(b)). Those to whom notice is given and other persons whose interest may be affected by the determination sought may become parties to the application (s 68). If the Registrar accepts the application and if the application is unopposed, the NNTT may make a determination of native title, in or consistent with the terms sought by the applicant (ss 63 and 70). If the application is opposed but the parties to the application can agree on the terms of a determination to be made, the NNTT may make a determination in accordance with those terms (s 71). Failing agreement, the matter goes to mediation to be presided over by a member of the NNTT (s 72). If, at the end of such mediation, the parties can agree as to the terms of a determination, then the NNTT must make a determination in, or consistent with, those terms (s 73). If, following the period of negotiation and following upon the compulsory mediation, the parties cannot reach agreement upon a determination to be made, the Registrar must then lodge the application with the Federal Court for judicial determination (s 74). The Federal Court only has jurisdiction to hear matters lodged with it under s 74 of the NT Act (s 81). The mandatory nature of the procedure has been recognised by Carr J in Djaigween & Ors v Douglas (1994) 48 FCR 535 at 542:- The procedure [under the Native Title Act] is that an application must originate by being lodged and accepted by the Native Title Tribunal. If an application is accepted and the Tribunal does not make a determination under s 70, 71 or 73, then the Registrar must lodge the application with the Federal Court for decision: see s 74. There is no provision in the Native Title Act for an applicant to initiate proceedings in the Federal Court by way of an application for determination of native title. That is a function of the Registrar. Subsequently Lockhart J agreed with Carr J in Yuin Council of Elders Aboriginal Corporation v NSW (1995) 60 FCR 501 at 508 in the following passage:- The essential point made by counsel for the applicant was that because the power of this Court to make declarations is a very wide one (s 21), the Court must have jurisdiction to simply declare that someone has established a native title claim over a given piece of land. Counsel argued that, although native title is enshrined in the Native Title Act , it is fundamentally a common law concept. The argument is fallacious, because this Court had jurisdiction conferred upon it under s 213(2) only in relation to matters arising under the Native Title Act itself. This Court does not have jurisdiction in a case such as the present one to hold that native title existed at certain times. Carr J said in Djaigween v Douglas (1994) 48 FCR 535 at 541 and 542, that there is no provision in the Native Title Act for an applicant to initiate proceedings in the Federal Court by way of an application for determination of native title, as that is a function of the Registrar. I agree with Carr J's observations. I agree with Mr Hughston that the NT Act expressly, or by necessary implication, ousts the jurisdiction which any State or Territory Court might otherwise have had to hear and determine matters arising under that Act. Under section 251, the Commonwealth Minister may, in the circumstances described in that section, determine that a State or Territory Court or Tribunal (referred to as a "recognised State/Territory body") can exercise jurisdiction to hear and determine matters arising under the Act. The Commonwealth Minister has not made any determination under section 251 in respect of the Land and Environment Court, nor indeed, in respect of any other State or Territory Court or Tribunal. In these proceedings the applicants seek recognition of their status as "native title holders" under the statutory scheme laid down under the NT Act. Furthermore, they allege invalidity of certain actions by the Minister on the basis that their procedural rights, "as native title holders", under the NT Act have not been complied with. Those procedural rights only accrue if, ultimately, it is determined that the applicants do in fact hold "native title" as that term is defined in the Commonwealth Act, and that their title has been affected by the Minister's actions. Mr Larkin relies upon the absence of unambiguous and clear words in ss 81 and 213 of the NT Act to oust the jurisdiction of this Court. In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, particularly at p 559, the High Court appears to have preferred, as the relevant test for a choice between competing jurisdictions, whether the selected forum is a clearly inappropriate forum to exercise jurisdiction. This Court is clearly ill-equipped to deal with the evidentiary requirements for the establishment of native title under the provisions of the NT Act. It is not at present constituted in a way which facilitates