34 The defendant is Aboriginal and is the Chairperson of the Wadi Wadi Coomaditchie Aboriginal Corporation. He stated his belief that he is an Aboriginal Elder and a descendant of his great-great-grandfather, Mickey Johnson, referred to as "King Mick", and his great-great-grandmother, Rosie Russell, referred to as "Queen Rose". The defendant believes that he has responsibilities to the Aboriginal community generally and to the non-Aboriginal community members to "keep our culture alive".
35 When the defendant was a young boy his mother pointed out to him areas including those now under development on the plaintiff's land. His mother informed him that the site was "very important" for "women's business and men's business". His mother also informed him that it was a very important place for Aboriginal culture. It was said to be a place where stones were broken down and made sharp to cut meat and clean fish and abalone. He was also informed that Aborigines used to eat there and cut grass to make baskets and little net bags. The defendant said that he knew in his heart that it is a very sacred place for Aboriginal people.
36 Mr Oshlack submitted that the Court must be careful not to consider this matter as a Native Title claim and seemed to submit that the reference to the term "Aboriginal Traditional Owner" in the caveat was relevant to the terms of s 85A of the NPW Act and also to an argument that he put in respect of s 33D of the 1967 Act. The nature of the plaintiff's title in the subject properties was described by the High Court in Fejo and Anor v Northern Territory of Australia and Anor (1998) 195 CLR 96 at 126:
An estate in fee simple is "for almost all practical purposes, the equivalent of full ownership of the land" and confers "the lawful right to exercise over, upon and in respect to, the land, every act of ownership which can enter into the imagination". It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title.
37 The caveat claims that the defendant's estate or interest in the land has been conferred on him by virtue of the statutes listed in Schedule 1 of the caveat under the heading "Nature of instrument". The alleged "facts" stated in the caveat by virtue of which the defendant claims this interest in the land are: (1) as owner of the relics on or below the surface of the land by reason of his status as a Traditional Aboriginal Owner and (2) as a person having an equitable interest in the Aboriginal objects wholly or in co-existence with the Crown. There is also reliance upon the "fact" that the defendant has brought proceedings in the Land and Environment Court to protect "Aboriginal Objects from destruction".
38 One of the statutes referred to in the caveat is the Real Property Act 1900 (NSW). Although there is no mention of the section upon which reliance is placed there is a reference to the case, "Williams vs Andersen". It became apparent during submissions that the intention was to refer to Wilson v Anderson (2002) 190 ALR 313. There was no reference to that decision during submissions and from the way Mr Oshlack argued the defendant's case, he specifically eschewed any suggestion that this was a case relevant to the Native Title Act 1993 (Cth) or the Native Title (New South Wales) Act 1994 (NSW). Wilson v Anderson involved a claim in respect of a perpetual lease under the Western Lands Act 1901 (NSW) in which the High Court decided that the grant of the lease extinguished any Native Title in relation to the land.
39 The defendant also relied upon ss 9 and 10 of the Racial Discrimination Act 1975 (Cth). No specific argument was addressed on these sections in respect of the defendant's alleged caveatable interest in the land. However it is noted that since the proclamation of that Act, native title rights are accorded the same protection by the law as other rights in relation to land.
40 The final statute relied upon in the caveat is the NPW Act in respect of which the defendant specified in the caveat that he was relying upon s. 87(a) of that Act to claim an equitable interest in the land. There is no s. 87(a) of that Act, however from the submissions put by Mr Oshlack, reliance was placed upon s 85A(1)(a) which refers to the Director-General's discretion to "return" relics to an Aboriginal owner. No other parts of the section were relied upon by the defendant.
41 The plaintiff claims that the relics are the property of the Crown by reason of s 33D of the 1967 Act. The plaintiff submitted that immediately before the commencement of that Act the relics were not the property of the Crown and were not in the possession of any person. In those circumstances the relics are deemed to be and always to have been the property of the Crown.
42 It was submitted that objects buried in the soil were at common law the property of the owner of the land. In Elwes v Briggs Gas Company (1886) 33 Ch D 562 Chitty J held, at 568, that a very ancient boat excavated from the earth on the plaintiff's property, that was subject to a lease, belonged to the plaintiff at the time of granting the lease. His Honour decided that it was immaterial whether the boat was to be regarded as a mineral, part of the soil or a chattel.
43 In what was referred to by Meagher JA in the Foreword as their "masterpiece of legal analysis", An Essay on Possession in the Common Law, (reprinted by Law Press in 1990), Sir Frederick Pollock and Robert Samuel Wright, wrote at page 41:
The possession of land carries with it, in general, by our law, possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor is not aware of the thing's existence.
