Webster on behalf of Ngarigo Peoples v State of New South Wales

Interlocutory relief 9 The relevant background can be briefly stated as follows. 10 In October 2023, the NSW Government updated its Kosciuszko National Park Wild Horse Heritage Management Plan to include aerial shooting as an approved method of reducing the wild horse population of the KNP. A 2023 survey provides a best estimate of 17,393 wild horses in the KNP as of October 2023. The KNP Plan requires, by operation of ss 9-10 Kosciuszko Act, a reduction of the wild horse population to 3,000 by 30 June 2027. 11 By his affidavit sworn 16 April 2024, Mr Webster deposes that he is a Ngarigo man and brings this proceeding on behalf of the Ngarigo peoples. Mr Webster submits that the "killing, shooting and trapping of Brumbies and other wildlife" under the KNP Plan is unlawful in a number of respects, including by interfering with what is asserted to be Ngarigo peoples' property interest over the lands and waters of the KNP and other surrounding areas. 12 The KNP Plan referred to the perceived heritage value of maintaining a sustainable level of horse population in certain areas of the National Park as well as identifying the natural environmental, Aboriginal cultural heritage, historic and recreational values of the National Park. It referred to the National Park being culturally significant and important to Aboriginal people and containing more than 1,000 Aboriginal heritage archaeological sites protected under the National Parks and Wildlife Act 1974 (NSW). The State of New South Wales' evidence referred to the degree of consultation that had occurred with the Aboriginal Cultural Heritage Advisory Community, Community Advisory Panel, the Tumut Brungle Gundagai Area Aboriginal Advisory Committee, the Southern Snowy Mountains Aboriginal Community Executive Committee, the NSW Aboriginal Land Council, the Toomaroombah Kunama Namadgi Indigenous Corporation, the Twofold Aboriginal Corporation and Local Aboriginal Land Councils - Brungle-Tumut, Wagonga, Merrimans, Bega and Eden. 13 It is noted also that Mr Fuller had made a submission in response to the draft plan on behalf of Ngarigo peoples. 14 The State of New South Wales contests Mr Webster's claim on the basis that Mr Webster has not established that there is a serious question to be tried and alternatively, the balance of convenience does not favour the grant of interlocutory relief.

Organising principles regarding interlocutory relief 15 The application is brought under the Court's general power under s 23 of the Federal Court Act. 16 The applicant bears the onus of proving first, that there is a serious question to be tried as to the applicant's entitlement to relief. An applicant will make out a prima case if, were the evidence to remain as it is, there is probability that at trial the applicant would be entitled to the relief claimed. Second, the inconvenience or injury the applicant would be likely to suffer absent the injunction outweighs any injury the respondent would suffer if it were granted, namely, the balance of convenience is in the applicant's favour: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-23 per Kitto, Taylor, Menzies and Owen JJ. Third, damages would not be an adequate remedy: see, for example, Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 at [19] per Gleeson CJ and Crennan J. 17 The demonstration of whether there is a prima facie case for relief only requires that the applicant show that there is sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial. The strength of the likelihood depends on the nature of the rights the applicant asserts and the practical consequences likely to result from the order he or she seeks: see O'Neill at [65] and [71] per Gummow and Hayne JJ. 18 The degree of the likelihood of success is a factor related to the balance of convenience: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 per Mason ACJ. The apparent strength of the case "will often be an important consideration to be weighed in the balance": Samsung Electronics v Apple [2011] FCAFC 156; 217 FCR 238 at [67]. Accordingly, the stronger the prima facie case, the less that may be required to tip the balance of convenience and vice versa.

