Kemp v Registrar, Native Title Tribunal

REASONS FOR JUDGMENT 1 I have before me a notice of motion brought in a proceeding which is presently in the docket of another judge. The motion seeks an order prohibiting building or other works in an area in northern New South Wales. The area is in the jurisdiction of the Greater Taree City Council and is on a headland in the South Pacific Ocean bordered by Khappinghat Creek. The area, as I understand it, is known as Khappinghat Nature Reserve and Saltwater National Park. 2 On 12 December 2005, the National Native Title Tribunal ('the Tribunal') decided that an indigenous land use agreement should be registered in respect of the Saltwater National Park under s 24CL of the Native Title Act 1993 (Cth) ('the Act'). An indigenous land use agreement is an agreement meeting the requirements of ss 24CB to 24CE of the Act. In this proceeding, the applicant, Mr Keith Kemp, seeks an order setting aside the decision of the Tribunal to register the agreement. 3 The agreement recites that Ms Patricia Davis Hurst, the fifth respondent, acting on behalf of the Saltwater people, lodged Applications for Determination of Native Title under the Act. By those applications Ms Hurst claimed, on her own behalf and on behalf of the Saltwater people, to hold native title in the land and waters comprising Saltwater National Park and part of the Khappinghat Nature Reserve. 4 The sixth respondent, the Saltwater Tribal Council, an Aboriginal Corporation, was incorporated by the Aboriginal Councils and Associations Act 1976 (Cth) for the purpose of holding native title in trust for the Saltwater People. The State of New South Wales is prepared to recognise that the Saltwater People hold native title rights and interests in the Saltwater National Park and part of the Khappinghat Nature Reserve. 5 The agreement recites that various Ministers of the Crown in right of New South Wales, Ms Hurst, Saltwater Tribal Council and Greater Taree City Council entered into the agreement for the purpose of: (a) recognising that the Saltwater People hold native title in the land and waters concerned; (b) regulating exercise by the Saltwater People and the Saltwater Tribal Council of the native title rights and interests in the Agreement Area, as defined; (c) providing for a role for the Saltwater Tribal Council in the future management of the Saltwater National Park and part of the Khappinghat Nature Reserve; (d) providing for the withdrawal of the native title determination applications made by Ms Hurst; (e) settling other matters between the Parties. 6 By clause 3 of the agreement, the parties agree that the relevant State Minister and Ms Hurst and the Saltwater People will jointly apply in writing to the Native Title Registrar for the agreement to be registered as an indigenous land use agreement. By clause 9.1 of the agreement, the parties agree and acknowledge that certain acts set out in Schedule 12 of the agreement are valid and are taken always to have been valid. Schedule 12 refers to a number of validated acts, namely: '(a) reservation of Saltwater National Park under… the [National Parks and Wildlife] Act; (b) amenities block; (c) viewing platform; (d) steps to beach on northern side of headland; (e) fencing; (f) signage; (g) parking; (h) water mains.' 7 By clause 8, the parties consent to the doing of future acts as set out in Schedule 8 in relation to the Saltwater National Park in accordance with that schedule. Schedule 8 specifies the following acts: '(a) The amendment, repeal or the re-making of the [National Parks and Wildlife] Act; (b) The making of a Plan of Management and any subsequent amendments; (c) Construction of a Camping Ground Area in accordance with the Plan of Management [as defined in the agreement]; (d) Construction of a toilet/shower facility in accordance with the provisions of Schedule 11; (e) Construction of vehicle access and parking for the Camping Ground Area [as defined]; (f) Construction of picnic tables and barbecue facilities for the Camping Ground Area (g) Construction of signage for the Camping Ground Area; (h) Erection of a plaque recording the use of the land by the Indigenous People of the Manning River Valley.' 8 Mr Kemp claims that the decision of the Tribunal to register the agreement should be set aside because the decision involved an error of law and because of a breach of the rules of natural justice in connection with the making of the decision. As I understand it, Mr Kemp claims to have a native title interest in the Saltwater National Park and claims that the Saltwater People were not authorised to enter into the arrangements represented by the agreement. 9 The application before me was filed on 27 April 2006, and contains only the following prayer: 'An order (or declaration) that all building or other works stop in the application area immediately.' 10 Mr Kemp had also filed a notice of motion at the same time as he filed his substantive application on 3 January 2006. By that notice of motion, Mr Kemp claimed an order 'suspending the implementation of the indigenous land use agreement and any of its capital works until a review of and determination upon the decision to register the agreement is completed by the Federal Court'. 11 While that notice of motion was nominally returnable at 2 pm on 3 January 2006, it does not appear to have been given a hearing date until 2 March 2006, the return date of the original application which, curiously, has the date 9 January 2006 stamped on it, although it also has a note indicating that it was filed on 3 January 2006. When the matter came before the docket judge on 2 March 2006, directions were given for the preparation of the proceeding for final hearing and 19 May 2006 was fixed as the date for hearing. Mr Kemp's motion was also fixed for hearing on the same date. 12 It is not entirely clear why Mr Kemp did not seek to agitate his motion of 3 January 2006 at the directions hearing on 2 March 2006. It may be, since he appears in person without any legal assistance, that he was unaware of the need to raise the question of interlocutory relief at an early stage. Whatever the reason, it appears that he made no application for interlocutory relief at that time and it was only by the second motion now before me, that he claimed interlocutory relief. 13 In the interim, certain of the respondents filed a motion seeking summary dismissal of the proceeding on the ground that it was incompetent. The docket judge also fixed that motion for hearing on 19 May 2006. 14 The evidence in support of the motion of 27 April 2006 is an affidavit sworn on that date by Mr Kemp in which he explains that the order sought on the motion was intended to be sought on 2 March 2006 to stop works and building on an Aboriginal sacred site. The works in question, which are described by Mr Kemp as 'capital works' and which are the works referred to in Schedule 8 of the agreement, have been substantially completed. The works include a camping ground, toilet block, beach showers, vehicle access and parking, picnic tables and associated signage. 15 The works that have been completed include signage as follows: (a) Campervan information; (b) 'No Camping' folding sign; (c) Signage for toilet; (d) Signage for vehicle access; (e) Regulatory and general signs; (f) Sign regarding gazetted Aboriginal place under the National Parks and Wildlife Act.