THE APPEAL
30 It may be inferred that the concern expressed by his Honour was that the case sought to be agitated by the appellant involved a political question, one not appropriate for a Court to determine. The appellant clearly sought the recognition of his group, by the executive governments of Australia and PNG for Treaty purposes and that recognition had been denied them.
31 Issues arising out of international relations have generally been regarded as non-justiciable: Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 at 307, referring to Buttes Gas & Oil Co v Hammer (No 3) [1982] AC 888; Gerhardy v Brown (1985) 159 CLR 70. In Buttes Gas & Oil [1982] AC 888Lord Wilberforce said that English courts may not examine 'the validity, under international law, of an act or acts operating in the area of transactions between states' (at 931). A number of reasons have been advanced to explain the requirement, referred to by Lord Wilberforce, for judicial restraint. Lord Wilberforce spoke of there being no judicial standard for the determination of such questions and, more relevant to this case, the potential for embarrassment to foreign relations. Other cases, such as Gerhardy v Brown 159 CLR 70, have referred to the Court assuming a function which is committed to another branch of government.
32 In Buttes Gas & Oil [1982] ACat 933Lord Wilberforce referred to Oetjen v Central Leather Co (1918) 246 US 297 at 304, where Fuller CJ spoke of the 'amicable relations between governments being imperilled' if the Court of one country re-examined or condemned the acts of another country. In Petrotimor Companhia de Petroleos Sarl v Commonwealth of Australia (2003) 126 FCR 354 at 370, Black CJ and Hill J considered that the principle stated in Buttes Gas & Oil [1982] AC 888, that courts should not adjudicate upon transactions of foreign sovereign States, was not surprising, given that international relations can be controversial and the outcome of a Court adjudication may well create embarrassment for the government. At issue in that case was the grant of a concession by Portugal and questions as to the meaning of an international treaty were raised. The Court's involvement was regarded as raising the possibility of considerable embarrassment to the government of Australia (at 369, at [48]). Submissions, that Buttes Gas & Oil [1982] AC 888 had no application in the Australia constitutional framework and that the only issue was whether there was a 'matter' capable of being resolved by the exercise of judicial power, were rejected. The Full Court held that Buttes Gas & Oil [1982] AC 888 was not to be read down, as later English cases had suggested. The Court observed that the High Court in Her Majesty's Attorney-General in and for the United Kingdom v Heinemann Publishers Australia Proprietary Limited (1988) 165 CLR 30 (the 'Spycatcher' case) had held that the principle in Buttes Gas & Oil [1982] AC 888 rested partly on international comity (at 370, at [50]).
33 The 'political question' doctrine has attracted considerable criticism, Gummow J observed in Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 83 ALR 265 at 287, but it had been unnecessary to finally decide whether it exists in Australia (at 288). It was erroneous to suppose that every case which touches upon foreign relations lies beyond judicial cognisance, his Honour said (at 284). There might be questions for the courts concerning the power to conduct relations. His Honour did not however doubt that the propriety of dealings of governments was not a matter for the courts (at 285-286). His Honour suggested that an alternative method of dealing with such a case may be to emphasise the discretionary nature of equitable relief, such as declarations (at 287).
34 Opinions may differ as to the breadth of the principle as stated in Buttes Gas & Oil [1982] AC 888. Nevertheless, it has been approved in the Spycatcher 165 CLR 30 case and applied without limitation by two Full Courts of this Court: in Petrotimor 126 FCR 354and in Peko-Wallsend Ltd 15 FCR 274. It follows that negotiations and agreements between Australia and another country are not to be the subject of judicial determination for the reason that they might cause embarrassment and affect relations between the countries. Questions raised concerning those subjects are non-justiciable: Buttes Gas & Oil [1982] AC at 933; Petrotimor 126 FCR at 374, at [68].
