Fritz v Torres Strait Regional Authority & Ors

REASONS FOR JUDGMENT 1 THE COURT: This is an application for leave to appeal from orders made by a single judge of this Court (Cooper J) on 5 March 1999, whereby his Honour ordered: "1. The applicant's application for declaratory and other orders, including interlocutory orders, be dismissed. 2. The applicant pay the respondents' costs of and incidental to the proceedings, including reserved costs, to be taxed if not agreed." 2 The relief claimed by the applicant by his application filed 6 October 1998 is based on his claim to an interest in the lands comprising Deliverance and Kerr Islands in the Arafura Sea. His claim concerning the land is said to be by succession traced to a Harald August Fritz (referred to as German Harry), who is said to be his great grand-uncle. 3 The first respondent, the Torres Strait Regional Authority, is a statutory corporation set up under s 142 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). Its function, as set out in ss 142A and 142B, is principally to act in the interests of Torres Strait Islanders living in the Torres Strait area and to formulate, develop and implement programs to advance Torres Strait Islander interests and to preserve their cultural material. The Authority also acts as adviser to the relevant Minister. 4 The second respondent, Mr Edward Dau of Boigu Island, is sued in a representative capacity on behalf of the Boigu Island People. He was apparently joined as a party because the Boigu Island Council will not acknowledge the validity of the applicant's claim. The Boigu Island People and the Boigu Island Council, so far as the material discloses, make no claim to the islands. 5 The third respondents, Mr Raymond Sagigi and others, are sued on behalf of the Badu Island People, who have made a claim under the Native Title Act 1993 (Cth) (the Native Title Act) in respect of the islands. 6 The fourth respondent is the Department of Natural Resources for the State of Queensland. 7 In his affidavit in support of his application for leave to appeal, Mr Fritz describes himself as "Dennis Melvin Fritz, (AKA Dan Taylor) disability pensioner of 381 Robinson Road Aspley, in the State of Queensland". Mr Fritz is not a descendant of an indigenous inhabitant in Australia prior to assertion of British sovereignty, so as to be capable of having native title. 8 Some of Mr Fritz's submissions to this Court assert that he has rights which derive from the habitation by his great grand-uncle of previously unoccupied islands. Indeed, his final submissions to this Court were that the two issues he would ask the Court to consider were: "…whether I stand as a person aggrieved pursuant to the Racial Discrimination Act Commonwealth 1985 or - and whether I stand as a person aggrieved pursuant to the Aboriginal and Torres Strait Islander Self- Management Act". 9 Mr Fritz's reliance on the Racial Discrimination Act 1985 (Cth), and his assertion that in some sense he has a "European native title", is based on a misunderstanding of the nature of native title and the Native Title Act. The observations of Deputy President Wootten referred to in Hollier v Registrar of NNTT (1998) 82 FCR 186 (Hollier) at 189 accurately summarise Mr Fritz's misconception: "Neither the common law nor the Native Title Act confers native title on any person; they simply recognise it where it exists. Native title is a form of title stemming from the rights enjoyed by the indigenous inhabitants of Australia prior to the assertion of British sovereignty. The indigenous inhabitants were the only persons who had such rights. The common law doctrine of native title and the Native Title Act 1993 simply recognise that historical fact and do not confer rights on persons by reason of race, or otherwise discriminate on the ground of race. Indeed, as was pointed out in Mabo No (2), it would have been discriminatory to refuse to recognise the property rights of indigenous people while protecting the property rights of other members of the community." 10 Mr Fritz in his application the subject of the primary judge's orders sought the following relief: "1. A Declaration that the effect of the annexation of August 1879 did not vest in the Crown in this matter, absolute ownership of, legal possession of and exclusive power to confer title to, all land on Deliverance and Kerr Islands. 2. A Declaration that the section 223 of the National Native Title Act 1993 and section 14(1) of the Torres Strait Island Land Act 1991 (Qld) operates discriminatory [sic] against the Applicant in this matter in that those said Acts are inconsistent with Sections 9, 10 & 11 of the Racial Discrimination Act (Comm) 1975 and Article 5(d) of the International Convention on the Elimination of All Forms of Racial Discrimination; whereby they restrict, exclude, prejudice the equal rights and interests of the Applicant because of his race and descent. 3. A Declaration that the Applicant has a common law right to enjoy the same kind of rights in relation to Deliverance and Kerr Islands and their surrounding waters, as those which the said Respondents enjoy. 4. And or in the alternative, an Order directing the first and second Respondents to comply with the provisions of the Racial Discrimination Act and to permit the Applicant unconditional access to Deliverance Island, to care for his coconut palms, to locate the remains of his ancestor and to subsequently re-bury his ancestor and conduct a traditional spirit releasing ceremony. 5. DAMAGES:- for $300.000 [sic] against the First and Second Respondent in respect of - (a) Loss of the Applicant's rights and interests to enjoy the same kind of rights in relation to Deliverance and Kerr Islands and their surrounding waters, as those which the said Respondents enjoy. (b) Loss of dignity by the said discrimination and humiliation and injury to the applicant's feelings. 6. Compensation to be paid to the Applicant by the Fourth Respondent in respect of:- (a) Negligence in failing to give adequate regard to the nature and extent of the benefit or detriment that the said negligence may effect the Applicant in both his personal and commercial capacity. 7. costs. 