Eora People - Brown v NSW Minister for Land & Water Conservation

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 In this matter the respondent, NSW Aboriginal Land Council, which I will refer to as the Council, the Land Council or the representative body, as may be appropriate, seeks to have dismissed what it, by design, calls "the native title claim lodged in the National Native Title Tribunal on 1 May 1998 by the first respondent to this notice of motion". In substance what is put to the Court on behalf of the applicant Council is that the principal proceedings are incompetent. Those proceedings are an application for the recognition of native title as being held by the applicant and "the Eora people" over what may, for present purposes and despite some inaccuracy, be described as all the parks, public gardens and public recreational facilities of a parklike character in the Sydney basin between the Parramatta and Georges Rivers, bounded on the west partly by the Georges River and partly by Woodville Road, and (apart from the suburbs close to La Perouse and Sydney Airport) extending east to the 100 metres bathometric contour of the seabed. The pre-1993 Native Title Act and purported compliance with it 2 The application (or purported application) was filed under the Native Title Act 1993 ("the Act") before its amendment. As it then stood, the scheme of the Act was to encourage the making of applications. I use the word "encourage" because that conclusion is justified when one compares the form of the pre-amendment legislation with the form of the post-amendment legislation. Thus, an application might have been made for a determination of native title by, among others, "a [single] person... claiming to hold the native title either alone or with others": see the table set out within s 61(1). However, under s 61(2), the application was required to be in the prescribed form and it was required also to "contain such information in relation to the matters sought to be determined as is prescribed". By comparison with the post-amendment requirement, the information required to be given in an application was relatively easily compiled. However, it included, by way of a requirement of the prescribed form, the following: "Details of the native title rights and interests which the applicant says are possessed under traditional laws and customs observed by the claimant group". In the same part of the form, applicants were informed "[a]lso, give information about any connection that exists or did exist between the applicant(s) and any persons with whom the applicant(s) claim(s) to hold title, or the ancestors of the applicant(s) and those other persons, and the area covered by the application". 3 In response thereto, the applicant furnished the following: "Gwen Brown (the aplicant)'s grand mother was a decendant of (Panyinway) tribal chief, her granmother was born at Elizabeth Bay in the 1800s, who still has two (2) daugthers and one son: living: her families occupied the land here since time immemorial. There is thousand's of sacre site's, middens place's of spiritual and cultural significance, in which we would like to get involved with the authoritys to manage these-artefact's." 4 Later in the part of the form headed "Draft Determination", where the applicants were told by the form to provide"[a] draft of the determination the applicant(s) will ask the Tribunal to make if the application is unopposed", the applicant included the following: "We would like to have a partnership with all authorities in manageing our sacred sites, midden's and artefact's. Also compensation to help create employment." 5 Under the pre-amendment Act, the scheme of the claimant process was that a claim, made by application, would be lodged with the National Native Title Tribunal and it would then be registered. There would thereupon be informal notification to the Minister and the Native Title representative body. Pursuant to s 63, if the requirements of s 62 were complied with, the Registrar was required to accept the application unless of the opinion that the application was frivolous or vexatious, or that the prima facie claim could not be made out. If the Registrar considered that the s 62 requirements were not complied with, he or she was to refer the application to a Presidential Member of the Tribunal. Under s 64(2), if having given the applicant an opportunity to be heard, the Presidential Member was, and remained, of the view that those requirements were not complied with, the Presidential Member was obliged to direct the Registrar not to accept the application. 6 Section 62 imposed requirements that: "1. [a] native title determination application by a person ... claiming to hold the native title in relation to an area must: (a) be accompanied by an affidavit sworn by the applicant that the applicant: (i) believes that Native Title has not been extinguished in relation to any part of the area; and (ii) believes that none of the area is covered by an entry in the Native Title Register; and (iii) that all of the statements made in the application are true." 7 The affidavit had also to contain all information known to the applicant about interests held in relation to the area concerned by persons other than as native title holders. These also needed to be a description of the land or waters over which the native title was claimed and the name and address of the person who was to be taken to be the claimant. 8 In terms of the s 64 processes, they addressed only the s 62 requirements. These did not include the requirement that the application be in the prescribed form or contain the prescribed information. That requirement was imposed by s 61(2). 