Commonwealth v Coe

• 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION 13261/00 DOWD J

26 February 2002 Commonwealth of Australia v COE & ORS

Judgment 1 DOWD J: These proceedings were commenced by way of Summons by the plaintiff ("the Commonwealth") against the first named defendant, described as "Ms Isabel Coe as representative of persons collectively terming themselves members of the "Aboriginal Tent Embassy" presently on Cockatoo Island", seeking an order restraining the first named defendant and persons, then on Cockatoo Island, from entering the land known as Cockatoo Island in Sydney Harbour. A further order sought to restrain the first named defendant and other persons from remaining upon the land, and an order to remove all their tent equipment and property from Cockatoo Island. 2 The defendant, Isabel Coe, brought a cross-claim, filed on 22 January 2001 seeking declarations:

(1) That the sovereign rights of the indigenous people of Australia have never been ceded to the Crown;

(2) that the occupation and colonisation of New South Wales was not a valid act of sovereignty over the land and waters of the Australian Continent including Cockatoo Island and Sydney Harbour;

(3) a declaration that the cross-claimants are (sic) the lawful representatives of the sovereign nation to occupy Cockatoo Island for the purpose of ceremony and to set in place the treaty process". 3 I briefly set out the short facts of the matter. On 20 November 2000, the defendant and some nine others took up residence on Cockatoo Island as a result of which the Summons was issued. The matter eventually came before Hulme J who ordered the defendant and others to leave the Island pending trial. His Honour stayed the judgment until 3 January 2001 if leave to appeal was sought by 27 December 2000. 4 The defendants filed a motion to strike out the Summons and a motion in the Court of Appeal to stay the orders of Hulme J. On 27 December 2000, the defendant lodged an application for leave to appeal against the decision of Hulme J, returnable 27 December 2000. 5 On 27 December 2000, Beazley JA heard the application for stay and stayed the orders of Hulme J until 12 February 2001, being the date for hearing of the application for leave. On 31 January 2001, the defendant filed a motion in the Court of Appeal to vacate the leave hearing and stay the order of Hulme J. 6 The matter came before the Court of Appeal comprising Mason P and Beazley JA on 12 February 2001. The Court continued the conditional stay pending judgment. 7 On 5 March 2001, the judgment orders of the Court of Appeal were that the leave to appeal be refused and the conditional stay of the decision of Hulme J expire on 12 March 2001. 8 On 13 March 2001, the defendant and others left Cockatoo Island. On 10 April 2001, the Commonwealth filed a Notice of Motion, seeking summary judgment to strike out the defendant's Notice of Motion and cross-claim, returnable 23 April 2001. On 11 April 200, the defendant filed a motion to dismiss the Summons and expedite hearing of an earlier Motion to strike out the Summons and to discharge the injunction. The determination of these Notices of Motions are the matters now before the Court. 9 I have not attempted to include all other interlocutory proceedings that took place in addition to what has been set out above. 10 Leave to represent the defendant was granted to Mr Alan Oshlack, who is a public interest advocate and Native Title Researcher who had been previously granted leave in several appearances before the Court, but not generally. The Commonwealth was allowed to file an Amended Notice of Motion, the first claim of which sought that the proceedings continue under the title: "Commonwealth of Australia v Ms Isabel Coe as representative of persons collectively terming themselves members of the "Aboriginal Tent Embassy" which shall include Robert Corowa, Tom Doolan, Borrawang Ingram, Carol Mungo, Bud Smith, Greg Jones, Mark Taylor, Nyandi Williams, Gillawar Murray". 11 In the Amended Notice of Motion, the pleadings were then amended to: "Commonwealth of Australia v Isabel Coe, Robert Corowa, Tom Doolan, Borrawang Ingram, Carol Mungo, Bud Smith, Greg Jones, Mark Taylor, Nyandi Williams and Gillawar Murray, being those persons formally on Cockatoo Island". 