holding the type of inquiries foreshadowed in the NT Act. The procedures stipulated for the NNTT recognise the peculiar nature of the evidence which may be relied upon to establish the existence of native title. Accordingly, it would be inconvenient from the point of view of the parties, and the Court's own administration, for a native title claim to be heard in this Court. Moreover, all of the relevant parties and interests are not necessarily represented or entitled to be heard in this Court. The procedural rights conferred on the holders of native title under the NT Act are statutory, not common law, rights. The applicants' claim is that they are the holders of a form of native title recognised and protected by the NT Act, and are thereby entitled to assert statutory procedural rights conferred by the Act. The claim should be pursued in the manner prescribed by the NT Act. This Court should not circumvent the procedures laid down by the NT Act and avoid the very forum which the Commonwealth legislature has said is to have jurisdiction to make determinations of native title. Jurisdiction to Determine the Challenge to the Roadworks The decision of the majority of the Federal Court in Fourmile v Selpan Pty Ltd (unreported WG 6002 of 1995 13 February 1998) demonstrates that action by the Crown to constitute land as a public road goes further than setting the land aside for the purpose so far as its impact on native title is concerned. Mr Miller claims that, pursuant to s 232(1) of the Local Government Act 1919, the fee simple of the subject road was vested in the first respondent when it was dedicated as a public road in 1956 by Government Gazette notice. Therefore, he says that even if the Court has jurisdiction to determine whether the fixing of levels for the road constitutes a "permissible future act", it would not be an act done in relation to land subject to native title. Further, the Court notes there is some evidence that a form of notice was given to the applicants' solicitors. The notice is purported to be pursuant to s 23(6) of the NT Act. For present purposes it is sufficient to note that this occurred without any necessity to proceed further and determine whether the notice satisfied the requirement of s 23. This is because the failure to give the required notice cannot, in the Court's opinion, have the effect contended for by the applicants. Assuming that the applicants hold native title to adjoining land, either the appropriate notice was given pursuant to s 23(6), or the failure to give notice does not render the fixing of the levels invalid for all purposes. For the reasons already explained s 77(2A) and s 77(1)(b) can have no application in respect of a claimant for or the holder of native title. Ouster Mr McClellan relies on s 296(p) of the Mining Act to submit that if the Court otherwise has jurisdiction to hear the challenge to the validity of ML 1386, the jurisdiction has nevertheless been impliedly ousted by the conferral of jurisdiction on the Mining Warden to determine any question or dispute as to the validity of the granting of an authority, which includes a mining lease. In Taylor v The Minister [1973] 1 NSWLR 352 the majority of the Court of Appeal held that where the whole of the right of action is vested in a particular Court, a suit for a declaration as to part of the cause of action cannot be brought in another Court. The circumstances of that case can be distinguished from the present in that the ultimate purpose and effect of these proceedings is to exercise the exclusive jurisdiction of this Court to make a declaration that the mining activities constitute prohibited development or, alternatively, require development consent. The applicants do not seek a declaration regarding the validity of ML 1386. It is not necessary in the circumstances for me to finally decide the question in these proceedings because, arguably, neither this Court nor the Mining Warden have the jurisdiction to determine the issue of native title upon which the attack on ML 1386 is solely based. Firstly, the question does not arise because the challenge to the mining lease cannot be regarded as ancillary to the matter within jurisdiction. Secondly, there is no breach of the Mining Act alleged to bring the issue within s 296(p). Mr Larkin makes the valid point that s 296 of the Mining Act gives jurisdiction to the Mining Warden to hear and determine proceedings relating to a plethora of matters including, by way of examples, any demand for specific performance of any contract relating to an authority or mineral claim, any demand for debt or damages arising out of prospecting or mining and matters concerning partnership. It would be an extraordinary result if the jurisdiction of any other Court, including the Supreme Court, was thereby excluded simply because the subject matter in dispute related, no