44 In Ranger v Giffin (1968) 87 WN (Pt 1) (NSW) 531 McClemens J, at 539, referred to this statement from Pollock & Wright and to the fact that it had received approval in a number of cases.
45 In Waverley Borough Council v Fletcher (1995) QB 334 a brooch found by a member of the public using a metal detector on the Council's freehold land was held to be the property of the Council as it had a superior right to the brooch (at 349). Auld L.J., with whom Sir Thomas Bingham M.R. and Ward L.J. agreed, referred to the authorities in which reference had been made to the "ratio in Elwes case" and the "general principle enunciated by Chitty J, that lawful possession of land includes possession of everything in the land, naturally there or otherwise" (at 346-347). His Lordship reviewed the authorities and, at 346, restated two main principles established by those authorities with particular reference to "objects found on or in the land" as follows:
(1) Where an article is found in or attached to the land, as between the owner or lawful possessor of the land and the finder of the article, the owner or lawful possessor of the land has the better title. (2) Where a article is found unattached on land, as between the two, the owner or lawful possessor of the land has a better title only if he exercised such manifest control over the land as to indicate an intention to control the land and anything that might be found on it.
46 In Flack v Chairperson, National Crime Authority & Anor (1997) 150 ALR 153 in which the applicant sought the return of money seized under warrant from premises of which she was the sole tenant, Hill J said at 160:
It would, no doubt, be self evident that if a chattel became affixed to the realty, the ownership of the chattel (and possession of it) would follow the ownership (and possession) of the realty. So much was decided in Elwes v Brigg Gas Co (1886) 33 Ch D 562. … Chitty J held not only that the boat had become a fixture, having become permanently embedded by natural causes, but that the owner of the land had the better right. If the boat was a fixture, this followed axiomatically as his Lordship indicated. If it were correct to regard the boat still as a chattel, the possessor of the land was entitled to possession of the land and everything in it.
47 In Allred v Biegel 219 SW 2 d 665 (1949) the Kansas City Court of Appeals, Missouri, affirmed the judgment of Commissioner Sperry in which the Commissioner followed Elwes v Briggs Gas Company.
48 The plaintiff submitted that the common law position changed once the 1967 NPW Act was proclaimed and that because the land was granted in freehold to a predecessor in title to the plaintiff who owned the land immediately before that proclamation, any relics buried in the land became the property of the Crown and were deemed to have always been the property of the Crown. Paragraph 21 of the plaintiff's outline of submissions stated: "s 33D(2) provided that the objects are not in the possession of any person because they may be in the land owned by that person".
49 Section 33D(2) provided relevantly that the owner of the land "shall not be deemed to have had possession of a relic that was not originally real property only by reason of the fact that it was in or on the land" owned by that person (emphasis added). This section specifically excluded the presumption found in the common law unless there was something more then the presence of the object in or on the land.
50 There is a question as to whether the artefacts or relics were "originally real property" within the meaning of section 33D(2). It seems to me that the term "real property" is used in s. 33D(2) as a distinction between immovables and movables, between land and chattels: Professor Peter Butt: Land Law (4th ed Lawbook Co. Ltd, 2001) par [517]. A further distinction needs to be drawn between relics that were made from part of the land, such as the rocks in this case that were made into cutting implements, and a relic that was itself originally real property or part of the land, for example a cave painting. I am of the view that the latter type of relic is what is intended to be referred to as relics that were "originally real property" in s 33D(2). The intention seems to me to have been to refer to relics that were real property, not real property, such as part of the rock, subsequently used to create relics.
51 On this construction of the Amending Act and the evidence before me I am satisfied that more probably than not the relics on the plaintiff's land were not "originally real property" within the meaning of that term in s 33D(2). In those circumstances the plaintiff's predecessors in title of the properties at the time immediately before the commencement of the Amending Act shall not be deemed to have had the possession of the relics only by reason of the fact that they were in or on the land owned or occupied by the predecessors in title. There would have to be evidence of something more than that fact to allow those persons to be deemed to be in possession of the relics under s 33D(1)(b). There is some evidence in the Navin Officer Report as to the various land uses, however there is nothing of a specific nature that in my view would justify the deeming of possession.
