Anderson v Indigenous Land and Sea Corporation

[2024] NSWCA 9

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Anderson v Indigenous Land and Sea Corporation [2024] NSWCA 9

Hearing dates:

24 July 2023

Date of orders:

7 February 2024

Decision date:

07 February 2024

Before:

Kirk JA at [1];
Stern JA at [115];
Simpson AJA at [116]

Decision:

(1)   Appeal and cross-appeal dismissed.

(2)   The appellants are to pay the respondent’s costs of the proceedings in this Court.

Catchwords:

LAND LAW – Indigenous land rights – Aboriginal and Torres Strait Islander Act 2005 (Cth) – Conditional grant of land pursuant to statutory functions – Validity of conditions upon grant of land – Challenge to the validity of transfer of land by persons not party to the transfer

LAND LAW – Indigenous land rights – Claims for general equitable Indigenous title separate to native title

LAND LAW – Adverse possession – Consent of documentary owner

CONSTITUTIONAL LAW – Commonwealth Constitution – Race – Scope of legislative power under s 51(xxvi) – Aboriginal and Torres Strait Islanders peoples as distinct “people of any race”

Legislation Cited:

Aboriginal and Torres Strait Islander Act 2005 (Cth), ss 4, 191T(2)

Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), ss 3, 191B, 191C, 191D, 191E, 191G, 191H, 191S, 191SA, Pt 4A

Commonwealth Constitution, s 51(xxvi)

Competition and Consumer Act 2010 (Cth), Sch 2, ss 20, 21

Corporations Act 2001 (Cth)

Crown Lands Act 1884 (NSW)

Crown Lands Consolidation Act 1913 (NSW)

Judiciary Act 1903 (Cth), s 78B

Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 (Cth)

Land Title Act 1994 (Qld)

Limitation Act 1969 (NSW), s 27(2)

Limitations of Actions Act 1974 (Qld), s 13

Native Title Act 1995 (Cth), s 223

Real Property Act 1900 (NSW), s 45D

Western Lands Act 1901 (NSW)

Cases Cited:

Attorney-General (NSW) v Brown (1847) 1 Legge 312

Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21

Cram Foundation v Corbett-Jones [2006] NSWSC 495

Hardy v Sidoti [2020] NSWSC 1057

Houssein v Under Secretary of Industrial Relations & Technology (NSW) (1982) 148 CLR 88; [1982] HCA 2

Knox on behalf of the Yuwaalaraay/Euahlayi People v State of Queensland [2021] FCA 1440

Love v Commonwealth (2020) 270 CLR 152; [2020] HCA 3

Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23

R v Bonjon (Supreme Court of New South Wales, 16 September 1841)

Sidoti v Hardy [2021] NSWCA 105

Western Australia v Commonwealth (1995) 183 CLR 373; [1995] HCA 47

Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58

Category:

Principal judgment

Parties:

Michael Anderson (First Appellant)
Jutta Sapotnick-Eckford (Second Appellant)
Indigenous Land and Sea Council (Respondent)

Representation:

Counsel:

Self-represented (Appellants)
S Docker and E Keynes (Respondent)

Solicitors:

Self-represented (Appellants)
Thomson Geer (Respondent)

File Number(s):

2022/382189

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Civil

Citation:

Indigenous Land and Sea Corporation v Anderson [2022] NSWSC 1650

Date of Decision:

7 December 2022

Before:

Griffiths AJ

File Number(s):

2020/00363972

HEADNOTE

[This headnote is not to be read as part of the judgment]

The first and second appellants are, respectively, a ceremonial elder of the Ghurrie clan and his wife. The respondent is a federal statutory corporation established under the Aboriginal and Torres Strait Islander Act 2005 (Cth) (ATSI Act). The respondent is the registered proprietor of two large rural stations known as Mogila, which is in NSW, and Currawillinghi, in Queensland. The respondent, in a previous incarnation, granted Mogila and Currawillinghi to Ngurampaa Ltd (Ngurampaa) by two deeds. Each deed contained clauses imposing conditions on the transfer, including that no order was made for the winding up of Ngurampaa. If any condition was not met, Ngurampaa was to transfer the land back to the respondent upon request. On 20 July 2015 the Supreme Court ordered that Ngurampaa be wound up. In April 2019 the respondent, Ngurampaa, and Ngurampaa’s liquidator executed transfers of Mogila and Currawillinghi from Ngurampaa back to the respondent. Ngurampaa was subsequently deregistered.

Solicitors acting on behalf of the respondent sent letters to the appellants, who were and have been occupants of Mogila and Curranwillinghi, demanding vacant possession. The appellants declined to vacate. The respondent commenced proceedings in the Supreme Court seeking possession of the lands. The primary judge, Griffiths AJ, granted the orders for possession sought by the respondent.

In their appeal the appellants raised six issues: (i) what legislation applied with respect to the respondent and its powers, and whether the legislation authorised the imposition of conditions on grants of land; (ii) who owned the land at relevant times; (iii) adverse possession in the established legal sense; (iv) alleged unconscionable or fraudulent conduct of the respondent; (v) whether relevant parts of the ATSI Act, and perhaps also of the Native Title Act 1995 (Cth), were supported by the Commonwealth’s race power under the Commonwealth Constitution; and (vi) whether the first appellant had a claim in relation to the properties based upon some general equitable Indigenous title separate to native title.

The Court (per Kirk JA, Stern JA and Simpson AJA agreeing) dismissed the appeal and held:

1. As to issue (i), the arguments about the validity of the conditions on which Mogila and Currawillinghi were granted cannot aid the appellants: at [55]. The respondent is now the registered owner of the two stations and as such has indefeasible title, subject to any exceptions to indefeasibility being established. Even if the respondent had misunderstood the extent of its statutory powers that would not, without more, amount to the sort of fraud required in order to overcome indefeasibility: at [54].

2. As to issue (ii), the appellants’ argument, in substance, was that on the respondent’s position Ngurampaa held the lands on trust for the respondent, and yet the legislation did not authorise the creation of such a trust: at [56]. In fact that was not the position of the respondent: at [60]-[61]. Prior to the winding up order Ngurampaa owned the two properties both legally and beneficially: at [63]. In any event, the appellants’ arguments seem to come back to the assertion that the respondent was not authorised under the legislation to impose the conditions that it did in the deeds. For the reasons given in relation to issue (i), such arguments do not avail the appellants in this case: at [64].