12 The balance of the matters that remained in issue between the parties were as claimed in the Commonwealth's Notice of Motion: "(2) The Defendants' Notice of Motion dated 22 December 2000 and 10 April 2001 be struck out. (3) The Defendants' Cross Claim dated 18 January 2001 be struck out. (4) The Defendants be restrained from entering upon the land known as Cockatoo Island, Sydney Harbour, being land comprised in Folio Identifier 1/549630 other than in exercise of the rights of members of the public, pursuant to Part 13 Rule 2. (6) That the Summons filed 8 December 2000 be otherwise dismissed". 13 There were two Notices of Motion on which the Defendants sought to rely, that of 22 December 2000, seeking: "(1) By virtue of Section 75(i) of the Constitution the Plaintiffs Summons filed on the 7th of December 2000 be struck out. (sic) as the Supreme Court of NSW is not vested with the jurisdiction pursuant to Section 38(a) of the Judiciary Act 1903. (3) In the alternative pursuant to section 40(1)(b) of the Judiciary Act 1903 the proceedings be adjourned to allow sufficient time for the Defendant to remove the matter to the High Court. (4) Further or in the alternative the Summons be summarily dismissed as disclosing no reasonable cause of action. (5) Costs to the Defendants. (6) Any order or direction the honourable court deems appropriate." 14 A Notice of Motion filed 11 April 2001 sought: "(1) That the plaintiff's Summons of the 8th of December be dismissed. (2) In the alterative the Court directs the Defendants Notice of Motion of the 22nd of December 2000 be expedited. (3) That the injunction of the 22nd of December 2000 be discharged. (4) In the alternative that the injunction of the 22nd of December 2000 be stayed until further order. (5) That the paragraphs 1 to 5 of the Plaintiff's Notice of Motion of the 9th of April 2001 be dismissed (6) An order that the Plaintiff pay the Defendant damages for any hurt or suffering caused to them by the institution of these proceedings. (7) An order that the Plaintiff further pays to the Defendant by way of compensation all sums of money as assessed for legal representation, professional support and disbursements for all matters including the Cross Claim, arising in relation to these proceedings. (8) The Cross Claim be upheld. (9) In the alternative the Court adjourns The Cross Claim to a further mention and directs the Defendant within 21 days to file and serve Notices of a Constitutional Matter to the Attorney Generals of the States and Territories pursuant to section 78B of the Judiciary Act 1903. (10) Liberty to the parties to apply on 48 hours Notice. (11) Costs of the motion". 15 It was agreed between the parties that the Notices of Motion would be heard concurrently and the hearing proceeded on that basis. The Commonwealth declined to seek orders for costs. 16 The evidence for the Commonwealth firstly comprised a chronology of the Cockatoo Island title which showed that on 1 March 1901, the land vested in the Commonwealth on the transfer of defence functions from the State of New South Wales to the Commonwealth. 17 In 1923, by the Shipping Act 1923 (Cth) the right title and interests of the Commonwealth were transferred to the Australian Commonwealth Shipping Board. In 1933, the Cockatoo Island Dockyard Agreement Act 1933 validated an agreement for lease of Cockatoo Island from that Board to Cockatoo Dock's Engineering Co Ltd for twenty-one years from 1 March 1933. In 1950, the title to Cockatoo Island and Schnapper Island were transferred to the Commonwealth and in November 1967 the Maritime Services Board (MSB) transferred reclaimed land to the Commonwealth to add to the original thirty-two acres, three roods and twenty-five-and-a-quarter perches, to make the total land now owned by the Commonwealth forty-nine acres, two roods and two-and-three-quarter perches. 18 A Crown Grant was issued in 1968 formalising the Commonwealth's title to Cockatoo Island. 19 On 28 August 1968 a new title under the Real Property Act 1900 was issued consolidating the original Crown Grant and the MSB transferred land, the Commonwealth being shown as the registered proprietor. 20 The further evidence of the Commonwealth was that following the decision of the Court of Appeal, refusing leave to the Defendant and the remaining persons in the heading of these proceedings have vacated and have not returned. Those persons other than Isabel Coe were identified in the proceeding before Hulme J as being the parties to these proceedings.

