Kanak v Minister for Land & Water Conservation

REASONS FOR JUDGMENT HIS HONOUR: 1 The principal proceedings in this matter concern a non-claimant application, brought by Mr Dominic Wy Kanak purportedly pursuant to s 61(1) of the Native Title Act 1993 (Cth) ("the Act"), for a determination as to whether native title exists on Crown land and water at Bondi Beach and Bondi Park ("the claim area" or "Bondi"). It is unnecessary, for present purposes, to define the claim area any more precisely than this. The applicant has been principally concerned to prevent the environmental intrusion involved in the staging of the forthcoming Olympic volleyball events on the claim area. The applicant does not claim to hold any rights or interests, according to traditional Aboriginal law and custom, over the claim area, nor is his application authorised by any persons who do claim to hold such rights over areas of land that include the claim area. It may be noted that, in separate proceedings before this Court (Darug Tribal Aboriginal Corporation, NG 6061 of 1998, and Eora People, NG 6099 of 1998), there may be persons who so claim (for various reasons, that is not entirely clear). 2 The respondent Minister seeks orders by notice of motion that the application be struck out, pursuant to s 84C of the Act, on the grounds that the applicant does not hold an interest in the land for the purpose of lodging an application under s 61(1) of the Act. It is also submitted by the respondent that a non-claimant application may not be made for a determination that native title does exist. Further, the respondent seeks to dismiss the proceedings, pursuant to Order 20 rule 2 of the Federal Court Rules, on the grounds that, being devoid of any prospect of success, they may be said to constitute an abuse of process. Relevant legislative provisions 3 Section 84C(1) of the Act provides that: "If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications) … a party to the proceedings may at any time apply to the Federal Court to strike out the application." 4 Section 61(1) provides that "native title determinations" may be made by the following persons: "(1) A person or persons authorised by the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or (2) A person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought; or (3) The Commonwealth Minister; or (4) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned." 5 Section 61(4) provides that: "A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must: (a) name the persons; or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons." 6 Section 62 provides that: "(1) A claimant application (see section 253): (a) must be accompanied by an affidavit sworn by the applicant: (i) that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and (ii) that the applicant believes that none of the area covered by the application is also covered by an entry in the National Native Title Register; and (iii) that the applicant believes that all of the statements made in the application are true; and (iv) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and (v) stating the basis on which the applicant is authorised as mentioned in subparagraph (iv); and (b) must contain details specified in subsection (2); and … (2) For the purposes of paragraph (1)(b), the details required are as follows: (a) information, whether by physical description or otherwise, that enables the boundaries of: (i) the area covered by the application; and (ii) any areas within those boundaries that are not covered by the application; to be identified; (b) a map showing the boundaries of the area mentioned in subparagraph (a)(i); (c) details and results of all searches carried out to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application; (d) a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law; (e) a general description of the factual basis on which it is asserted that native title rights and interests claimed exist and in particular that: (i) the native title claim group have, and the predecessors of those persons had, an association with the area; and (ii) there exist traditional laws and customs that give rise to the claimed native title; and (iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs; (f) if the native title claim group currently carry on any activities in relation to the land or waters - details of those activities; (g) details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title; (h) details of any notices under section 29 found in Division 3 of the Act which deals with future acts (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area." 7 Section 253 contains the following relevant definitions: "Unless the contrary intention appears: … claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended. … interest, in relation to land or waters, means: (a) a legal or equitable estate or interest in the land or waters; or (b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with: (i) the land or waters; or (ii) an estate or interest in the land or waters; or (c) a restriction on the use of the land or waters, whether or not annexed to other land or waters." Whether a non-claimant may apply for a determination that native title exists 8 The respondent submitted that, on its proper interpretation, the Act does not countenance an application for a positive determination that native title exists other than where the applicant is a person authorised to make the application by the native title claim group. Section 61(1), it was said, should be read in context so as to allow only non-claimant applications which seek to deny the existence of native title. A legislative intention to read the Act in this way was said to be apparent from the operation of various of the Act's provisions. 9 It was submitted by the respondent that the legislative restrictions and requirements on the content of claimant applications contained in ss 61, 61A and 62, which apply only to "claimant applications", would be rendered practically ineffective were applications seeking to assert the existence of native title equally viable when styled as non-claimant applications. Section 61A requires claimant applications, inter alia, not to cover previous exclusive possession act areas, pursuant to subs (2), and not to claim certain rights and interests in previous non-exclusive possession act areas, pursuant to subs (3). Section 62 contains extensive and onerous prerequisites to the making of a "claimant application" (see para 6 above). 10 In general, statutory provisions potentially diminishing the jurisdiction of a court are construed minimally: see Pearce & Geddes Statutory Interpretation in Australia 4th ed 1996 at p 146. Likewise, a statute permitting persons or classes of persons to approach a court should not be narrowly construed, nor should implications restrictive of the rights of such persons be made except in cases of necessity: see, for example, Phelps v Western Mining (1978) 20 ALR 183. 11 However, I agree with the respondents' submission that this is a case where a restrictive implication is necessary. It would be unacceptably anomalous if an application brought by a non-claimant, that sought to assert positively the existence of native title, were not subject to the various provisions that govern claimant applications. The Act is structured so that any positive assertion that native title exists will need to comply with the onerous requirements of ss 61, 61A and 62. It was evidently assumed by the drafters of the Act that it is only claimant groups who would be making such assertions. That is because native title is intrinsically possessed by a group on a communal basis. While it is not necessary (and would often be impossible) for a non-claimant application seeking to deny the existence of native title to fulfil the requirements of ss 61A and 62, there is no apparent policy reason why the information required of a claimant group should not also be required of a non-claimant application if such a vehicle might be used to seek to establish the existence of native title. However, no such requirement has been expressly provided for. To allow the making of non-claimant applications which seek to establish the existence of native title, without the accompanying information required by ss 61A and 62, would clearly enough tend to compromise the claimant application process envisaged by the Act. Further, it would leave other potential parties and the Court with little of the information necessary to consider the justification for making any positive determination that some group or person holds native title or otherwise to make the necessary determination under s 225. 