3. As to issue (iii), Ngurampaa was in control of the lands at all times up until its liquidator surrendered the lands to the respondent. There is no evidence that Ngurampaa did not consent to the appellants being on the land. Indeed, the appellants constituted a majority of the board of Ngurampaa from 2009 onwards, so consent of the corporation for their own occupation may be presumed. Whilst the respondent subsequently withdrew the appellants’ permission to occupy the lands, that occurred well within the relevant limitation period: at [68]. No error has been established in the way the primary judge dealt with adverse possession insofar as that notion was employed in established legal terms: at [71].

Hardy v Sidoti [2020] NSWSC 1057; Sidoti v Hardy [2021] NSWCA 105, referred to.

4. As to issue (iv), the appellants’ claims about unconscionable dealings by the respondent were not pleaded clearly enough to be properly at issue: at [73] and [75]. Further, complaints about the caveats having been lodged seemed in substantial part to be complaints about the statutory scheme: at [79]. No error has been made out in the primary judge’s rejection of the appellants’ arguments on unconscionability: at [80]-[86].

5. As to issue (v), whilst the concept of race and the identification of racial groups are no doubt contestable issues as a matter of social science, philosophy and science, the understanding of the concept of “the people of any race” as employed in s 51(xxvi) of the Constitution is a legal question which has received a clear answer in Australia: at [91]. For legal purposes there is no doubt that s 51(xxvi) authorises the federal Parliament to make special laws that it deems necessary with respect to Aboriginal Australians: at [95]. There is no reason to doubt the validity of Pt 4A of the ATSI Act or any provisions of the Native Title Act based upon the argument presented by the appellants: at [97].

Western Australia v Commonwealth (1995) 183 CLR 373; [1995] HCA 47; Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21, applied. Love v Commonwealth (2020) 270 CLR 152; [2020] HCA 3, referred to.

6. As to issue (vi), the first appellant asserted a right of ownership, different from native title, under traditional laws and customs of the Indigenous inhabitants of the lands in question, which was said to be recognised by the common law of Australia. But any rights of the kind asserted are ones that, to the extent recognised within the Australian legal system, are recognised as native title rights: at [106].

Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23; Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58, applied.

JUDGMENT

1. KIRK JA: This appeal concerns a dispute over the possession of two large rural stations, one in New South Wales, known as Mogila, and the other in Queensland, known as Currawillinghi. The respondent, the Indigenous Land and Sea Corporation (ILSC), is the registered proprietor of the parcels of land in both. The appellants live on those properties and claim legal ownership.

2. In the proceedings below the ILSC sought orders for possession of the lands, and in the alternative sought an injunction to restrain the defendants’ continuing trespass. The appellants raised various defences, including challenges to the validity of steps taken by the ILSC (in its current and previous incarnations) relating back to its initial acquisition of Mogila and Currawillinghi and the lawfulness of various subsequent actions in relation to the land. They also challenged the Court’s jurisdiction. The first appellant filed a cross-claim by which he sought judgment for possession of Mogila and Currawillinghi and orders for the removal of the ILSC from the register in respect of the Lands. The primary judge, Griffiths AJ, dismissed the challenge to the Court’s jurisdiction, dismissed the cross-claim, and granted the orders for possession sought by the ILSC: Indigenous Land and Sea Corporation v Anderson [2022] NSWSC 1650.

3. The appellants, who represented themselves, list 19 grounds in their notice of appeal. Their written submissions were long – well in excess of what is permitted under the Court’s rules – and somewhat diffuse. By and large they were not structured by reference to the grounds of appeal. Each of the appellants also addressed this Court orally. I understood the appellants to adopt each other’s submissions, so in general I will not distinguish between which appellant made any particular submission, save in relation to the arguments about claimed Indigenous title, which I understood to be raised only by Mr Anderson.

4. The topics raised by the appellants were as follows:

1. what legislation applied with respect to the ILSC and its powers, and whether the legislation authorised the imposition of conditions on grants of land (to the extent it was raised by the notice of appeal this was done by ground 19);

2. a dispute as to who owned the land at relevant times (grounds 1-4);

3. a possible argument about adverse possession in the established legal sense (perhaps raised by grounds 11, 15 and 16);

4. the claimed unconscionable or fraudulent conduct of the respondent (grounds 5-7);

5. relevant parts of the Aboriginal and Torres Strait Islander Act 2005 (Cth) (ATSI Act), and perhaps also of the Native Title Act 1995 (Cth), were said not to be supported by the Commonwealth’s race power under the Commonwealth Constitution (not clearly raised by any ground of appeal);

6. the claim for some general law equitable Indigenous title separate to native title (grounds 8-18).

5. I will address the topics in that order, after first setting out the facts leading up to the present dispute. As explained below, no error has been established in his Honour’s judgment. The appeal should be dismissed with costs.

Background

The parties

6. The first appellant, Michael Anderson, is a ceremonial elder of the Ghurrie clan and a ceremonial Elder and leader of the Euahlayi Nation from Goodooga. The second appellant, Ms Jutta Sapotnik-Eckford, is his wife. Mr Anderson and Ms Sapotnik-Eckford represented themselves in the proceedings below, as in this Court.

7. The respondent, the ILSC, is a federal statutory corporation established under s 191A of the ATSI Act, which was formerly the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (ATSIC Act). The ILSC was known as the Indigenous Land Corporation (ILC) until 1 February 2019.

8. Section 191C of the Act sets out the ILSC’s functions, which include “land acquisition functions” and “land management functions”. Section 191D sets out the “land acquisition functions”. These include the acquisition of interests in land for the purpose of granting those interests to Aboriginal or Torres Strait Islander corporations, as well as making grants of money or guaranteeing loans to those corporations. Section 191E sets out the “land management functions”. These involve general powers of management over lands, as well as the power to make and guarantee loans for those purposes. The Act also gives the ILSC power to do all things necessary or convenient to be done for or in connection with its functions: s 191H(1).

Mogila and Currawillinghi

9. The follow summary is substantially taken from the judgment below at [111]-[150].

10. Mogila consists of 20 different titles. Six of those are held in fee simple, 13 of the titles are perpetual leases for pastoral purposes under the Western Lands Act 1901 (NSW), and the remaining lease is a perpetual conditional lease under the Crown Lands Act 1884 (NSW) and the Crown Lands Consolidation Act 1913 (NSW). All titles are registered under the Real Property Act 1900 (NSW). Currawillinghi consists of one parcel of land which is held in fee simple. The title is registered under the Land Title Act 1994 (Qld).

11. In September 1996 the ILC resolved to purchase Mogila and Currawillinghi. On 27 June 1997 the transfer of Mogila from Mogila Pty Ltd to the ILC for $3,050,000 was executed following completion of a contract for sale.