21 Gregory George Kathner, Senior Government Solicitor, is in charge of the Civil Litigation Team at the Sydney Office of the Australian Government Solicitor. His evidence was that he had been in Court on each of the substantive hearings and at no time had any arguable basis being suggested for any right for the defendants to remain in or resume occupation of Cockatoo Island. He had heard the arguments that the original proclamation and Governor Phillip's commission may not have covered the Islands contained within Sydney Harbour, and that the Commonwealth may have abandoned its title to Cockatoo Island, an argument which developed based on the notation on the Certificate of Title to Cockatoo Island. 22 His evidence was that he was not aware of any sensible argument which may be advanced in support in any claim adverse to the Commonwealth's title to Cockatoo Island. His further evidence was that no claim has been made for any right based on Native Title nor could there be in light of the decisions in the High Court in Mabo v Queensland (No 2) (1991-1992) 175 CLR 1, Fejo v Northern Territory (1998) 195 CLR 96, and Bodney v Western Australia Pty Ltd [2000] FCA 1609. 23 In relation to the cross-claim by the defendant dated 18 January 2001, Mr Kathner's evidence is that he can see no arguable basis for the claims made, particularly in the light of Coe v Commonwealth of Australia (1993) 68 ALJR 110 and Walker v New South Wales (1994) 182 CLR 45. 24 The defendant's evidence was that she is a member of the Wiradjuri Nation, born in Cowra and that she had been a supporter of the Aboriginal Tent Embassy for the last twenty-eight years. Her evidence was that on 20 November 2000, the Aboriginal Tent Embassy established a "Consulate" presence on Cockatoo Island by bringing, to use her words, "the sacred healing fire of peace and justice and carry out smoking ceremonies on the Island."