35 This is an appeal from the exercise of a judicial discretion and is governed by well-settled principles. They were restated in The Queen v Carroll [2002] HCA 55 at [73]. They require error to be shown. It was not suggested that his Honour was wrong to have held that a determination as to Treaty recognition was a matter for the executive governments of PNG and Australia, not the Court. Nor was it submitted that s 84(5) left no discretion for the Court to exercise, where an applicant for joinder had shown that they had an interest which may be affected by a determination of native title with respect to land or sea. Rather, it was submitted that his Honour focussed upon the difficulties raised by the appellant's claim to recognition and not upon the affect upon his group's traditional rights, the question raised by s 84(5) and one which his Honour had answered in the appellant's favour. His Honour had failed to understand that the case the appellant sought to advance had regard to the latter, it was submitted. As a result his Honour did not consider the alternative course, to outright refusal of joinder, one which would permit the appellant to participate in the proceedings, so long as questions relating to the Treaty were not raised by him.
36 The contention that his Honour failed to apprehend the nature of the case sought to be advanced by the appellant is clearly incorrect. His Honour considered the appellant's material, in relation to the interest asserted by the appellant, and understood that it was said that that they thought that they may be affected by a determination of native title rights and interests in the proceedings. His Honour made findings as to the potential for affectation, upon an assumption that the interests asserted by the appellant might be recognised and therefore capable of being affected. The appellant clearly also sought to obtain something approaching recognition by the Court of his group's traditional and customary rights, interests, which had not been forthcoming from the governments of PNG and Australia. His Honour was not in error as to his understanding of what the appellant sought. The appellant now seeks to resile from that stance, because of the problem identified by his Honour.
37 The proposal by the appellant, to limit his case and not seek a determination akin to recognition, may overcome one of his Honour's expressed concerns. His Honour was clearly concerned that the conduct of the case then proposed by the appellant would be an abuse of the Court's processes because it involved a purpose other than that to protect the appellant's group's rights. It would not appear to overcome the substantial problem identified by his Honour, as to the Court's involvement in a political question.
38 The appellant's argument on the appeal proceeds upon an assumption that if the position of the appellant and his group under the Treaty is not directly raised, and the Court is not asked to make orders as to the position of the appellant and his group under the Treaty, then the appellant's case is justiciable. No question capable of creating embarrassment for the Australian government would arise. The contention supposes that embarrassment is avoided by no order, in the nature of relief, being made in terms of the Treaty. In the way it was put, the appellant would assert a purely defensive case, in the way referred to in Kokotha 143 FCR 544. He would simply put forward evidence to better inform the Court as to the true extent of the Claim Group's customary and traditional rights and the extent to which they have been subject to the exercise of his group's rights.
39 The latter contention suggests that the appellant's role is as a witness, rather than a party. It overlooks the outcome which the appellant would no doubt continue to seek, namely the limitation of a determination in favour of the Claim Group, by reference to his group's rights and interests. Any determination made by the Court, in the event that the appellant establishes the traditional rights and interests of his group, would necessarily refer to those interests and be couched in such a way as to protect them. In that process the Court would need to make findings as to the location of the appellant's group, their history and the rights which they have traditionally and customarily exercised in the Claim Area. The findings would involve the matters which would characterise the appellant and his group as traditional inhabitants under the Treaty, even if a conclusion was not expressed in those terms. On the other hand the question determined by PNG and Australia may have regard to wider questions, including competition between villages for recognition, a matter to which his Honour referred. The Court's findings would then stand in stark contrast to the refusal of the PNG and Australian governments to accept the appellant's group. They might suggest that the further consideration, which the Exchange of Letters leaves open, should be given and what that conclusion should be. The prospect for embarrassment in international relations is real. It is not overcome by an omission of specific reference to the Treaty.
40 There is however one anomaly in this matter, if the refusal of joinder is upheld on the basis of there being a political question inherent in the appellant's case which renders it non-justiciable. The Commonwealth now supports the appellant in his application for joinder, to an extent. This implies that it may not be considered that a determination will have an adverse effect upon foreign relations. The matter has not been directly addressed. Lord Wilberforce in Buttes Gas & Oil [1982] AC 888 did not consider that the reality of embarrassment determined whether a case was justiciable. The answer to the question depended in each case upon an appreciation of the nature and limits of the judicial function (at 436). In Petrotimor 126 FCR 354, evidence was tendered on the issue as to whether embarrassment was likely. It was considered unnecessary to refer to it as the question raised was capable of answer by reference to the contents of the Exchange of Notes (at 370, at [52]). Consequently the Court did not deal with the question. There seems no reason to doubt that this aspect of Buttes Gas & Oil [1982] AC 888 would not be applied. It holds that it is the nature of the question for the Court which renders it non-justiciable.