8. Any such other relief as the Honourable Court thinks just." 11 In addition he sought the following interlocutory relief:- "1. An interim order directing that the First Respondent accept service by way of A/R Registered Mail of all documents, and on behalf of the Second and Third Respondents. 2. An interim injunction that the Queensland Department of Natural Resources be restrained from making any decision either under the Torres Strait Islander Land Act 1991, nor any other Queensland Act as to the sale, lease, public auction or otherwise granting of freehold title to any person identifying themselves as Torres Strait Islanders or otherwise, or Island Community Council; concerning Deliverance and Kerr Islands until this matter is finalized by the Courts. 3. An interim injunction that the first to the fourth Respondents whether by himself, herself, itself or themselves or its, his, her or their servants, members or agents or any of them or otherwise be enjoined and restrained from hindering, preventing or attempting to hinder or prevent the Applicant from access to Deliverance and Kerr islands: (a) to care for his property, namely the coconut palms planted there by his ancestor, his ancestor's partner and himself (b) to locate the remains of his ancestor and exhume those remains (c) to subsequently re-bury his ancestor and conduct a traditional spirit releasing ceremony. 4. An interim injunction that the first to the fourth Respondents whether by himself, herself, itself or themselves or its, his, her or their servants, members or agents or any of them or otherwise be enjoined and restrained from interfering in any way with the grave-site and or including the remains of Mr Harald August Fritz, (commonly known as German Harry) buried on Deliverance Island. 5. An interim order, or in the alternative, an undertaking from the National Native Title Tribunal to restrain from any determination what so ever with respect to Native Title Claim lodged by the Third Respondents until this matter is resolved." 12 On 3 December 1998 the primary judge was concerned with the application for interlocutory relief by Mr Fritz, as well as notices of motion by the first and second respondents seeking that they be struck out as parties to the proceedings or that the proceedings be stayed against them, on the basis that they were not properly parties to the litigation and had no interest in the subject matter of the litigation. Alternatively, the first and second respondents sought orders for security for costs. The fourth respondent also sought to have the proceedings dismissed as disclosing no cause of action, or to be struck out as a party, it having no interest in the subject matter of the litigation, and also in the alternative seeking security for costs. The third respondent did not appear. 13 At the conclusion of the hearing of those matters, the primary judge said to Mr Fritz: "…the question is whether or not you want me not to give my decision in relation to the application of the Crown until such time as you have put in any material which you wish to put in because you say you're prejudiced." Mr Fritz replied: "I retract that, you can make a ruling on the lot. I will consider it. Yes, your Honour, as far as I'm concerned I'm prepared to let you consider and make a ruling on the whole lot right now." After consideration, the primary judge made the orders earlier referred to. 14 His Honour rejected the first contention by Mr Fritz that Deliverance and Kerr Islands were not annexed to Queensland in 1879. For reasons which his Honour set out, he concluded that the islands the subject of Mr Fritz's application became part of the Colony of Queensland as and from 1 August 1879 and that Mr Fritz's "claim to a declaration that the islands in question were not annexed in 1879 on the grounds he contends has no prospects of success at trial and will fail". 15 The primary judge also rejected Mr Fritz's contention that s 223 of the Native Title Act operated in a discriminatory way and was inconsistent with the Racial Discrimination Act 1975 (Cth), relying on the judgment of the Full Court of this Court (Black CJ, Ryan and Goldberg JJ) in Hollier, and the observations by the High Court in Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 483-484. His Honour also found that there was nothing in the material to indicate that any respondent had made a claim to the islands under the Torres Strait Islander Land Act 1991 (Qld), and there was no indication that the islands were claimable lands under s 15 of that Act. In these respects, the primary judge found that the questions sought to be agitated by Mr Fritz were hypothetical. His Honour concluded that Mr Fritz's claim to the second declaration sought had no prospect of success and would fail. 16 As to the claim for a declaration as against the respondents that he has a common law right to enjoy the same kind of rights to the islands and their surrounding waters as the respondents enjoy, the primary judge found that these claims were based on the same misconception as those in Hollier, as to the relationship between native title and common law. Further, insofar as orders were sought against the first and second respondents, his Honour noted that neither of them claimed for themselves any interest in possession of or right to control access to either of the islands. By Order in Council of 3 August 1978, made under the Land Act 1962 (Qld), it was ordered that the islands, together with other islands in the Torres Land Agents District, be reserved and set apart for departmental and official purposes and vested in and placed under the control of the Corporation of the Director of Aboriginal and Islander Advancement as trustee. His Honour said: "So far as the materials disclose, the land remains in trust under the control of the Corporation or its successor …It is the trustee whose title to the islands the applicant challenges and who has the right to grant or refuse permission to go on to the islands. If the claims give rise to any serious question to be tried, it would be the trustee who was the proper contradictor." 