12. On 17 February 1999, the transfer of Currawhillinghi to the ILC from Mr James Richmond for $642,170 was executed following completion of a contract for sale.

13. On 28 June 1997 the ILC granted a lease and sub-lease of the freehold and leasehold land respectively on Mogila to Mogila Merino Stud Pty Ltd (MMS) for a 5-year term. MMS had been incorporated by the ILC to operate the two properties as agricultural enterprises. The ILC agreed to advance MMS $1,319,200 to purchase plant, equipment and livestock.

14. On 14 July 1999 the ILC granted a lease of Currawillinghi to MMS for a term commencing 5 February 1999 and ending on 27 June 2002.

15. On 26 May 1998 Ngurampaa Ltd was registered as an unlisted Australian public company limited by guarantee under the Corporations Act 2001 (Cth). Under its Articles of Association there were two classes of members. Resident Members had voting rights and could be elected as Board Members. Non-resident Members did not have voting rights and could not be elected as Board Members. Both classes were required to be descendants of the Yuwaalaraay/ Yuwaaliyaay Traditional Owners of Mogila and Currawillinghi. As all members of Ngurampaa were Aboriginal persons, it was an “Aboriginal or Torres Strait Islander corporation” within the definition of that term in s 4 of the ATSI Act. Mr Anderson became a director of Ngurampaa in August 2001, and Ms Sapotnik-Eckford in November 2009. They remained directors until it was wound up.

16. By deed dated 22 June 1998 the ILC agreed to grant Mogila to Ngurampaa (Mogila Deed). The transfer was dated 26 June 1998 but was not registered until July 2000, due to time taken to obtain the consent of the Western Lands Commissioner to the transfers of the leasehold titles. On 27 January 2000, by deed, ILC agreed to grant Currawhillinghi to Ngurampaa (Currawhillinghi Deed). The transfer was registered in August 2000.

17. The Mogila Deed and the Currawillinghi Deed each included clauses to the following effect:

1. The ILC agreed to transfer the lands to Ngurampaa subject to (a) Aboriginal persons continuing to have a controlling interest in Ngurampaa; (b) Ngurampaa complying with the terms of each Deed; and (c) no order being made for the winding up of Ngurampaa: cll 2.1–2.2 of both Deeds.

2. If any of those conditions were not met, Ngurampaa was required to transfer the lands back to the ILC upon request: cl 2.3 of both Deeds.

3. Ngurampaa’s title was subject to a lease in favour of Mogila Merino Stud: cll 3.1–3.4 of the Mogila Deed; cl 5.3 of the Currawillinghi Deed.

4. There were restrictions on the use of the lands, including that Ngurampaa must apply the lands solely towards the promotion of its objects for the benefit of its members and could not dispose of or deal with its interest without the consent of the ILC: cll 5.1–5.5 of the Mogila Deed; cl 3.1 of the Currawillinghi Deed.

5. Ngurampaa could dispose of its interest in the lands in accordance with s 191T of the ATSIC Act by surrendering that interest to the ILC on terms and conditions as agreed between Ngurampaa and the ILC: cl 6.1 of the Mogila Deed; cl 4.1 of the Currawillinghi Deed.

6. Ngurampaa charged the lands in favour of the ILC as security for its obligations under each Deed and agreed to the ILC lodging a caveat to protect the charge: cll 7.1–7.2 of the Mogila Deed; cll 5.1–5.2 of the Currawillinghi Deed.

18. The ILC lodged caveats on the title of Mogila and Currawillinghi at the same time that the transfers to Ngurampaa were registered (in July 2000 and August 2000 respectively). Ngurampaa had consented to each caveat, consistently with its obligations under the Deeds. The consents were signed by Ms Patricia Cubby and Ms Jennifer Gibbs, as directors of Ngurampaa. They had also been signatories to the Deeds. In respect of the Currawillinghi caveat, Ngurampaa’s consent was signed by Ms Patricia Cubby and Ms Jennifer Gibbs and is dated 12 January 2000. This is the day on which the respondent says that two solicitors from Lovett & Green travelled to Goodooga. The appellants deny that fact.

19. The Mogila caveat specifies the basis of the caveat as an “equitable interest in the Land”. The caveat then records the caveator’s right to obtain an injunction to enforce the provisions of both s 191S of the ATSIC Act and cl 7.1 of the Mogila Deed. It also refers to the caveator’s right to caveat under cl 7.2 of the Mogila Deed and its right to secure performance of the obligations referred to in cl 4 of the Mogila Deed. The Currawillinghi caveat specifies the interest being claimed as a “statutory entitlement to regulate dealings with the land by virtue of section 191SA” of the ATSIC Act.

20. Ngurampaa decided not to renew the leases of MMS over the two properties, which expired in June 2002. In September 2002 MMS entered into a deed under which it granted plant, equipment and livestock to Ngurampaa (without charge). On 20 December 2002 Ngurampaa granted a lease to Theodore and Alice Bradstreet over part of Mogila for a 6-year term commencing on 1 October 2002, which was registered with the ILC’s consent. On 14 March 2003 Ngurampaa granted a sub-lease to the Bradstreets over the balance of Mogila for the same term, which was again registered with the ILC’s consent. Both leases terminated early in around 2005.

18. From then on Ngurampaa ran the two stations itself.

19. On 6 May 2015 the Australian Taxation Office (ATO) applied to have Ngurampaa wound up on the basis of unpaid taxes. On 22 May 2015 the ILC wrote to Mr Anderson in his capacity as a director of Ngurampaa and asked that Mogila and Currawillinghi be transferred back to the ILC. Mr Anderson refused, referring to ongoing litigation with Brewarrina Shire Council concerning rates. He stated that Ngurampaa intended to defend the tax matter as the value of the two properties exceeded any debt to the Australian Taxation Office.

20. On 20 July 2015 the Supreme Court of this State ordered that Ngurampaa be wound up. Mr Morgan Chubb was appointed liquidator.

21. On 24 July 2015 the ILC sought the re-transfer of Mogila and Currawillinghi from Ngurampaa, relying on its claimed rights under the Deeds – in particular, the condition that no order be made for Ngurampaa to be wound up. This request initially was refused by the liquidator.

22. An internal ILC “Property Re-acquisition Report” prepared in November 2016 was in evidence. It outlined the background, the issues and various options that the ILC could pursue in relation to seeking to re-acquire the two stations. It indicated that the two properties were “conservatively valued at $7 million”. It recommended paying $200,000 to the liquidator to settle liquidation debts and to pay an additional amount of nearly $197,000 to settle outstanding rates payable to the local councils.