41 It follows that no error has been shown on his Honour's part in refusing joinder and the appeal should be dismissed for that reason. However, for the reasons which follow, it seems to me to be necessary to say something about the basis upon which the appeal was conducted which has informed the reasoning to that conclusion.
42 The rights which the appellant asserted have been treated as of a similar nature to native title rights and such that the common law might recognise them. Questions as to the appellant's interests, although adverted to by the Claim Group, do not appear to have been subject to detailed submissions before his Honour, the focus being upon the Treaty. In that regard the Commonwealth had initially expressed concerns about the appellant raising his claims in the proceedings. What appears to have been a preliminary view expressed by his Honour, with respect to the appellant's interests and the potential for a native title determination to affect them, was accepted by the Commonwealth on the appeal. The Claim Group filed a Notice of Contention, which put in issue whether the interests of the appellant were such as to be recognisable by an Australian court. It resiled from that position on the appeal, preferring to focus upon its argument that there had been no error in the exercise of his Honour's discretion. The appeal has therefore been argued, effectively, upon a concession that the appellant holds the requisite interests and that a determination of native title may affect them.
43 A Full Court in Byron Environment Centre Inc 78 FCR 1 held that the nature of the right or interest which may be affected by a native title determination, and therefore qualify for joinder, is very wide and is not required to be one which the Court may itself enforce. Even so, it held that the right or interest must be of such a character that it may be affected in a demonstrable way (at 7-8, 19, 37 and 42). In this case the appellant's interests are not clearly identified nor is it explained how any such interests would be affected. Apart from those interests asserted by the appellant which are spiritual in nature, the appellant refers to customary rights of passage for the purpose of feast celebrations and for barter in the Torres Strait area, but his evidence suggest they ceased some time ago. That leaves the appellant's marine interests, but even they may be inferred to have ceased, although it is not clear when and why that occurred. The Commonwealth refers to the appellant's interests as largely 'historical'. It is not said whether they are likely to be recommenced in the future.
44 If the appellant's remaining interests are in traditional fishing, and they continue, it is not clear why they have not been associated with the Torres Strait Fisheries Act 1984 (Cth) ('Torres Strait Act'), which was mentioned only in passing in written submissions. The Act provides for the regulation of fishing in an 'area of Australian jurisdiction', which is defined by s 3(1) in such a way as to include any area of water south of the fisheries jurisdiction line in the Treaty. Section 8 of that Act provides:
'In the administration of this Act, regard shall be had to the rights and obligations conferred on Australia by the Torres Strait Treaty and in particular to the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing.'
45 The 'Torres Strait Treaty' is identified in s 3 as the Treaty in question. The text of the Treaty and its Annexures, but not the maps, are scheduled to the Torres Strait Act. The term 'traditional inhabitants' is given the same meaning as in the Treaty, subject to s 3(3)(b). This provision permits the identification of an 'adjacent coastal area of PNG', where traditional inhabitants reside, by declaration of the Minister and publication in the Gazette. The Protected Zone is defined to mean that area identified in the Treaty and includes an area north of the seabed jurisdiction line which is the subject of declaration by PNG. No further identification of a 'traditional inhabitant' is provided by the Torres Strait Act. No declarations in that regard have apparently been made. No principle of statutory construction would however suggest that those administering the Act are to determine who is a 'traditional inhabitant' by reference to the Exchange of Letters.
46 If the appellant does qualify as a traditional inhabitant under the Torres StraitAct, his interest might be capable of determination by the Court without undertaking a political function. Any determination with respect to Part B of the Claim Area may not affect an interest under the Act, for the reason that the claim is expressed in such a way as to be subject to it. Regrettably the same recognition with respect to Part A was withdrawn. Had the initial, non-exclusive, claim for that area been maintained by reference to the Treaty, or more correctly Torres StraitAct interests, it may not have been necessary for persons in the appellant's position to be joined to the proceedings.
47 If the appellant's joinder were to be permitted, on terms, account may need to be taken in the management of the proceedings, to these unresolved issues.