matter how peripherally, to a mining authority. It might be that, following the reasoning in Taylor, once the Mining Warden becomes seized of the proceedings, the Mining Warden thereafter has exclusive jurisdiction to determine the matters referred to in s 296. That is not the case here. In the present circumstances the Court is not satisfied that s 296 of the Mining Act has the effect of direct or implied ouster of the jurisdiction of this Court to hear a challenge to the validity of the mining lease if the proceedings are otherwise within jurisdiction. Mr Larkin refers to Ashfield Council v Vodafone Pty Ltd (unreported 40162 of 1997 Cowdroy AJ 5 September 1997) and Manly Council v Telstra Corporation Ltd (unreported 40297 of 1997 Sheahan J 25 February 1998) as cases where it was necessary to give consideration to the effect of a Federal statute to determine whether activities complained of were exempt from the provisions of the EPA Act. There was no suggestion in either of those cases that the Land and Environment Court lacked jurisdiction to investigate whether the activities were protected by a Federal law. The Court accepts that it has jurisdiction to determine whether a native title holder is entitled to be regarded as an owner for the purposes of the EPA Act or the Local Government Act and further whether the NT Act has the effect of ousting the jurisdiction of this Court to determine whether native title exists. In other words, the Court has jurisdiction to determine whether or not a matter is within its jurisdiction. Mr Larkin contends that if the applicants are right in respect of their fundamental contention that the provisions of the NT Act render ML 1386 to be of no effect, then there is unambiguous jurisdiction in this Court to restrain activity in breach of the EPA Act. There are two problems that must be faced by the applicants in that respect. Firstly, this Court is not satisfied that the provisions of the NT Act have the effect on ML 1386 contended for. Secondly, it would not be within the jurisdiction of this Court to make a declaration in respect of the validity of ML 1386 for all purposes whereas, arguably the Federal Court may have that jurisdiction pursuant to s 213(2) of the NT Act. For reasons which I have already touched on, the detailed provisions of the NT Act impliedly oust any jurisdiction of this Court to determine native title issues particularly in circumstances where, as is the present case, undetermined claims have been lodged by the applicants. Cases such as Mason v Tritton (1994) 34 NSWLR 572 are distinguishable on that ground. The implied ouster results from the scheme of the NT Act helpfully summarised by Mr Hughston and referred to earlier. The conclusion is supported by s 220 of the NT Act which provides:- Division 2 - Amendment of other Acts Amendment of the Jurisdiction of Courts (Cross-vesting) Act 220. Section 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 is amended by inserting after paragraph (4)(b) the following paragraph: "(ba) the Native Title Act 1993 ; or". Although the Cross Vesting Act has no application to the jurisdiction of this Court, s 220 is a strong indication of legislative intention to deny jurisdiction to unrecognised courts. Stay Alternatively the second respondent advocates that a stay should be granted for the following reasons:- · it is inappropriate and not productive of efficiency in the administration of justice for the NNTT and the Land and Environment Court to be determining the existence of native title in right of the same persons, in multiple proceedings; · the NNTT and the Federal Court are the only appropriate fora for the determination of native title in this case given the specialised public participation and mediation procedures that those bodies are required to follow under the NT Act (see Priestley JA, with whom Gleeson CJ agreed, in Mason v Tritton at 600); · the Land and Environment Court is a completely inappropriate forum for the determination of these native title issues and the bringing of these claims, whilst the applicants' native title claims are on foot in the NNTT, is vexatious and oppressive and, on the principles in Oceanic Sun Line Special Shipping Company v Fay Inc (1988) 165 CLR 197, the Land and Environment Court should grant a stay; · no prejudice will be caused by granting of such a stay to the applicants, as they are not seeking interlocutory relief in these proceedings and will in any event have the native title issues in this case determined by the NNTT and the Federal Court in due course; and · the decision in The Wik Peoples v State of Queensland (1994) 49 FCR 1 at p 13 indicates that, as a prima facie rule, a stay should be granted where native title claimants seek to have a finding of native title made by the Federal Court prior to the determination of a native title application by the NNTT