12 Second, it was submitted by the respondent that to interpret the Act so as to allow non-claimants to make applications seeking to assert the existence of native title would impose oppressive requirements upon prospective claimant groups seeking determinations over the same land. Such requirements were said to arise primarily by virtue of the operation of ss 24FA, 24FC, 24FE, 66(3) and 66(10) of the Act. Section 24FC subjects an area to protection, under s 24FA, against future acts when there is a relevant native title claim, according to s 24FE, entered upon the Register of Native Title Claims, within the period specified in the notice given under s 66. The cumulative effect of these provisions is to deny compensation for a claimant group for any "future act" that may be performed over the claim area, unless a claimant application has passed the registration test before the National Native Title Tribunal ("the Tribunal") within three months of the date of notification of a non-claimant application. The practical effect of the making of a non-claimant application is therefore to require a prospective claimant group, which does not wish such future acts to be validated, to have its application registered by the Tribunal within three months of notification of the non-claimant application. It was argued by the respondent that the difficulties encountered by many prospective claimant groups in identifying the membership of the claim group and the boundaries of the claim area, together with inevitable administrative delays involved before the Tribunal, would make the registration of a claim within three months impossible, as a practical matter, in many cases. It was also said that such an interpretation would promote litigation even where potential claimants were not inclined to seek a judicial determination of their rights. This result was said to be contrary to the objects of the Act contained in s 3(a): "to provide for the recognition and protection of native title." It is also arguably contrary to the statement in the preamble to the Act that: "A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character." 13 In general, I agree with this submission. While there are possible policy justifications for permitting a non-claimant application which denies the existence of native title or which seeks to be protected against the possible reach of native title to have this precipitous effect, there is no such justification for a non-claimant application which merely asserts the existence of native title in other persons' hands. 14 Third, it was submitted by the respondent that to allow non-claimants to make applications for determinations that native title exists would deny claimant groups benefits afforded by the Act. In particular it was noted that ss 47A and 47B, which provide that prior extinguishment of native title over land (either subject to a trust held "for the benefit of Aboriginal peoples or Torres Strait Islanders" or which is vacant Crown land) is to be disregarded for any purposes under the Act, do not apply to non-claimant applications. Thus the making of a non-claimant application could have the effect of denying this benefit to prospective claimant groups: a strange result if a non-claimant application could assert the existence of native title in a group excluding the applicant. 15 Fourth, the respondent noted that, pursuant to s 84(2), an applicant, whether a claimant or non-claimant, is a party to proceedings as of right, whereas other persons, pursuant to s 84(5A) may, at the discretion of the Court, be denied such status or, pursuant to s 84(8), be stripped of such status. Section 84(5A) provides that: "If: (a) a person wants to become a party to the proceedings; and (b) the Federal Court is satisfied that the person's interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; the Court: (c) may make appropriate orders to ensure that the persons interests are properly represented in the proceedings; but (d) need not allow more than one such person to become a party to the proceedings in relation to each area covered by such a public right of access or use." Section 84(8) provides that: "The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings." It was said to be incongruous that the applicant might be able to secure his right to be a party to proceedings by making a non-claimant application when that right might be denied to, or removed from, him were he to seek to become a non-applicant party, particularly given that parties have a virtual right of veto in relation to negotiated outcomes: see Byron Environment Centre v Arakwal People (1997) 78 FCR 1 at 49. 16 The last two submissions outlined above highlight difficulties presented by the making of non-claimant applications under the Act. It is true that some of these difficulties present themselves whether a non-claimant applicant seeks a determination that native title exists or not. Thus, if considered alone, they might not decisively support the interpretation sought by the respondent. However, when taken together with the extensive requirements in s 61A and 62 involved as to the lodging of claimant applications, the difficulties referred to support the notion of an implied limitation upon the making of non-claimant applications under s 61(1), as contended by the respondent. 17 Further, the considerations noted above at least create an ambiguity as to the correct interpretation of s 61(1), and it would therefore be appropriate, pursuant to s 15AB(2)(e) of the Acts Interpretation Act 1901 (Cth), to refer to the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth), as urged by the respondent. At para 25.15 the Memorandum states: "Who can make an application claiming that native title exists? This kind of application can be made by one or more members of a native title claim group authorised to do so by that group... An application for a determination of native title that involves a claim for native title cannot be made unless it is made with the authority of the claim group." (Emphasis added). This passage provides strong support for the respondent's contention. However it is true that, at para 25.17 the Memorandum also states: "Who else can apply for a determination of native title? A person who does not claim to hold native title may also apply for a native title determination, for example to establish that there is no native title in a particular area… A person who holds a non-native title interest (for example, a mining lease or a licence) in an area may make this type of application in relation to an area covered by the non-native title interest" (Emphasis added)." The words "for example" appear to leave open the possibility that the Act contemplates a non-claimant making an application for a determination that native title does exist. However, given that these words follow so closely the words extracted above from para 25.15, they are better explained by recognising that a non-claimant application may seek to establish either that native title does not exist at all over a particular area, or that any native title rights that may exist do not infringe the interests of the claimant.