Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba

CONSIDERATION 47 The reasons of the primary judge contained a concise summary of legal principle, extracted at [28] above. That summary was not challenged on this appeal. We adopt it as a correct statement of the principle. Argument on the appeal in connection with the proper construction of the phrase "based on" did serve to illuminate the meaning of the phrase beyond that given in the cases to which the primary judge referred. As Weinberg J said in Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 33: The requirement is one of sufficient connection. That there must be a close relationship between the designated characteristic and the impugned conduct is not in doubt - it is the nature of that relationship which is critical. 48 For the disposition of the appeal, it is sufficient to emphasise that to prove a contravention of s 9(1) of the RD Act it is not necessary to prove the existence of a subjective motivation to (for example) exclude the complainant based on his or her race. But that is not to say that the subjective motivations of the alleged contravener are irrelevant. Whilst the absence of a subjective motivation will not be determinative, proof of the existence of a subjective motivation to discriminate may point to a conclusion that the relevant act involved an exclusion based on race. 49 Expressed another way, proof of an intention to discriminate against a person by reason of his or her race will invariably support a contention that the act complained of was based on race. In cases where the act complained of is in the nature of a decision, it will be permissible to consider the matters upon which the decision turned. An analysis of those matters may disclose that the act was done by reference to race, even if there be no subjective motivation to discriminate on that basis. As Allsop J (as he then was) said in Baird v Queensland (2006) 156 FCR 451 (at [70]): … One does not look at the act divorced from the relevant distinction etc in assessing the relationship with race. It is the part of the act that is the distinction etc or the act involving the distinction that must be based on race. 50 It follows that the primary judge did not err in admitting the evidence of Ms Larwood. There was no objection to that evidence at first instance, whether on the ground of relevance or on the ground that Ms Larwood could not depose to the reasoning process of the members of the Council who together passed the resolutions complained of. Indeed, the evidence of Ms Larwood was in large part adduced by BDAC in cross-examination. 51 As to the findings based on Ms Larwood's evidence, BDAC faces the considerable difficulty that the evidence went unchallenged. In the circumstances, it was clearly open to the primary judge to conclude that the Council's reasons for adopting the franchise were as Ms Larwood had asserted them to be. However, that conclusion was not determinative. 52 The primary judge went on to conclude that the Council's justifications for adopting the franchise withstood objective scrutiny and that none of the justifications were based on race. It remains to consider whether his Honour erred in these conclusions. 53 BDAC submitted that the inference that the act of passing the resolutions involved a distinction, exclusion (etc) based on race arose by reason of the practical exclusionary effect of the outcome. In support of that submission, BDAC relied on the following facts or propositions: (1) The Council decided to conduct the ballot. (2) It was the Council and the Council alone that had decided the eligibility criteria to participate in the ballot. (3) BDAC's members are the native title holders for the area neighbouring the nominated sites. (4) The Council made its decisions without including the interests of the native title holders. (5) The Council decided on an eligibility criterion that the native title holders could not fulfil by reference to their status as native title holders. (6) The native title holders did not qualify for the ballot unless they could fulfil the s 14 criteria. (7) The native title holders clearly had an interest in the results of the ballot, because they have been recognised as holding native title in respect of the areas neighbouring the sites. (8) The native title holders include members of BDAC and those members are Aboriginal people. 54 The argument that persons holding native title rights and interests in land neighbouring the nominated sites had a unique interest in the results of the ballot may be readily accepted. Since Mabo No 2, the High Court has declared and explained the recognition by the common law of native title rights and interests and the nature of the connection between Indigenous people and their land and waters that give rise to them. In Love v Commonwealth of Australia [2020] HCA 3, Gordon J recently described the connection in this way: 289 The fundamental premise from which the decision in Mabo v Queensland [No 2] proceeds - the deeper truth - is that the Indigenous peoples of Australia are the first peoples of this country, and the connection between the Indigenous peoples of Australia and the land and waters that now make up the territory of Australia was not severed or extinguished by European 'settlement'. 290 That connection is spiritual or metaphysical: '[t]here is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole'. And the connection that persisted, and continues to persist, is a connection determined according to Indigenous laws acknowledged, and the traditional customs observed, by the Indigenous peoples. … 363 It is connection with land and waters that is unique to Aboriginal Australians. As history has shown, that connection is not simply a matter of what the common law would classify as property. It is a connection which existed and persisted before and beyond settlement, before and beyond the assertion of sovereignty and before and beyond Federation. It is older and deeper than the Constitution. … (footnote omitted) 55 And Edelman J said (at [451]): Native title rights and interests require a continuing connection with particular land. However, underlying that particular connection is the general spiritual and cultural connection that Aboriginal people have had with the land of Australia for tens of thousands of years. In other words, underlying