17 His Honour held that the claim for damages against the first and second respondents had no reasonable prospect of success and was embarrassing. Neither of those respondents, on the material before the primary judge, did anything which caused the applicant to lose any "rights or interests to enjoy Deliverance and Kerr Islands". Neither of them was in a position to grant, withhold, withdraw or extinguish any rights or interests of Mr Fritz in or to the islands. His Honour also found that there was no arguable case of negligence against the fourth respondent which entitled the applicant to compensation arising out of his seeking to obtain a lease over the islands to establish an aquaculture business. 18 Concerning Mr Fritz's claim that he has an interest in, or rights of enjoyment of, Kerr and Deliverance Islands which Harald August Fritz may have acquired, his Honour concluded that, even if it was arguable that Harald August Fritz had acquired an interest in or rights of enjoyment concerning the two islands, there was nothing to suggest that Mr Fritz was entitled to those interests or rights, or that they vested in him. His Honour found: "There is no basis to conclude that there is any likelihood that the applicant will ever establish an entitlement at law to the estate of Harald August Fritz or any part of it by succession or disposition inter vivos." 19 The learned primary judge carefully addressed each of the heads of claim on which relief was sought, and concluded that there was no arguable case that Mr Fritz was entitled to any of the relief claimed in the principal application. For that reason, his Honour concluded that interlocutory relief should be refused and that no question of security for costs thus remained. Each of the first, second and fourth respondents having sought orders dismissing the proceedings against them or seeking to be dismissed as a party, his Honour found that the proceedings should not be allowed to continue further, and should be dismissed as against all respondents. The primary judge's view was that: "…the applicant's claim, as formulated, is self-evidently without merit and will fail and it cannot be cured by amendment or by the addition of present title holder of the islands." 20 On the application for leave to appeal, Mr Fritz made extensive written submissions, and there was oral elaboration of some aspects of those submissions. He sought to adduce further evidence to this Court. Having regard to the opportunity to put further material before the Court which was extended to Mr Fritz by the primary judge (referred to in the exchange set out earlier in these reasons), we decline to have regard to that further material. There was no application by Mr Fritz before the primary judge to examine or cross-examine anybody. 21 Notwithstanding the nature of the application by Mr Fritz and the notices of motion before the primary judge, and the grounds of Mr Fritz's application for leave to appeal, Mr Fritz submitted that his "final argument" was: "…centred on whether the annexation of 1879 vested in the [crown] of absolute ownership of legal possession of an exclusive power to confer title to all their Deliverance and Kerr Islands, given the undisputed facts that the applicant's ancestor had settled and occupied the said island, before, during, and subsequent to the time in question. And whether the listing of the applicant's ancestors financial affairs into the Protector of Aboriginal's accounts prejudiced him and whether the applicant's ancestor, who maintained his Germanic traditions and cultures and religious beliefs retained the right to hand down his rights and interests in his property to his descendants who, in turn, also retained that right, and whether the principle of terra nullius applies to the areas of land in issue, and whether they are geographically in the Arafura Sea and not in the Torres Strait. If so, your Honours, I submit that accordingly the operation of any Torres Strait Act or Native Title Act in the area in question is invalid and without jurisdiction." 22 Concerning this central claim, the following exchange occurred: "MR FRITZ: … I'm asking you to look at this evidence to show that I have just as much - actually, that's all I'm saying. All this evidence I'm putting before this honourable Court which - this Court has the jurisdiction to look at to see if I have been discriminated against under certain Commonwealth Acts. That's all. Nothing else. I'm not asking this Court to rule on whether I own these islands. O'CONNOR J: But the basis of the discrimination, you argue, is based upon a property right to islands, or to some right that you say - - - MR FRITZ: An interest. O'CONNOR J: - - - you inherited from your great grand-uncle. MR FRITZ: Yes, your Honour." 23 This central claim of Mr Fritz suffers from the fundamental and fatal deficiency identified by the primary judge: even if the deceased great grand-uncle, Harald August Fritz, had acquired an interest in the islands, Mr Fritz has disclosed no basis in law to show that he is entitled to those interests or rights, or that they vested in him by succession or disposition inter vivos. It cannot seriously be doubted that the islands in question were annexed to Queensland in 1879; the islands are part of Queensland and subject to the laws of Queensland, and Mr Fritz has no claim under either the Native Title Actor the Torres Strait Islander Land Act 1991 (Qld). The islands are reserved and set apart for departmental and official purposes, being vested in and placed under the control of the Corporation of the Director of Aboriginal and Islander Advancement as trustee, and remaining under the local government control of the Boigu Island Council: Land Act 1962 (Qld); Order in Council of 3 August 1978; Community Services (Torres Strait) Act 1984 (Qld), s 51. 24 On the whole of the material there is nothing to suggest any error in the conclusion of the primary judge that the appellant's claim was without merit and would fail, and that it could not be cured by amendment or by the joinder of the present title holder of the islands. 25 It follows that the application for leave to appeal from the orders made by the primary judge on 5 March 1999 should be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Ryan and O'Connor JJ.