and the Federal Court, and that it is prima facie vexatious and oppressive for such a finding to be sought. This rule would apply with greater force, it is submitted, in the Land and Environment Court. The existence of the unresolved proceedings in the Federal jurisdiction is not of itself sufficient to establish abuse of process and to justify a stay. These proceedings, although involving the same subject matter in some respects, are not essentially the same cause of action. These proceedings are brought to establish a breach of the New South Wales planning and environmental laws. The cause of action in the Federal proceedings is to establish the existence of native title for all purposes. These proceedings therefore do not amount to an abuse of process on the ground that they are essentially for the same cause of action. A stay would not be justified on the sole basis that it is an essential element in both cases for native title to be determined. However in the Queensland Wik Peoples' case Drummond J concluded at p 6 that:- …. so far as the Federal Court is concerned, the Native Title Act operates to give effect in rem only to a decision of this Court made in proceedings commenced by application to the Registrar of the Tribunal under s 13(1) and then transferred to this Court under s 74 of that Act. The reasoning applied by Drummond J applies equally, if not more emphatically, to proceedings of this Court. His Honour's conclusion at p 13 is apposite:- As a prima facie rule, it is vexatious for a person to institute two separate proceedings in which the same issue is raised for determination. The principle is applicable whether the proceedings are both by way of court action or where one only is by way of action, the other being by way of an administrative process: see Slough Estates Ltd v Slough Borough Council [1968] Ch 299. Although the relief with respect to the applicants' claim to native title obtainable in proceedings under the Act differs from that obtainable in that regard in this action, the only difference is that while both lots of relief will determine exactly the same question, any relief claimed in the first-mentioned proceeding will bind a wider range of persons than that obtainable in the second-mentioned proceeding. I therefore think it would be impermissible for the applicants to have on foot the two proceedings here in question and that if that were to occur, one of the proceedings would be stayed. The conclusion is supported by the remarks of Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ in Waanyi at p 617:- If it be practicable to resolve an application for determination of native title by negotiation and agreement rather than by the judicial determination of complex issues, the Court and the likely parties to the litigation are saved a great deal in time and resources. Perhaps more importantly, if the persons interested in the determination of those issues negotiate and reach an agreement, they are enabled thereby to establish an amicable relationship between future neighbouring occupiers. To submit a claim for determination of native title to judicial determination before the stage of negotiation is reached is to invert the statutory order of disposing of such claims. Section 137 Mining Act - Privative Clause Section 137 of the Mining Act 1992 provides as follows:- 137. Limitation of right to challenge technical defects in authorities (1) The grant, renewal or transfer of an authority may not be challenged in any legal proceedings commenced later than 3 months after the date of which notice of the grant, renewal or transfer of the authority is published in the Gazette. (2) This section has effect regardless of the provisions of any other Act, but does not apply so as to affect any appeal from proceedings commenced within the 3 months referred to in subsection (1). Mr McClellan relies upon the approach of Dixon J in R v Hickman ex parte Fox and Clinton (1945) 70 CLR 598 followed by the Court of Appeal in Londish v Knox Grammar School & Ors (unreported CA40323/97 22 December 1997) which he says prevents legal challenge to the Minister's decision to grant ML 1386 on 9 April 1996 if that grant:- · did not on its face exceed the authority conferred by the Mining Act; · was a bona fide attempt to exercise the powers conferred by that Act; and · related to the subject matter of the Mining Act. The protection afforded by s 137 relates only to ML 1386. It does not operate as a bar to proceedings to determine native title or to ensure that native title is protected. The argument only arises in the event that the Court accepts the applicants' submission that the mining lease is rendered invalid for all purposes by the operation of ss 22, 23 or 28 of the NT Act. Section 104A of the EPA Act, which was the subject of the decision in Londish , provides that "the validity of the consent