a connection to any particular land is a general, 'fundamental truth ... an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole'. Sometimes events, including the cessation of the existence of a particular Aboriginal society, cause the loss of native title rights to land. But the loss of those rights to, and the relationship with, particular land, or even the effluxion of particular Aboriginal societies, does not extinguish the powerful spiritual and cultural connections Aboriginal people have generally with the lands of Australia. Those connections are inextricably part of Aboriginal identity as members of the broader community of the first people of the Australian land generally. The very words 'Aboriginal' and 'indigenous', aborigine or 'from the beginning', enunciate a historical, and original, connection with the land of Australia generally. The sense of identity that ties Aboriginal people to Australia is an underlying fundamental truth that cannot be altered or deemed not to exist by legislation in the same way that changing legislative definitions of citizenship cannot alter the fundamental truth underlying identity that is shaped by the core combined norms that metaphorically tie a child to Australia by birth and parentage. (footnotes omitted) 56 BDAC's oral submissions proceeded from the starting point that its members were excluded from the ballot. From there it was submitted that because all of BDAC's members were Aboriginal, the practical effect of the resolutions was to exclude BDAC's members from the franchise by reference to their Aboriginality. As we understand the submission, the special nature of the members' interests in the land neighbouring the nominated sites was relied upon as a basis to argue that no justification advanced by the Council could withstand objective scrutiny and that, accordingly, the adoption of the franchise must necessarily be characterised as an act referrable to the race of BDAC's members. 57 These submissions misstate the exclusionary effect of the resolutions. It is not correct to say that BDAC's members were excluded from the ballot. Membership of BDAC was not a characteristic that disqualified any person from the franchise. Rather, the effect of the resolutions was that possession of native title rights and interests was not included among the various qualifying criteria. The distinction is important. For as the primary judge concluded, any person who fulfilled one or more of the s 14 criteria could participate in the ballot irrespective of the person's race. Similarly, the classes of persons who were excluded from the franchise included persons who were Aboriginal and persons who were not. The primary judge was correct to find that these features of the resolutions militated against a conclusion that the relevant act involved an exclusion based on race. 58 It is true to say that the s 14 criteria included the possession by a person of an interest in rateable property in the Council area even if the person did not reside in the area. In that respect it might be said that there was a preference accorded to persons having interests in land that was rateable over those having interests in land that was not (such as land falling within the determination area). It is not insignificant that the non-rateable land in the Council area did not comprise only that land falling within the determination area but included all non-rateable land, irrespective of the race of the person having a recognisable interest in it. 59 It also true to say that the effect of the determinations of native title in favour of the Barngarla people was to recognise their possession of rights and interests in land by virtue of their connection with it as Aboriginal people. That circumstance called for a careful analysis of the resolutions to ascertain whether they were in any way referable to the Aboriginality of the native title holders. In undertaking that analysis, the primary judge did not confine himself to a search for express advertence to Aboriginality in the Council's deliberative processes. Rather, his Honour examined whether the various justifications for confining the franchise to the s 14 criteria could be said to be in any way "referrable to" the Aboriginality of the native title holders in the sense described in the authorities. 60 The primary judge concluded that each of the matters advanced by the Council to justify the resolutions were shown to be referrable to "sensible" concerns that were unrelated to race. Importantly, that part of his Honour's reasoning was not subject to effective challenge on this appeal, just as the asserted factual foundation for the Council's concerns was not effectively tested, whether in cross-examination of Ms Larwood or otherwise. 61 There may be cases in which an examination of the purported justification for an act reveals that the justification is nonsensical or cannot otherwise withstand objective scrutiny. In such cases, it may be open to infer that the act could not have been done for the asserted reasons and so render it more likely that the act was subjectively based on race in the requisite sense. There may be other cases in which the justification advanced for an act inherently contains within it a distinction, exclusion (etc) based on race and so support a finding that the act amounted to a contravention of s 9(1) of the RD Act, whether or not there was a subjective motivation to discriminate. 62 The justifications advanced by the Council in this case bore neither of these features. The inferences the primary judge drew from the unchallenged evidence are not shown to be affected by appealable error. We would respectfully draw the same inferences. 63 As has been emphasised, the subjective reasons for doing an act are not the only relevant considerations when determining whether the act contravenes s 9(1) of the RD Act. In the present case, however, it has not been shown that the relevant act was based on race notwithstanding the special interests of the Barngala people in the outcome of the ballot. 64 There being no appealable error of the kind alleged in the grounds of appeal, it is unnecessary to determine the question raised on the Council's notice of contention. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices McKerracher, Rangiah and Charlesworth.

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