9 To my mind, it is inconceivable that it would have been the parliamentary intention that an application might not proceed because, for example, the mere address of the person who was to be taken to be the claimant (a s 62 requirement) had been omitted from the application, notwithstanding that there was no identification or description (as s 61 and the prescribed form required) at all of the persons who, apart from the person taken to be the claimant, were those for whose benefit the proceedings were instituted. What this underlines is that a proper reading of the Act indicates that the requirements as to the prescribed form were integral to the very existence of an application. 10 Mrs Brown, the applicant, who by leave of the court was represented by her husband Mr Brown and by a friend Mr Moore, has frankly and properly acknowledged through Mr Moore, that in the application as it stands, what appears as to the: "details of the native title rights and interests which the applicant says are possessed under traditional laws and customs observed by the claimant group" is quite inadequate. 11 What the Hon. PL Seaman QC, then a Presidential Member of the National Native Title Tribunal, said in National Native Title Application Number NC97/1 (reasons for decision of 29 July 1997) regarding descriptions of claim areas in native title determination applications is, in my view, indicative of the correct approach generally to the adequacy of compliance with the requirements of s 61 and s 62 of the pre-amendment Act: "The Tribunal approaches the question of the adequacy of descriptions of claim areas in native title determination applications in a flexible and common-sense way. There must however be a description which is sufficiently precise to enable the processes of the Act to be applied in the circumstances of the particular application." 12 Applying the tests of flexibility, common sense and sufficient precision to enable the processes of the Act to be applied, in the circumstances of this particular application it is quite clear that the information which was provided is so inadequate that the conclusion is compelled that a requirement has not been complied with. 13 One can at least deduce that, apparently, no claim to exclusive possession was being made. As the Hon. JH Wootten QC, Presidential Member of the Native Title Tribunal, pointed out in reasons for decision in National Native Title Application Number NC97/3, given on 24 April 1997, in cases where something other than exclusive possession is being sought: "…it is of great practical and procedural importance that the scope of the claim be spelt out. One [such] case is where the claim is by a "people", but it is acknowledged that some other people shared the occupation use or enjoyment of the land ... In such cases the other people will need to know the nature of the non-exclusive rights claimed, in order that they can decide whether they wish to resist the claim, or at all events become a party to the proceeding. The rights of both peoples will need to be recorded in the determination (s 225). The other case in which the statement of the nature and scope of rights may be of central importance is where the claim is not made on behalf of a people, but by an individual or by a sub‑group such as a clan ... Where such rights are asserted it will be of the greatest importance that other members of the community, and the representatives of the community itself know what is claimed. In the administration of the Native Title Act itself it will be important to know the nature of the rights claimed in order [that the Registrar may decide] whether an application is "frivolous or vexatious" (s 63(1))... Knowledge of exactly what is claimed would also be needed to decide whether "a person's interests may be affected by a determination in relation to the application" so as to entitle the person to party status (ss 68,69)." 14 This in my respectful opinion is obviously correct and, judged also by such considerations, the information as provided in this case is quite insufficient. 15 The conclusion I come to is that there was not a valid application made under the pre-amendment Act. Transitional provisions and power to amend 16 There was, however, something which purported to be an application. I am prepared to assume that the transitional provisions, made consequent upon the amendment of the Act, were intended to have a beneficial meaning for those who believed themselves to be applicants under the previous Act, where there was a de facto application which may not have been validly made for non-compliance with s 61 or s 62 of the pre-amendment Act. 17 Part 3 of Table A in the Table of Amendments dealt with - "Application of amendments relating to section 61 applications: proceedings relating to determinations." Item 5 therein provided that: "The table in item 6 sets out various situations that may exist in relation to an application that was given to the Native Title Registrar as mentioned in section 61 of the old Act, and certain consequences of the commencement of this Act." Item 6 identified the following "situation at the commencement of this Act", namely: "Application: (a) is being processed; or ... (c) has been accepted but the Registrar has not started giving notification." Item 6 goes on to say that the consequences should be: "Application is taken to have been made to Federal Court." 18 This shows that something which might be called an application and which had begun to be "processed", although it might ultimately not be accepted by the Registrar, was intended to be "taken to have been made to" this Court. 19 Reading the legislation against interference with what might have been some possibly vested right, it seems to me that the application should be given the same status, after the commencement of the amending Act, as before it: that is to say, something purporting to be an application but which was defective for non-compliance with the Act. 20 Under the amended Act the legislative scheme is somewhat different. The requirements as to what is to be included in the application, principally contained in s 61 and s 62, are far more onerous than before. However the ability to amend, rather than the necessity to begin again (as in the case of the pre-amendment Act) for non-compliance, appears having regard to s 64 of the Act as amended, to be greater. 