Ms Coe said that the Aboriginal Tent Embassy Consulate is situated on Cockatoo Island in order to meet with Ministers and representatives of the Commonwealth Government, and to sit with the representatives of the Consulate to negotiate arrangements towards a treaty recognising the sovereign rights of the Aboriginal people in this land. 25 Her evidence is that the sovereign Aboriginal Nations represented by the embassy have never ceded land or waters to the British Crown or the Australian Governments, and that her purpose for being on Cockatoo Island is to bring peace, justice and healing to the land and that the engagement in the treaty process is to halt, what she terms is, the genocidal war being waged over the past two-hundred-and-twelve years against the Aboriginal people. She then gave a history of the Aboriginal Tent Embassies and the various locations and premises that they have occupied over the past thirty years. 26 Ms Coe's evidence was that at a Corroboree in Canberra in 1998 a fire of peace and justice was lit. The ashes from that fire were taken to various locations within Australia and taken to Cockatoo Island on 20 November 2000. Ms Coe said it is the intention of those that went to Cockatoo Island to remain in order to continue peace negotiations and the treaty process. The intentions were also to heal the Island and to mourn the old people who died bearing the brunt of the first invasion, and also to heal the pain and suffering on Cockatoo Island suffered as a result of the penal colony, children's institutions and mental asylums. 27 Ms Coe asserted that the removal of the Aboriginal Tent Embassy on Cockatoo Island is a denial of Aboriginal Human Rights, the right to practice ceremonies; to mourn Aboriginal dead and Aboriginal sovereignty. She states that the Aboriginal Tent Embassy represents all Aboriginal Nations of Australia, standing as a symbol of the struggle to stop the genocidal war against Aboriginal people, to recognise Aboriginal sovereignty and to engage in a peace process with a treaty. 28 Since the issues sought to be determined by the Commonwealth is that there is no triable issue, it is clearly desirable firstly to deal with the Notices of Motion of the defendants. 29 The first claim of the defendant is that pursuant to s75(i) of the Constitution of Australia, the Summons be struck out as there is no jurisdiction pursuant to s38(a) of the Judiciary Act 1903, as being "matters arising directly under any Treaty". 30 Mr Oshlack, on behalf of the defendants, relied on Bluett v Fadden 1956 SR NSW 254 as authority for the proposition that the matters before the Court arise under a treaty. That authority holds that a treaty is not justiciable until it has received legal sanction and has been carried into operation by appropriate legislative action. It was argued that the treaty proposed between the Aboriginal People of Australia and the Australian Government is a treaty that brings the matter within the authority of the High Court to adjudicate, and that a treaty process constitutes a treaty that is within the Constitution. 31 It was further argued for the defendants that Mabo v Queensland holds that the doctrine of Terra Nullius does not apply, and as there is an Aboriginal Sovereign Nation, the next step after conquest and the purpose of the Tent Embassy at Cockatoo Island was to be a place where sovereign nations can interface and that the defendants are the authorised representatives of the Sovereign Aboriginal Nation. 32 It is conceded by Mr Oshlack that the Commonwealth Constitution invests power in the Parliament to vest State and Federal Courts with jurisdiction, which it clearly has done. The plaintiff relies on 39(2) of the Judiciary Act 1903 which gives power to invest original Commonwealth jurisdiction subject to certain limitations which are here not relevant. 33 I have had regard to the decision of Coe v Commonwealth of Australia [2001] NSWCA 36 earlier referred to in the decision of Hulme J in Coe v The Commonwealth of Australia of 22 December 2000. In the Court of Appeal comprising Mason P and Beazley JA, their Honours held that this is not a claim based on an assertion of Native Title and that no asserted sovereignty creates immunity on the defendants with respect to the statute law of the Commonwealth and of New South Wales. 34 The Supreme Court clearly has jurisdiction to deal with the matter. The question of the issue of sovereignty has clearly been dealt with by the High Court in Coe v Commonwealth (1979) 24 ALR 111, Mabo (No2), Coe 1993, & Fejo. It was also held by the Court of Appeal in its decision in these proceedings that the defendants' argument was untenable. The Supreme Court's jurisdiction to exercise Federal jurisdiction, if there were any Federal issues in these proceedings, is conferred by the Commonwealth Constitution. The argument that s38 of the Judiciary Act excludes the jurisdiction of the Supreme Court since there is not treaty in existence (Ex Parte Findlayson (1997) 72 ALJR 73) and clearly the High Court decisions have rejected the concept of the applicability of a treaty to what is proposed by the defendants. 35 There is also no basis for removal to the High Court as proposed by the defendants pursuant to s40(1) of the Judiciary Act 1903, as there is no issue involving interpretation of the Australian Constitution. 36 The defendants also seek summary dismissal as the Summons discloses no reasonable cause of action. 37 An examination of the circumstances of the entry onto the land of the Commonwealth and the ownership of the land of Cockatoo Island, as evidenced by the Certificate of Title and the trespass of the defendant, shows that there is a reasonable cause of action and therefore there is no basis for summary dismissal. 38 The defendants also seek compensation for hurt and suffering by the institution of these proceedings and the making of an order for costs. 