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[2001] FCA 820
Federal Court of Australia
2001-04-12
Brennan J, O'Loughlin J
Original judgment source is linked above.
APPLICATION FOR ORDER OF SUMMARY DISMISSAL 1 In the proceedings that are presently before the court the Northern Territory seeks an order that Ms Tilmouth's application for a determination of native title be summarily dismissed. Its application is supported by Mr Risk, who applied for and was earlier today granted leave to be joined as another respondent to the substantive application. Ms Tilmouth's application concerns three separate parcels of land, all of which are within or close to the East Arm Port Complex. 2 The history of the East Arm Port Complex and the native title proceedings that have been concerned with that complex have already been canvassed by me in two judgments, Risk v National Native Title Tribunal [2000] FCA 1589, judgment delivered 10 November 2000, and Quall v Risk [2001] FCA 378, judgment delivered on 6 April 2001. I do not consider that it is necessary for me to recite the factual background which, although detailed, is for the most part, uncontentious. I therefore include in my reasons so much of my findings of fact as are relevant to the determination of the issues in this case as are to be found in those two earlier decisions. 3 Before embarking on a consideration of the facts that are special to this application I note that the orders sought are of a most serious nature and are only to be granted in the clearest of cases. I also remind myself that this is not an occasion to become involved in contentious factual issues. On the contrary, I will consider this application by having regard to the version of facts that are the most beneficial to Ms Tilmouth and her application. 4 If one puts to one side the many inconsistencies to be found in the substantive application, the issue in this case has boiled down to a simple proposition, which can be expressed in these terms. Can the Yirra Bandoo, an acknowledged subgroup of the Larrakia people, and authorised only by members of the Yirra Bandoo, prosecute a claim for native title of Larrakia land in respect of which the Yirra Bandoo has a special interest? In my opinion the answer to that question is, as a matter of law, no. I have come to that decision based on dicta appearing the judgment of Brennan J (as he then was) in Mabo v Queensland (No 2) (1992) 175 CLR 1 at p 61, where his Honour had this to say: "But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed."
I emphasise his Honour's use of the words "community" and "communal". I take his Honour's remarks as indicating the community is a composite whole as distinct from subgroups of subsets or clans or divisions within that larger community but forming part of that community. The views of Brennan J are, in my opinion, repeated in the joint judgment of Beaumont and von Doussa JJ in Western Australia v Ward (2000) 170 ALR 59 at p 211. The same concept of community is emphasised by their Honours in their joint judgment. Thus, for example in par 201 their Honours had this to say on the findings of the trial judge:
"… assuming they are justified by the evidence, support a finding that the native title rights and interests existing in the area were possessed by the Miriuwung and Gajerrong community. The enjoyment of particular rights or responsibilities and control for different areas of 'country' followed from the observance of the traditional laws and customs of that community."
Later on the same page in par 204 their Honours said:
"Those submissions fail to recognise that rights of occupation, use and control of particular areas enjoyed by the Miriuwung and Gajerrong community, and the estate groups within it, are a consequence of the communal title shared by the composite community under the traditionally based laws and customs as currently acknowledged and observed by it." (emphasis added)
Once again there is the use of words such as "communal", "community" and "composite community". Mr Tilmouth QC, who appeared for the applicant in the substantive proceedings, argued that these passages from the two cases to which I have just referred, merely recognised that a larger group can make an application for native title. He submitted that they do not say that a smaller group cannot. I am conscious of the significance of that submission but I cannot agree with it, for I fear that it pays no recognition to the use of the language in the passages I have identified; in particular words such as "community" are to be ignored if that proposition is to be accepted.
5 I have considered the possibility of striking out Ms Tilmouth's application with leave for her to file and serve a fresh application in the name of the Larrakia people. I have decided against that for I consider that it would be an exercise of futility. Ms Tilmouth has filed an affidavit in these proceeding sworn and filed today in opposition to the orders sought and, in that affidavit, she exhibited a letter dated 21 December 2000 to the chairman of the Northern Land Council, which she and several others signed. 6 In that letter the signatories recognised that they were members of the Larrakia people. They made it clear they were a dissenting group to a settlement proposal that the Northern Territory government had offered to the Larrakia people to settle the native title proceedings in Action DG 6003 and 6004 of 1998. The letter shows the existence of a deep enmity from the signatories directed towards the Northern Land Council because, so it was claimed in the letter, of the Northern Land Council's continued inclusion of people in the Larrakia native title claims who, the signatories believe, are not truly members of the Larrakia community. 7 Proceeding upon the premise that Ms Tilmouth's application could only proceed with the authorisation of relevant members of the Larrakia native title claim group, pursuant to s61(1) of the Native title Act 1993 (Cth), as distinct from the Yirra Bandoo sub-group, it is obvious to me that no such authorisation would be forthcoming. This present application, as initiated by Ms Tilmouth, is in direct conflict with the settlement that has been, or is about to be, struck in actions DG6003 and 6004. For these reasons the order of the court is that the application in this present action number D6025 of 2001 be dismissed. 8 This matter has been decided on a point which I can describe, despite the length of my reasons, as "short and sharp", but it was nevertheless an arguable point of law and, as such, I think it reasonable to have regard to subsection (1) of section 85A of the Native Title Act, which says: "Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs." 9 I think it appropriate that that be the order and I so order. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.
Counsel for the Applicant: Mr Sydney Tilmouth QC with Mr G.R. James
Solicitor for the Applicant: Mr G.R. James
Counsel for the First Respondent: Mr T.I. Pauling QC with Mr V.B. Hughston
Solicitor for the First Respondent: Solicitor for the Northern Territory
Solicitor for the Second Respondent: Northern Land Council
Date of Hearing: 12 April 2001
Date of Judgment: 12 April 2001
Tilmouth
Northern Territory of Australia