shall not be questioned" which contrasts with the provision of s 137 which provides that the grant of an authority " may not be challenged". I agree with Mr McClellan that, for present purposes at least, there appears to be no relevant distinction between the two provisions. The operation of s 28 of the NT Act is not affected by s 137 provided the challenge is brought within the three month period. Section 8 of the NT Act, which discloses an intention not to affect the operation of any law of the State, reinforces the arguments advanced by the respondents in these proceedings. There is no relevant inconsistency for the purposes of s 109 of the Commonwealth of Australia Constitution Act because the administrative act of granting ML 1386 remains valid and operative until it is declared to be invalid ( Calvin v Carr and Macksville and District Hospital v Mayze (1987) 10 NSWLR 708). If s 137 of the Mining Act operates to prevent a challenge to the grant of the mining lease in this Court, as a State court, then there can be no determination of validity under the NT Act. The purpose of a privative clause is to ensure that persons entitled to rely on the administrative act protected by it can act with certainty and free from the prospect of challenge after the relevant period has expired. If the Court had been persuaded that the effect of the NT Act is to render the mining lease invalid for all purposes, such a challenge is precluded by s 137. Mr McClellan concedes that if the effect of the NT Act is as he contends and limited only to the impact on native title, then s 137 would not operate to prevent the grant of appropriate relief, for example, in the form of a declaration that the grant of the mining lease has not operated to extinguish native title. The NT Act was designed to achieve the protection of native title. It was not designed to bring down permissible acts for all purposes. If the Court was otherwise satisfied that the matters raised by the applicants are within jurisdiction and that this Court is an appropriate forum, s 137 would not operate to limit the right of challenge to the effect of ML 1386 on native title. There is some force in the argument put forward by Mr Larkin that the time of three months prescribed by s 137 is inconsistent with the time frame for giving notice and entering into negotiation required under Subdivision B of Division 3 in Part 2 of the NT Act. Nevertheless, having regard to the limited effect on validity, which the Court accepts, it is not necessary to ultimately decide this question, and nor is it appropriate to do so. Conclusion The Court makes the following findings in respect of the matters relating to the jurisdiction of the Land and Environment Court and raised by the second and third respondents' Notice of Motion for the purpose of determining whether there is any matter that is within jurisdiction. 1. The challenge to the validity of ML 1386 is not a matter ancillary to any other matter that falls within the jurisdiction of the Land and Environment Court. 2. The Land and Environment Court lacks jurisdiction to make any declaration or other order in respect of the validity of ML 1386. 3. The Land and Environment Court is an inappropriate forum to determine the existence of native title. 4. The applicants, as applicants for determination of native title rights or even as holders of native title, are not owners of land for the purposes of, and within the meaning of that term as it is defined in, the EPA Act. 5. The provisions of s 77(1)(b) and s 77(2A) of the EPA Act do not create procedural rights for the benefit of the applicants in accordance with the NT Act. 6. A failure to comply with the provisions of the NT Act by the grant of ML 1386 cannot render the mining lease invalid except to the extent that it affects native title. 7. Section 137 of the Mining Act applies notwithstanding a failure to comply with the provisions of the NT Act by the grant of ML 1386. 8. The NT Act provisions have the effect of ousting the jurisdiction of the Land and Environment Court to determine the existence of native title. 9. Section 74 of the Mining Act operates for the purposes of the EPA Act notwithstanding any breach of the NT Act by the grant of ML 1386. 10. It is not necessary to determine the existence of native title to make a finding that is within jurisdiction. Orders The Court makes the following orders:- 1. Paragraphs 10, 11, 12, 13 and 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 of the applicants, Second Further Amended Points of Claim are struck out. 2. Paragraphs 5 and 6 of the Second Further Amended Application Class 4 are dismissed. 3. Costs reserved. 4. The exhibits are retained. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 42 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT ASSOCIATE DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.