39 Nothing has been submitted by Mr Oshlack or in writing in support of any claim for compensation, and no basis for such a claim has been made out before me. 40 The Cross-Claim which the plaintiff proposes to strike out makes the following claims: "(1) A declaration that the Sovereign rights of the Indigenous people of Australia have never at anytime been ceded to the Crown. (2) A declaration that the occupation and colonisation of New South Wales was not a valid act of sovereignty by the Crown over the Land and Waters of Cockatoo Island and Sydney Harbour. (3) A declaration that the Cross Claimants are the lawful representatives of the Sovereign Nations of the Aboriginal People to occupy Cockatoo Island for the purpose of Ceremony, healing and to set in place the treaty process (4) An order that the Cross Defendant, its employees, contractors or servants cease any further unauthorised occupation of Cockatoo Island. (5) An order that the Cross Defendant remediate the land and compensate the Cross Claimant for all damages and hurt caused by them from unlawful trespass of Cockatoo Island. (6) Costs". 41 The pliantiff's application is made under Pt 13.2 SCR which empowers the Court to give summary judgment where the applicant for summary judgment satisfies the Court that there is no real question to be tried. A summary judgment is not appropriate if the claim raises a triable issue. Any evidence disclosing a real issue of fact to be tried should cause the application to be refused. The Court also requires evidence of the belief in the absence of a defence. The Court has a general discretion as to the making of an order for summary judgment. 42 There is clear evidence from the Affidavit of Mr Kathner as to his belief of an absence of any defence raised by way of Cross-Claim. In relation to the Cross-Claim, the first issue is that the Commonwealth has no valid title to Cockatoo Island and therefore the injunction of Hulme J has no validity. The defendants assert that they are the lawful representatives of the Nations of Aboriginal People and that sovereignty in the lands is vested in them. 43 The argument concerning sovereignty has been dealt with in the decisions of Coe v The Commonwealth (1979) 24 ALR 118 and the other decisions that I have listed earlier in these reasons. The Court of Appeal decision of the appeal from the decision of Hulme J reaffirmed that the defendant's argument was untenable. 44 No basis has been shown in law for the claim that the occupation and colonisation of New South Wales was not a valid act of sovereignty, nor could it be in light of the High Court's decisions in relation to the issue of sovereignty be maintained. 45 I rely particularly on Mason J (as he then was) when he held and as later applied in Coe (1979) at 596: "In so far as the plaintiff's case as pleaded rests on a claim of continuing sovereignty in the aboriginal people it is plainly unarguable. It is inconsistent with the accepted legal foundations of Australia deriving from British occupation and settlement and the exercise of legislative authority over Australia by the Parliament of the United Kingdom, involving the establishment by statutes of that Parliament of the colonial legislature and subsequently the establishment of the Commonwealth of Australia and the States as constituent elements in the Federation". 46 It is clear that the on the evidence before me that title to the Cockatoo Island is vested in the Commonwealth. The production of a Certificate of Title under the Real Property Act 1900 sufficiently evidenced the right of ownership and such an owner has a right to restrain an actual threaten to trespass (Patel v W H Smith (Esiot) Ltd (1987) 1 WLR 853). Even if one were to examine Governor Phillip's first commission evidenced before me, it is abundantly clear by the terms of that commission that the land of which he was appointed Governor, included not only all waters contained within rivers and estuaries, but that it included any offshore Islands. 47 There is therefore no basis in the claim of sovereignty. The orders sought by the defendants for the removal of the Commonwealth from Cockatoo Island therefore has no foundation, nor can there be any basis for compensating the defendants for any damages sustained as there is no basis shown, nor could there be for any such claim in damages. 48 In accordance with the reasons set out in Singh v Varinder Kaur (1985) 65 ALJR 720 at 722, the plaintiff who carries the onus in this Application, haS shown that there is no real question to be tried and there is no substance in the defence sought to be established by way of Cross-Claim. 49 It is my view therefore that the Notices of Motion of the defendants, first of 22 December 2000, and secondly of 11 April 2001 should be dismissed. The cross- action of the defendants of 22 January 2001 should be struck out and the plaintiff is entitled to summary judgment on the Summons. 50 In light of the issues decided by Hulme J on 22 December 2000, which was further varied and ultimately upheld by the Court of Appeal in Coe v Commonwealth of Australia [2001] NSWCA 36, the plaintiff is therefore entitled to the orders sought in its Notice of Motion before the Court, as the basis for the interim judgment absent any defence is a proper basis for the injunction to become permanent. 51 In the event of there being any difficulty in the implementation of these orders, I will grant liberty to the parties to apply 52 The orders therefore that I make are as follow: (1) The Defendants' Notice of Motion dated 22 December 2000 and 11 April 2001 be struck out; (2) The Defendants' Cross Claim dated 18 January 2001 be struck out;

(3) The Defendants be restrained from entering upon the land known as Cockatoo Island, Sydney Harbour, being land comprised in Folio Identifier 1/549630 other than in exercise of the rights of members of the public; (4) That the Summons filed on 8 December 2000 be otherwise dismissed; and (5) That the parties have liberty to apply on seven days notice. oOo

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