Is there a serious question to be tried? 19 Mr Webster has made no substantive application in this Court associated with these claims, all that has been filed is the claim for injunctive relief. Mr Webster has produced no evidence supportive of any claim for native title nor of any title at common law being recognised. 20 By his amended originating application , Mr Webster claimed relief in the following terms: 1 The Ngarigo Peoples have unextinguished and unaddressed property interest as declared by Mabo 1992 by any Government party common law aboriginal property interests over the lands and waters over the Kosciuszko National Park and other surrounding areas including the ACT, (refer to case authority WA vs Commonwealth 1995, High Court knowingly beyond the powers of Parliament to fully codify existing common law native title rights and interests over land and waters only in all into the NTA (see invalidity of section 12 of NTA). 2 The NSW Government has knowingly and unlawfully breached section 10 of the RDA, 1975, by deliberately ignoring our enjoyment of our common law land and waters constitunal [sic] rights and interest, and section 109 of the Australian Constitution, also refer to McHugh J's ending comments that the NTA is a 'stacked deck' in WARD (2002 High Court case). 3 All parties to bear their own costs. 4 Any other order the Court sees fit. 21 Mr Webster's claim is supplemented by his Submissions dated 20 May 2024 and affidavit sworn 16 April 2024. 22 At hearing, Mr Fuller, on behalf of Mr Webster, crystallised Mr Webster's position in the following way: The serious question of law is simple. The New South Wales legislation ... has ignored any Ngarigo peoples' interests over the KNP, which is recognised by the New South Wales Government as Ngarigo lands. Simply, there is no mention of this in the legislation, or has it ever been raised or addressed. As I said before, this injunction is not claimed under the Native Title Act. we have existing common law rights enjoyed by the Ngarigo peoples. 23 Mr Webster claims that: (a) the Ngarigo peoples have unextinguished property interests over the KNP and the shooting of wild horses and other wildlife under the KNP Plan unlawfully interferes with those property interests; (b) the State of New South Wales has breached s 10 of the RD Act by unlawfully interfering with, and failing to recognise the existence of, Ngarigo peoples' property interests in the KNP; and (c) Section 10 of the RD Act operates to invalidate any New South Wales legislation that purports to authorise the killing of wild horses on the KNP, being Ngarigo peoples' land. 24 Mr Webster submits that the Ngarigo peoples "maintain their constitutional legal protection of our common law Aboriginal ownership of areas of vacant crown lands within the KNP, and surrounding areas in both NSW and Victoria, since Mabo (No2) 1992." Mr Webster appeared to contend that the effect of the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 is that the Ngarigo Peoples "now have existing common law Aboriginal property and waters constitutionally protected legal interests over the KNP over parts of that have not been lawfully extinguished." As a consequence, the KNP Plan interferes with those property rights held by the Ngarigo peoples. Mr Webster further contended that by the State of New South Wales "ignoring the constitutional protected rights of the Ngarigo Peoples" this conduct has had the further effect of contravening s 10 of the RD Act. 25 As is apparent from the foregoing, Mr Webster asserted, in various aspects of his submissions as to, the existence of Ngarigo peoples "common law Aboriginal ownership", "Ngarigo common law property rights" and "Ngarigo Peoples … common law Aboriginal property and waters". This submission appears to misunderstand the relationship between native title and the common law, and the meaning of common law recognition provided by s 223 of the Native Title Act 1993 (Cth). 26 In Fejo (on behalf of Larrakia People) v Northern Territory [1998] HCA 58; 195 CLR 96 at [46] Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ state: 46 Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an intersection of traditional laws and customs with the common law. (Emphasis added.) 27 In Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 Gleeson CJ, Gummow and Hayne JJ explain (at [33]-[34], [37] and [75]): 33 "Native title" means certain rights and interests of indigenous peoples. Those rights and interests may be communal, group or individual rights and interests, but they must be "in relation to" land or waters. The rights and interests must have three characteristics. The first is that they are possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned. That is, they must find their source in traditional law and custom, not in the common law It will be necessary to return to this characteristic. 34 [native title] rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have "a connection with" the land or waters. Again, the connection to be identified is one whose source is traditional law and custom, not the common law. … 37 First, it follows from Mabo [No 2] that the Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court. Secondly, upon acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part, but native title to that land survived the Crown's acquisition of sovereignty and radical title. What survived were rights and interests in relation to land or waters. Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned. … 75 To speak of the "common law requirements" of native title is to invite fundamental error. Native title is not a creature of the common law, whether the Imperial common law as that existed at the time of sovereignty and first settlement, or the Australian common law as it exists today. Native title, for present purposes, is what is defined and described in s 223(1) of the Native Title Act. Mabo [No 2] decided that certain rights and interests relating to land, and rooted in traditional law and custom, survived the Crown's acquisition of sovereignty and radical title in Australia. It was this native title that was then "recognised, and protected" in accordance with the Native Title Act and which, thereafter, was not able to be extinguished contrary to that Act (s 11(1)). (Emphasis added.) 28 The State of NSW tendered evidence of searches which had been undertaken of the Register of National Native Title claims, maintained by the National Native Title Tribunal, which found that: (a) there were no claims recorded on the Register of National Title Claims maintained by the National Native Title Tribunal; (b) there were no determinations recorded on the National Native Title Register maintained by the Tribunal; and (c) there were three applications for native title recorded on the Tribunal's website, but each of those applications was recorded as "discontinued". 29 In a sense, the absence of evidence of this kind is unsurprising given that Mr Webster submits he is able to assert the existence of unextinguished property interests over the KNP regardless of recognition under the NT Act. However, the difficulty for Mr Webster is that he has provided no evidence to support a claim of native title, that could be recognised otherwise. 30 Whilst the State of New South Wales appeared to accept that Mr Webster did not need to bring a native title claim under the NT Act in order to assert native title recognised by the common law, the regime established by the NT Act, indicates the kind of evidence one would expect would be relied upon. 31 For example, given such a claim is being made on the basis of a collective right, there would need to evidence of authorisation from the group. The NT Act requires, in a like circumstance (the pursuit of an acknowledgement of a collective right by an individual) that an application be made by one of the persons identified in s 61 and be supported by the material identified in s 62. 32 It is evident from the above background, that as part of the consultation surrounding the formation of the KNP Plan that a number of First Nations stakeholders were consulted and it is not known as to whether any of the peoples within those groups have asserted or have been found to have any native title interest in the very large area of land which is the subject of the proposed order sought by Mr Webster. 33 As submitted by the State of NSW, to the extent that Mr Webster seeks to rely upon a native title interest recognised by the common law, assuming the Court had jurisdiction to determine such a claim (contrary to s 213 of the NT Act, which provides native title must be determined in accordance with the Act), Mr Webster has not identified the nature of that interest. 34 On Mr Webster's case the existence of the property interest underpins the claim of invalidity. Mr Webster, submitted s 10 of the RD Act operates to "invalidate current NSW legislation that purports to authorise the killing of wild horses on our land" (emphasis added). Mr Webster's submission was, in effect, to argue an inconsistency between his right under s 10 of the RD Act and the impinging or limiting of that right by the trespass and culling of fauna by operation of the State law, the Kosciuszko Act. Section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Assuming that this Court can, for the purposes of "a right" under s 10 of the RD Act determine the existence of native title as recognised by common law, for the same reasons as above, given that there is no evidence to satisfy me that there is any prima facie claim by Mr Webster over the land, there is no apparent basis for the claim of invalidity. 35 For these reasons, it is my view that Mr Webster has not satisfied me that there is a serious question to be tried.