21 I think that I would have power to permit the applicant to amend the existing application. Amendment or strike-out? 22 The question then arises as to how that discretion, which I assume I have, should be exercised. In the first place it should be noticed that, if I were to exercise it, that would actually give the applicant a right which she did not have under the pre-existing legislation in respect of her own default. It would not seem to me to be right to do that, except on condition that she also amend the application to comply now with the requirements of the Act as amended. Onerous as those requirements are, they are nevertheless directed to ensuring authenticity of the process for making a native title claim, both as to identification of the claim area and the kinds of interests claimed, as well as to identification of those who would be the beneficiaries of the claim and how it is said that they are entitled to native title in respect of the land and waters concerned. 23 The Land Council submits that I should not exercise a discretion now available, to cure a radical defect in the pre-amendment institution of the claim. The relative ease with which claims might have been made under the pre-existing legislation is now something of an historical anomaly, and should not have its scope enlarged except where necessary. Ms Phillips, who appears for the Council, also points out that, in this case, if the claim were to be amended to comply with the Act, that would be no less onerous than starting again. 24 Mr Moore, on behalf of the applicant, in response to a question from me in the course of submissions, indicated that the applicant's preference for being allowed to amend rather than start again really came down to a matter of wishing to be seen to have "a small win," rather than what I suppose is a small loss. 25 In the background, one can readily infer that there are cultural and political questions concerning authenticity, in the broad as well as in the narrower sense of authorisation, of the making of this claim by Ms Brown and, it is foreshadowed, a relatively small number of other named persons. I do not wish to enter into this. There is doubtless a good deal to be said about the matter and it may be necessary ultimately in proceedings under s 66(e) for the Court to hear some such questions. I do not denigrate those considerations. I do not say it would be illegitimate to have regard to them, either by the applicant in the principal proceedings or even by the Court. But there are other considerations. 26 The present applicant has not been able, it appears, as yet to obtain skilled legal representation. From what one can glean as to the nature of this claim, its complexities of conceptualisation and proof are such that, as a practical matter, anything like adequate presentation of it will be quite impossible unless the applicant and those who stand behind her have such legal representation. Mr Moore is hopeful that they will. To the extent that that is so, it is infinitely more desirable that the legal representation be available sooner in the processing of a claim rather than later, so that the matter can be correctly conceptualised and pleaded from the beginning. 27 There are already other claims that may overlap, at least in part, the area that is the subject of this claim. It may well be that questions arise as to compliance with the Act in those cases, too. It seems to me that the objects of the Act, including arriving at agreement if possible as to who are the appropriate native title claimants, or at least minimising the scope for such disputes, and aiding the legitimate role of the Land Council, as a body charged by the Act with the task of seeking to facilitate authentic and orderly claims, will be better served if none of those who might become claimants have the merely adventitious advantage of, as it were, being first in the door, if there is any such advantage. Being the first to claim may not provide any strictly legal advantage, but it may have political or cultural significance. It is my impression, from a long acquaintance with this matter, that a fresh start will likely produce the best result. 28 I think that a fresh start would also be the most orderly way of dealing with matters from the perspective of the Court. It seems to me that this is a legitimate matter to take into account. The Court is not to blame for the fact that there were some defects in the original process. Nor is it to blame for the fact that the Land Council, I have no reason to think other than properly, has come to the view that it must reluctantly make the application which it has pressed today. I say nothing against Mrs Brown, let alone Mr Brown and Mr Moore, for whose goodwill and constructive approach to these matters, I have come to have a deal of respect. However, already there has been some tendency for claimants in native title cases, and those representing them, quite wrongly and unfairly to assert that matters that have been delayed, for no reason for which the Court is to blame, have been delayed because of delays in the Court's processes. That is not the case here, nor should any opportunity be permitted for any such misunderstanding to arise. Disposition 29 It follows that my conclusion is that the Land Council's application in substance succeeds and the principal application in the proceedings must be dismissed. The Land Council seeks no costs nor, as I understand it, does the New South Wales Government, the other respondent in the principal proceedings. Accordingly, there will be no order as to costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.