23. Negotiations between the ILC and the liquidator continued. On 24 January 2019 a Deed of Settlement and Release between the ILC, Ngurampaa and Mr Chubb was entered into, consistently with the terms recommended in the Re-acquisition Report. Pursuant to cl 3.2 of that deed Ngurampaa was required on the Completion Date to transfer Mogila and Currawillinghi to the ILC in return for payment of $200,000. The ILC also acknowledged that the land was charged with outstanding rates for which it would be liable. In recital E the parties agreed that the transfers of the land constituted a surrender under s 191T(2) of the ATSI Act.

24. The transfers of Mogila and Currawillinghi from Ngurampaa back to the ILSC (as the ILC had by then become) were executed in April 2019 and registered later that year.

25. Ngurampaa was deregistered on 25 February 2020.

26. On 5 August 2020 solicitors acting on behalf of the ILSC sent letters to both appellants demanding vacant possession of Mogila and Currawillinghi. These letters stated that an action for possession would be pursued if the appellants and those living with them did not vacate the properties within 28 days. It also asked that they remove any livestock, machinery, and other equipment. Assistance was offered, including reimbursement of reasonable relocation costs. The letters referred to earlier discussions with Mr Anderson.

27. The appellants responded, declining to vacate. They cited Mr Anderson’s status as a traditional owner and Ms Sapotnik-Eckford’s status as his wife. In December 2020 the ILSC commenced the proceedings below.

28. A native title claim over land in Queensland that included Currawillinghi was determined by a consent determination of native title by the Federal Court in November 2021: Knox on behalf of the Yuwaalaraay/Euahlayi People v State of Queensland [2021] FCA 1440.

The relevant legislation and its application here

32. The appellants seemed to make two types of arguments in relation to the operation of the ATSIC and ATSI Acts. The first related to what provisions actually applied; the second to whether the ILC could impose conditions on the grant of land, and related points about the “spirit” and purpose of the Act.

33. Neither issue was expressly raised by any ground of appeal, save that ground 19 said that the primary judge erred in failing to consider the spirit and purpose of the legislation. Grounds 1-4 did seem implicitly to raise the point about the ILC’s power to impose conditions on grants. In any event, the respondent did not object to these issues being argued.

Were the relevant provisions in place at the time?

34. The appellants submitted that it is “imperative that this court make a ruling as to which Act applies with respect to the governing laws at the time of these exchanges and the ultimate settlement”. Although not clear, in the proceedings below it seems that Mr Anderson argued that s 191S did not exist at around the time the Deeds were entered into. He put in oral submissions to this Court that “the Act that was in place at the time did not incorporate the Indigenous Land Corporation but they used the Land Fund of the 1998 ATSIC Act”.

35. As the primary judge correctly pointed out (at [173]), the argument is incorrect. Part 4A of the ATSIC Act, and subsequently the ATSI Act, was in place at all material times. The Part, which originally was headed “Indigenous Land Corporation and Aboriginal and Torres Strait Islander Land Fund”, was inserted into the ATSIC Act by the Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 (Cth). The Part provided for the establishment and powers of the ILC. Sections 191C, 191D, 191E and 191H were in place in 1998, giving the ILC the functions and powers referred to above (at [8]). So, too, was s 191S, which is relevant to the proceedings and is set out below. Section 191SA, also quoted below, was inserted in 1996.

36. Various provisions in Pt 4A, including ss 191S and 191SA, were amended by the Aboriginal and Torres Strait Islander Amendment (Indigenous Land Corporation) Act 2018 (NSW), which renamed the ILC the ILSC, and introduced provisions relating to water rights. That amending Act did not materially alter the relevant provisions for current purposes. Neither ss 191S or 191SA has otherwise been amended.

37. The relevant provisions were thus in place in 1997 and 1998, when the two stations were acquired by the ILC then transferred to Ngurampaa; they were in place in 2015, when the ILC asserted its right to reclaim the two stations; and they were in place in 2019, when the ILSC regained the stations.

38. It may be that the appellants’ point about these provisions is that they were invalid, or did not apply to the type of “common law legal right in equity” which they assert. Those arguments are addressed below.

The ability of the ILC to impose conditions

39. The appellants argued that the ILC did not have the power to impose the conditions that it did in the two Deeds of grant.

40. The two Deeds are in similar terms. It is sufficient to focus on the Mogilla Deed. As noted above, cl 2.1 of the Mogilla Deed provided for the grant of the ILC’s interest in the land to Ngurampaa. Clause 2.2 stated that the “grant shall continue subject to” three identified conditions: (a) that Aboriginal persons continue to have a controlling interest in Ngurampaa; (b) that Ngurampaa comply with the terms of the Deed; and (c) “no order being made for Ngurampaa to be wound up”. Clause 2.3 then stated that if “an event occurs such that the Grant is no longer to continue as provided by clause 2.2, Ngurampaa shall if requested by the ILC transfer its interest in the Land back to the ILC”.

41. Clause 5.3 provided that “Ngurampaa shall not without the consent of the ILC dispose of its interest in the Land or give a charge with respect to an asset of Ngurampaa that consists of, or includes, the interest of Ngurampaa in the Land”. Clauses 7.1 and 7.2 were as follows:

ENCUMBRANCES

7.1 In order to provide security for the ILC in respect of Ngurampaa’s obligations under this Deed, Ngurampaa charges its estate in the Land in favour of the ILC. If Ngurampaa fails to comply with its obligations under this Deed the ILC shall be entitled to exercise its rights as chargee under the charge created pursuant to this clause 7.1.

7.2 Ngurampaa agrees that the ILC may, in order to protect its interest in the Land derived pursuant to clause 7.1, register a caveat over the Land forbidding the registration of any dealing in respect of the Land, and the Association further agrees not to take any action to remove the caveat.

42. Clause 5.3 reflects the terms of ss 191S and 191SA of the ATSIC Act (as it then was):

191S Restriction on right to dispose of, or charge, property

When section applies

(1) This section applies if a body corporate has acquired an interest in land and:

(a) the interest was acquired from the Indigenous Land Corporation under paragraph 191D(1)(a); or

…

Disposals and charges prohibited

(2) The body corporate must not, without the consent of the Indigenous Land Corporation:

(a) dispose of the interest; or

(b) give a charge with respect to an asset of the body corporate that consists of, or includes, the interest.

Purported disposals to be of no effect

(3) If the body corporate purports to dispose of the interest without the consent of the Indigenous Land Corporation, the purported disposition is of no effect.

Purported charges to be of no effect

(4) If:

(a) the body corporate purports to give a charge with respect to an asset of the body corporate that consists of, or includes, the interest or right; and

(b) the purported charge is given without the consent of the Indigenous Land Corporation;

the purported charge is of no effect.