Balance of convenience 36 In order to determine whether the balance of convenience favours the granting of an injunction, the Court must balance the comparative prejudice and hardship likely to be suffered if the injunction is or is not granted. 37 Mr Webster submits that the likely harm is the continuous trespass on the land that is leading to the culling of the wild horses and other native animals. 38 It is my view that the balance of convenience does not favour the injunction being granted because of the weakness in Mr Webster's claim. 39 In addition, if an injunction is granted, significant prejudice and hardship will be suffered by the respondent, third persons and the public generally. More particularly, a pause in the horse removal operations would result in: (a) environmental degradation of a kind that the operations are specifically intended to reduce, including habitat loss, reduced water quality, soil compaction and erosion, and loss of vulnerable and endangered species; (b) significant resourcing and personnel consequences for the National Parks and Wildlife Service, including on contracting arrangements; and (c) prolonging of the closure of parts of the National Park, comprising the ability of the public to enjoy the National Park. 40 Any prejudice to the applicant of refusing the injunction could only be established if he had a native title interest in the relevant land. There has been no claim to such an interest, and no such interest could be established in the present proceedings. 41 As to the question of costs, whilst the awarding of costs is discretionary, it is ordinary that costs follow the event in administrative and constitutional cases (where there is no other applicable statutory fetter), namely that the losing party is required to pay the other party's costs. The State of NSW seeks its costs by application of the ordinary principle to which I have referred. I note that in native title proceedings each party pays their own costs: s 85A of the NT Act. However, both parties agree that these are not native title proceedings under that Act. Mr Webster submitted that he should not be required to pay costs because of the public interest dimension of his case. However, I am of the view, that given the weakness of his case, any public interest element enlivened does not satisfy me that I ought to depart from the ordinary course.

Conclusion 42 Accordingly, the application for an interlocutory injunction is refused. Mr Webster, consistent with the usual course, should be ordered to pay the State of NSW's costs. 43 I note that this matter has only just been commenced and that Mr Webster has sought interlocutory relief on an urgent basis. Accordingly, it is appropriate to set down this matter for further case management in a few weeks for Mr Webster to consider whether he wants to proceed with the matter generally and to timetable the matter in the ordinary way. It would of assistance if the State of New South Wales could write to Mr Webster promptly to inform him of what the ordinary next steps are in a proceeding of this kind and foreshadow its own position with respect to the matter generally and timetabling. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.