52 Mr Oshlack submitted that the relics are not able to be deemed to be the property of the Crown under s 33D(1) unless they are abandoned and submitted further that there had been no abandonment of the relics in this case. The use of the term "a relic" at the commencement of s 33D(1) and the use of the term "any relic" after sub-paragraphs (a) and (b) of s 33D(1) lead me to conclude that the requirement for abandonment as a pre-requisite to deeming the relics to be the property of the Crown under s 33D(1) is only applicable if the relics were not deemed to have been the property of the Crown at the commencement of the Amending Act. Such relics that are abandoned after the commencement of the Amending Act are deemed to be the property of the Crown.
53 Mr Oshlack put the same submission in respect of s 83 of the NPW Act. I am also of he view that the abandonment in that section is only a pre-requisite in relation to a relic that has not already been deemed to be the property of the Crown. If it were otherwise one would have expected to see that abandonment provision as part of sub-paragraph (a) in respect of relics already deemed under the provisions of the Amending Act to have been the property of the Crown.
54 I am satisfied that immediately before the commencement of the Amending Act in 1970 the plaintiff's land was freehold land owned by persons other than the Crown and thus the relics on that land were not at that time the property of the Crown. I am also satisfied that by reason of s. 33D(2) and the extent of the evidence before me, the relics were not in the possession of any person. In those circumstances the relics on the plaintiff's land are deemed as at that time, 1970, to have been, and always to have been the property of the Crown.
55 "Aboriginal owner" is defined in the NPW Act as having "the same meaning as in the Aboriginal Land Rights Act 1983". Amendments to the Aboriginal Land Rights Act 1983 (NSW) were made by the Aboriginal Land Rights Amendment Act 2001, No 118, assented to on 19 December 2001 and proclaimed on 25 October 2002. The term "Aboriginal owners" is defined as "Aboriginal persons whose names are entered on the Register of Aboriginal Owners because of the persons' cultural association with particular land" (s. 4(1)).
56 The Registrar appointed under that Aboriginal Land Rights Act 1983 (NSW) is obliged to establish and keep a Register of Aboriginal Owners (the Register) (s. 170). The name of an Aboriginal person must not be entered in the Register unless the Aboriginal person (a) is directly descended from the original Aboriginal inhabitants of the cultural area in which the land is situated, (b) has a cultural association with the land that derives from the traditions, observances, customs, beliefs or history of the original Aboriginal inhabitants of the land and (c) has consented to the entry of the person's name in the Register (s. 171(2)).
57 The Registrar is to use his/her best endeavours to enter in the Register the name of every Aboriginal person who has a cultural association with land in New South Wales, the location of the land and the nature of the cultural association. (s.171). Any Aboriginal person may make a written request to the Registrar to enter the name of an Aboriginal person in the Register, with the written consent of the Aboriginal person if that person is other than the person making the written request. Such request must specify the land with which it is claimed the Aboriginal person has a cultural association and the cultural area in which the land is situated (s.172).
58 The Registrar may refer a request for entry in and/or a request for omission from the Register and any other question arising in relation to the keeping of the Register by the Registrar to the Land and Environment Court. After the Chief Judge of the Land and Environment Court determines whether the Court should deal with the request or question, the Court may hear and determine the request or question or refer the request or question back to the Registrar with such directions or recommendations as the Court considers appropriate (s.175).
59 An Aboriginal person or group of Aboriginal persons who consider their names have been wrongly entered or omitted from the Register may request the Registrar to rectify the Register. If the Registrar refuses the request, there is a right of a appeal to the Land and Environment Court (s.174).
60 These provisions create a regime for the proper administrative and/or judicial consideration of requests to be registered as an Aboriginal Owner or Owners. Questions that will arise for consideration in that process include (1) whether the area is a cultural area; (2) the identification of the original Aboriginal inhabitants of the area; (3) whether the applicant for registration is a direct descendant of the original inhabitants of the cultural area; (4) the nature of the traditions, observances, customs, beliefs or history of the original Aboriginal inhabitant; (5) whether the applicant for registration has a cultural association with the land; and (6) whether that cultural association derives from the traditions, observances, customs, belief or history of the original Aboriginal inhabitants of the land.
61 The process of registration is a very important one not the least because the Director General has a discretion under s 85A(1)(a) of the NPW Act to transfer ownership of a relic to an Aboriginal Owner or Owners. The exercise of that discretion appears to be limited in at least two ways: (1) the person or class of person to whom the relics may be transferred or 'returned' is limited to Aboriginal owners; and (2) those persons must be entitled to and willing to accept possession, custody and control of the relics in accordance with "Aboriginal tradition" (s. 85A(1)(a)). Mr Oshlack conceded that the defendant is not registered as an Aboriginal Owner in relation to any lands at Sandon Point.