…

191SA Indigenous land corporation’s interest in land

(1) Any liability or obligation of a body corporate to the Indigenous Land Corporation arising:

(a) under the terms and conditions of a grant, loan or guarantee referred to in subsection 191D(2) or (2A) or 191E(2), (2A) or (2B); or

(b) under section 191S;

is taken to be an interest of the Corporation in the land to which the liability or obligation relates.

(2) The land is charged with the payment of all costs and expenses incurred by the Corporation in respect of its enforcement of the liability or obligation.

43. The appellants sought to characterise the conditions imposed in the Deeds as meaning that the land was actually held by Ngurampaa on trust for the ILC, and submitted that this was contrary to the spirit and purpose of the ATSIC Act. Mr Anderson said in oral submissions that:

the title deed was given to a corporation in trust for the ILC, not us. Because the Act as I saw it, we had a legitimate expectation that the benefits that were written into those acts to redress dispossession of Aboriginal people would have benefitted us Traditional Owners, but it appears that the ILC have a contrary opinion about that, and so theirs come back to a commercial field.

44. For current purposes it is the conditions in cll 2.2-2.3 relating to ILC having a right to reclaim the lands in the event of an order being made for Ngurampaa to be wound up which are most significant. That was the basis of the claim that the ILC made for return of the two stations after Ngurampaa was placed into liquidation. The appellants argued that the ILC had no statutory basis for imposing these conditions on the grant of the land.

45. As noted, s 191D(1)(a) authorised the ILC to grant interests in land to Aboriginal or Torres Strait Islander corporations, and it was not in dispute that Ngurampaa was such a corporation. That provision also authorised the ILC to make grants of money to, or guarantee loans of, such corporations. Significantly, s 191D(2) and (3) expressly authorised the ILC to do either of those things – grant money or guarantee loans – on “terms and conditions”. There is no such express authorisation in relation to imposing terms and conditions on grants of land. Section 191E authorised the ILC to undertake certain “land management functions”, including granting money, loaning money, or guaranteeing loans in various ways. The ILC was expressly authorised to impose terms and conditions relation to each of those activities.

46. Section 191SA(1), just quoted, referred to the subsections which authorised the imposition of such terms and conditions.

47. The fact that the statutory scheme carefully deals with the power to impose terms and conditions, and does not expressly authorise such conditions being imposed on grants of land pursuant to s 191D(1)(a), militates against a conclusion that the ILC was authorised to impose the conditions that it did relating to the right to reclaim the land in the event of the company being wound up. That being said, this is a type of expressio unius argument, and such arguments are to be applied with care: Houssein v Under Secretary of Industrial Relations & Technology (NSW) (1982) 148 CLR 88 at 94; [1982] HCA 2.

48. The appellants also argue that to impose such conditions is not consistent with the “spirit and purpose” of the Act, which involved seeking partially to redress the dispossession of Indigenous people, including by granting them land. In effect, the appellants argued that for such grants of land to fulfill the purpose of the Act they had to leave the owners free to deal with the land as they saw fit. The ILC’s objects were set out in s 191B of the ATSIC Act:

The Indigenous Land Corporation is established:

(a)  to assist Aboriginal persons and Torres Strait Islanders to acquire land; and

(b)  to assist Aboriginal persons and Torres Strait Islanders to manage indigenous‑held land;

so as to provide economic, environmental, social or cultural benefits for Aboriginal persons and Torres Strait Islanders.

49. These purposes echo the broader purposes of the ATSIC Act set out in s 3:

The objects of this Act are, in recognition of the past dispossession and dispersal of the Aboriginal and Torres Strait Islander peoples and their present disadvantaged position in Australian society:

…

(b) to promote the development of self‑management and self‑sufficiency among Aboriginal persons and Torres Strait Islanders;

(c) to further the economic, social and cultural development of Aboriginal persons and Torres Strait Islanders;

…

50. A question also arises as to how the impugned conditions interact with legal principles relating to insolvency. Such a point was made by the solicitor acting for the liquidator of Ngurampaa, who was reported to have put the following to the ILC (as recorded in its Property Re-acquisition Report):

He considers that a Court would have difficulty with the ILC’s view that it transferred the properties to the Company, which then allowed it to trade and incur debts (presumably with creditors comfortable they would get paid given the existence of the properties); yet, when those debts are unpaid, ILC is free to take back the properties and leave creditors with nothing.

51. In response to these arguments, the respondent pointed to s 191G(1), which grants the ILC/ILSC “power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions”, along with s 191G(2)(a), which grants a specific power “to enter into contracts and agreements”. These powers are granted to facilitate exercise of the body’s functions, as granted in ss 191C-191E, and thus do not necessarily answer the point made that those functions expressly extend to imposing certain types of terms and conditions but do not expressly address doing so for grants of land. In correspondence with the liquidator’s solicitor in November 2015 the ILC’s solicitor suggested that the grants of land to Ngurampaa took the form of a “determinable fee simple”, citing, by way of explanation of the notion, Cram Foundation v Corbett-Jones [2006] NSWSC 495 at [56]. So understood, the question might become whether or not the ILC was authorised to make such a limited grant of land pursuant to s 191D(1)(a).

52. These arguments were not addressed by the primary judge, presumably because his Honour did not understand them to have been raised (his Honour addressed some other statutory arguments at [171]-[175] and [212]-[217]). Given the issue of indefeasibility (addressed below), it is not necessary to resolve them in this appeal, and it is undesirable to do so given both the limited argument that this Court had on the topic and the potential ramifications for other land grants the ILC/ILSC may have made.

53. A large question also arises as to whether these are complaints that the appellants are entitled to raise. They were not themselves party to the Deeds; only Ngurampaa and the ILC were. Ngurampaa has been deregistered and is not a party to this litigation. The appellants were not even directors of the Ngurampaa at the time the Deeds were entered, although they were directors when it went into liquidation. Any complaints about the validity of parts of the Deeds is, prima facie, one for the parties to those agreements to raise. Moreover, even if the arguments did have merit then a question would arise about the extent to which any offending parts of the Deeds could be severed. Acceptance of the arguments would not necessarily mean that the grants of land were invalid. Even if they were, a real question would then arise as to why the land would not then revert to the ILSC in any event (subject to considerations of indefeasibility). As counsel for the respondent put it, there is an element of approbating and reprobating in the appellants’ arguments in both attacking the grants of land by the ILC but then seeking to keep the land for themselves. However, it is also not necessary to resolve these matters.

54. That is so because following the execution of the deed of surrender, the ILSC is now the registered owner of the two stations. As such it has indefeasible title, subject to any exceptions to indefeasibility being established. The primary judge understood the appellants to be relying on the fraud exception, but found no fraud made out (at [176]-[211]). To some extent these issues overlap with the unconscionability arguments of the appellants, which are considered further below. Suffice it to say here that even if the ILC/ILSC had misunderstood the extent of its statutory powers that would not, without more, amount to the sort of fraud required in order to overcome indefeasibility. Leaving aside complaints about the powers of the respondent, and about unconscionability, the appellants have not sought to make out any fraud by the respondent in the relevant sense in this appeal.

55. In that context, the arguments made about the validity of the conditions cannot aid the appellants to avoid the respondent’s claim for possession of the properties.

Who owned the land

56. Grounds 1-4 of the notice of appeal raised issues about ownership of the properties prior to the re-acquisition by the respondent. The substance of these grounds, based upon the arguments presented to this Court, seemed to be that on the respondent’s position Ngurampaa held the lands on trust for the ILC (as noted above), and yet the legislation did not authorise the creation of such a trust.

57. In the Court below there was some argument addressed to the following assertion by the ILC’s solicitor in correspondence with the liquidator’s solicitor (just after the letter asserted that the interest granted to Ngurampaa had been a determinable fee simple):

The fact that the Company continues to hold the legal title (as registered proprietor) is beside the point. On 20 July 2015 the ILC became the beneficial owner of the Lands, with the Company holding the bare legal title on trust for the ILC. That bare legal title has no value and, in any event, may only be dealt with consistently with the trust impressed upon it.

58. The ILC’s solicitor was relying on the terms of the Deeds relating to Ngurampaa not being wound up. The reference to 20 July 2015 was to the day on which the Supreme Court ordered that Ngurampaa be wound up.

59. In this Court Mr Anderson submitted that the ILC was “permitted to hold [property on] trust, but not permitted to establish a trust”. He referred to the fact that under s 191H(2)(i) of the ATSIC/ATSI Acts, the respondent was granted a specific power “to act as trustee of money and other property vested in it on trust”. Under s 191H(3), any money or property held by the respondent on trust “must be dealt with in accordance with the powers and duties of the [the respondent] as trustee”.

58. In part the appellants seemed to be submitting that the effect of the respondent’s position was that the granted lands had been held on a “bare legal trust” for the ILC from the beginning, when the land was granted. This understanding is illustrated by some arguments on adverse possession, as addressed immediately below. Yet that was not the position asserted by the ILC, as shown by the portion of the letter just quoted. It claimed that the trust arose as soon as the winding up order was made.

59. The respondent was correct that no trust arose prior to the winding up order (and assuming here that all conditions imposed in the Deeds were valid). At highest, the Deed purported to create a charge over the property in its favour.

60. Ground 2 of the notice of appeal asserts that the primary judge erred “by ignoring that the Senior Deputy Registrar Hedges concurred with Ngurampaa’s counsel that the lands were not assets of Ngurampaa Ltd”. His Honour addressed the point as follows:

[197] This claim by the defendants is partly based on a statement made by Senior Deputy Registrar Hedge on 20 July 2015 in the context of the Ngurampaa winding up proceedings. Reliance is also placed on statements made in correspondence by a lawyer for the ILC.

[198] A copy of the transcript of the hearing conducted by Senior Deputy Registrar Hedge on 20 July 2015 was in evidence. The winding up application of Ngurampaa was filed by the Deputy Commissioner of Taxation. Both parties were represented by counsel. The Senior Deputy Registrar described some paragraphs of an affidavit by Ms Sapotnik-Eckford in those proceedings as “a bit confusing or inconsistent”. When the Senior Deputy Registrar asked who owned the Mogila land, Ngurampaa’s counsel initially denied that it was owned by Ngurampaa. In response the Senior Deputy Registrar is recorded in the transcript as asking “the land is not any asset of the company itself?”, to which Ngurampaa’s counsel responded: “That is so yes”. Counsel for Ngurampaa then asked for time to obtain clearer instructions, after which he told the Senior Deputy Registrar that the land was owned by Ngurampaa.

[197] Ultimately, orders were made for Ngurampaa to be wound up. Mr Morgan Chubb was appointed liquidator.

[198] None of these matters supports Mr Anderson’s claim that the ILSC’s actions were in contempt of orders made by Senior Deputy Registrar Hedge on 20 July 2015. No order was made to the effect that the lands were not the assets of Ngurampaa.

63. Prior to the winding up order being made on 20 July 2015 Ngurampaa did own the two properties, both legally and beneficially. The respondent claimed that under the Deeds it had an interest in the lands, which it sought to protect by registration of its caveats. There can be interests in land well short of beneficial ownership. After the order was made and in light of the ILC’s assertion of its claimed rights under the Deeds – after the exchange described in the above extract from the judgment – there may be room for argument as to who owned the beneficial interest in the lands. But that is not the point sought to be made by the appellants. No error is apparent in the way that his Honour addressed this issue.

64. More broadly, and in any event, the appellants’ arguments here seem to come back to the assertion that the ILC was not authorised under the legislation to impose the conditions that it did in the Deeds. For the reasons given above, such arguments do not avail the appellants in this case. The respondent is the registered proprietor with indefeasible title. Again, it is neither necessary nor appropriate to seek to resolve points about the power of the respondent to create or deal with trusts.

Adverse Possession

65. Grounds 11, 15 and 16 of the Notice of Appeal criticised the primary judge’s rejection of the adverse possession arguments in the trial below. In written submissions it was said that:

Griffiths J erred in both fact and law by not addressing the Cross Claim dated 1 April 2021 as a claim for “Adverse Possession” thereby ignoring the REAL PROPERTY ACT 1900 - SECT 45D. and in accordance with LIMITATION ACT 1969 - SECT 27(2) and s.13 of the Limitations of Actions Act 1974 (Qld) and does not make any ruling on these statutes.

66. In oral submissions, Mr Anderson appeared to indicate that the “adverse possession” argument was not meant in the ordinary legal sense but rather was used in a broader way tied to the assertion of a general equitable title in the traditional owners, which topic is addressed below.

67. However, the appellants’ position was not clear in this regard. Mr Anderson also said this in submissions:

Because you see, if the ILC are correct and the Court finds that the ILC were in fact the owners under those deeds of grant, and that the implied right of that property to be theirs, and we're holding a bare legal trust, well then Griffiths AJ's decision that we were there with the permission of Ngurampaa Limited is incorrect because Ngurampaa, as argued by the Indigenous Land and Sea Corporation, did not own the land. They were holding it in bare legal trust for the ILC. The ILC knew we were present on that land at all times because we corresponded with them. As a result from 2002 to 2015 when the company went into liquidation we were in adverse possession.

68. That complaint is not well-founded. As just explained, there is no basis for suggesting that the lands were held on trust for the respondent, at least until after the winding up order was made. It was Ngurampaa which held both legal and beneficial title until then. Even after that point Ngurampaa still, at the least, held legal title until the lands were surrendered by the liquidator to the respondent in April 2019. Ngurampaa was thus in control of the lands at all times up until that surrender. There is no evidence that Ngurampaa did not consent to the appellants being on the land, and they did not suggest to the contrary. Indeed, as counsel for the respondent noted, the appellants constituted a majority of the board of Ngurampaa from 2009 onwards, so consent of the corporation for their own occupation may be presumed. Whilst the appellants’ permission to occupy the lands has subsequently been withdrawn by the respondent, that occurred well less than 12 years ago (the relevant limitation period) and in any event has been the subject of dispute in these proceedings which were filed in December 2020.

69. It is also incorrect to assert that the primary judge did not address the adverse possession issue – his Honour did so at [291]-[294] of his judgment, under the heading “Mr Anderson’s claim based on adverse possession”.

70. In written submissions the appellants complained that the primary judge had not addressed the Court’s reasoning in the recent adverse possession case of Hardy v Sidoti [2020] NSWSC 1057. However, the appellants did not explain how that case, or the subsequent appeal in Sidoti v Hardy [2021] NSWCA 105, lent any support to the appellants’ argument, nor how it should have been dealt with.

71. No error has been established in the way the primary judge dealt with adverse possession insofar as that notion was employed in established legal terms.

Claimed unconscionable dealings by the respondent

72. Grounds 5-7 of the notice of appeal assert that the primary judge erred in his treatment of complaints about unconscionable conduct in relation to dealings between the liquidator and the respondent relating to the surrender of the properties. Although not directly raised by the notice of appeal, the appellants also complained about the failure of the primary judge to find unconscionable conduct in relation to the ILC lodging caveats with respect to the two properties, along with the ILC’s conduct in inducing Ngurampaa to agree in the Deeds to the ILC having such a right, and perhaps also in initially leasing the lands to MMS (see above at [13]-[14]).

73. The primary judge addressed these matters briefly at [191]-[196]. The allegations were not clearly pleaded by the appellants. His Honour noted that they were “not expressed as claims of actual fraud on the part of” the respondent (at [191]). He concluded as follows:

[196] In circumstances where it is incumbent upon the defendants to particularise their allegations of fraud, I do not consider it necessary to determine their allegations of “unconscionable conduct” which fall short of alleging fraud. In taking this course I do not intend to suggest that there may have been any substance in the claims of unconscionable conduct.

74. His Honour’s focus on fraud was because of the respondent having registered, indefeasible title. In this Court the appellants referred to having a claim for unconscionable conduct under (it seems) ss 20 and/or 21 of the Australian Consumer Law enacted by the Competition and Consumer Act 2010 (Cth), and further made reference to the respondent having acted in bad faith and in breach of fiduciary duty. A further argument was made that the caveats were non est factum. Leaving aside brief and general references to unconscionability, none of these claims was articulated in the appellants’ defence, in their amended defence, or in Mr Anderson’s cross-claim.

75. These claims needed to have been clearly pleaded in order to have been addressed by the Court below and this Court. As counsel for the respondent said of one variant, “if we'd known that it was clearly put against us that we'd acted unconscionably because we'd done X, Y and Z in relation to a particular application for finance or to lift a caveat to allow finance, then that's something that we could have addressed squarely but we never did because the claim was never put in that way”.

76. Moreover, on the face of it there are other fundamental problems with these claims, of much the same kind as the potential problems raised above in relation to the arguments about the powers of the respondent. If the respondent acted unconscionably in inducing Ngurampaa to enter the Deeds on the terms set out in those documents, such that the validity or enforceability of those Deeds are open to question, then prima facie those are claims that were for Ngurampaa to make. This point was raised with the appellants near the commencement of oral address but never really grappled with. They submitted that Ngurampaa “was a landholding body for and on behalf of the traditional owners”. There is no doubt that membership of the corporation was limited to descendants of the Yuwaalaraay/Yuwaaliyaay Traditional Owners of Mogila and Currawillinghi, as noted above at [15]. That does not alter the fact that Ngurampaa was a distinct legal person, and it was that corporation which was party to the Deeds.

77. Furthermore, if Ngurampaa had been a party and sought to raise arguments about the terms of the Deeds, or the imposition of the caveats, then it is likely that a limitation defence would have been raised by the respondent. Moreover, it is important to note that the respondent gifted the two highly valuable properties to Ngurampaa pursuant to the Deeds. It is difficult to see how plausible allegations of unconscionable conduct could be made out in that context. A gift on conditions is still a gift. It was not one that Ngurampaa was obliged to accept.

78. Again, it is not necessary to resolve these arguments relating to whether or not the appellants were in a position to maintain the claims of unconscionability, or the significance of the land having been gifted. The claims were not properly pleaded. And there are further, specific, problems with the various arguments of the appellants on this front.

79. As regards the right of the respondent to place caveats on the properties, that was, at the least, consistent with the fact that pursuant to s 191S of the ATSIC Act Ngurampaa was not entitled to charge (including mortgage) or dispose of the properties and, pursuant to s 191SA(1), those obligations were “taken to be an interest of the Corporation in the land to which the liability or obligation relates”. The complaints about the caveats seemed in substantial part to be complaints about the statutory scheme.

80. Much of the attack on the content of the Deeds related to whether or not the law firm Lovett & Green provided independent legal advice to Ngurampaa prior to entry into the Deeds, as it claimed to have done, and for which it billed the respondent. No error was shown in the unsurprising rejection of that argument by the primary judge at [179]-[181]. Further, as his Honour noted at [184], “there is not a scintilla of evidence which connects that state of affairs (assuming that it existed, contrary to my finding above) to the ILC”. No attempt was made in this Court to address that point.

81. Insofar as complaint was made that it was unconscionable for the ILC to have granted the properties subject to a lease paying a nominal rental to its subsidiary, MMS, the facts relating to how the arrangement was intended to work are not now clear. But in any event the second appellant’s own evidence undercuts any complaint about this arrangement. She stated that from September 2002 (when the leases ended) until 2010, Ngurampaa “traded successfully, we generated the necessary funds to slowly restock and conducted the much-needed maintenance that had to be done”.

82. Some complaint was made about the condition of the farm equipment that MMS left on the property. But whatever the state of that equipment it was gifted to Ngurampaa, and no plausible basis has been suggested for why that gift was in some way unconscionable.

83. In this Court Ms Sapotnik-Eckford put forward further arguments which were directed towards unconscionability stemming from the imposition of the caveats, submitting that they prevented Ngurampaa from obtaining natural disaster relief and raising loans. She noted that the liquidator’s report to creditors said that it was likely that the insolvency of the company was contributed to by five years of extreme weather conditions affecting profitability and an inability to secure finance to pay creditors. The liquidator also said in his report that the caveats “made it impossible for the Company to either raise finance using the land as security or cash from the sale of a parcel of land which led eventually to the Company’s demise”. The latter point is really an observation about the effect of the statutory scheme. The respondent cannot be held liable for extreme weather events.

84. Whether or not Ngurampaa was established in a way that was wise, or with adequate working capital, are not matters for this Court. Even if the company was likely to run into problems being self-sustaining – and I am not suggesting that was the case – that would not of itself establish unconscionable conduct by the ILC.

85. Another set of arguments was based on the transfer of lands between the respondent and the liquidator. At one level a complaint about the respondent obtaining property which it itself described as conservatively valued at over $7 million, for consideration in the order of $400,000, might be seen to raise a question about unconscionability. But it occurred pursuant to the actions of the liquidator acting with the benefit of independent legal advice. And the property was being returned to the governmental entity which had gifted it to Ngurampaa in the first place.

86. In sum, no error has been shown in the rejection by the primary judge of the appellants’ arguments on unconscionability.

The validity of Pt 4A of the ATSI Act

87. The appellants made a constitutional argument relating to the scope of the Commonwealth’s legislative power under s 51(xxvi) of the Commonwealth Constitution to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws”. It was not clear precisely what legislative provisions the appellants asserted were invalid, but they appeared to include most notably Pt 4A of the ATSIC/ATSI Acts, relating to the creation and empowerment of the ILC/ILSC. The notice they issued under s 78B of the Judiciary Act 1903 (Cth) also contained an assertion that “[t]he 1998 amendments to the Native Title Act 1993 (Cth) … constitute an abuse of constitutional powers under section 51(xxvi)”. The constitutional issues were not directly raised in any ground of appeal, but the respondent did not object to them being raised and addressed, nor did it raise an issue as to the appellants’ standing to make these points.

88. The failure by the appellants to focus clearly on what provisions they contended to be invalid, and identifying how those provisions are relevant to the matters in issue, is unsatisfactory. It is not apparent that any provisions of the Native Title Act are material to this appeal. Moreover, the general validity of an early iteration of that Act was considered by the High Court and upheld, with the notable exception of one section, in Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 459-462; [1995] HCA 47. However, obviously enough some provisions in Pt 4A of the ATSIC/ATSI Acts are relevant to this case. Given the nature of the argument put by the appellants, it suffices here to treat the challenge as one going to the entirety of Pt 4A.

89. The appellants’ argument is captured by the following submission made by Mr Anderson during oral address:

I know this matter has been advocated on a number of occasions in other Courts and in the High Court. However, what they didn't ask was the question of whether Aborigines are a race by definition. Most of those Court cases that I've read clearly indicate that they keep arguing about descent. So everything is about descent, not about the question of the term "race". So I submit to this Court that my arguments on the question of race is relevant simply because of the fact that the Indigenous Land and Sea Corporation is established by the use of that section of the Australian Constitution.

90. The appellants invited the Court to “determine if Aboriginal and Torres Strait Islanders peoples are a distinct race of people as distinct from all other ethnic human groups from the various parts of the globe” on the basis that, if they were not, the Commonwealth did not have power to legislate for the establishment of the ILC/ILSC.

91. Defining the concept of race, and identifying racial groups, are no doubt contestable issues as a matter of social science, philosophy and science. Nevertheless, the understanding of the concept of “the people of any race” as employed in s 51(xxvi) of the Constitution is a legal question. And it is a question which relevantly has received a clear answer in Australia.

92. In Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21, Deane J said that the races power is “a general power to pass laws discriminating against or benefiting the people of any race” (at 273) and observed the following of the term “people of any race” (at 273-274, citation omitted):

Plainly, the words have a wide and non-technical meaning. The phrase is, in my view, apposite to refer to all Australian Aboriginals collectively. Any doubt, which might otherwise exist in that regard, is removed by reference to the wording of par (xxvi) in its original form. The phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals.

93. This passage was approved by the High Court in the Native Title Act Case (at 461-462 and 495).

94. Until 1967 the power in s 51(xxvi) contained the words “other than the aboriginal race in any State”. The very purpose of the constitutional change in 1967 was to enable the Commonwealth to make special laws with respect to Australia’s Indigenous peoples. As Prime Minister Holt said when introducing the referendum proposal (House of Representatives, Hansard, 1 March 1967, p 263):

If the words “other than the Aboriginal race in any State” were deleted from section 51(xxvi), the result would be that the Commonwealth Parliament would have vested in it a concurrent legislative power with respect to Aboriginals as such, they being the people of a race, provided the Parliament deemed it necessary to make special laws for them.

95. For legal purposes there is no doubt, in light of current case law binding upon this Court, that s 51(xxvi) authorises the federal Parliament to make special laws that it deems necessary with respect to Aboriginal Australians.

96. The appellants argued that the position had shifted in light of the High Court’s decision in Love v Commonwealth (2020) 270 CLR 152; [2020] HCA 3. It was said that the above case law “goes against what Thoms & Love case says, ‘We are neither aliens nor citizens’”. There is nothing in that decision which undertakes such a shift. The application of the race power to Aboriginal peoples was not directly at issue in the case. No member of the Court expressed disapproval of what had been said in the Native Title Act Case in relation to the scope of that power. Indeed, three members of the majority made points inconsistent with the appellants’ argument. Justice Nettle said of s 51(xxvi) that “as a result of the 1967 amendment, [it] extends to peoples of the Aboriginal race” (at [256]). Similarly, Gordon J said that that “the power in s 51(xxvi) expressly contemplates special laws for particular races”, and that power “has been exercised in ways intended to benefit Aboriginal and other Indigenous people”, citing the Native Title Act Case in support of the point (at [370]). Justice Edelman’s reasoning assumed that the race power applied to Aboriginal peoples (at [457]).

97. There is thus no reason to doubt the validity of Pt 4A of the ATSIC/ATSI Acts based upon the argument presented by the appellants. Insofar as that argument was directed to any provisions of the Native Title Act, the same would be true.

The asserted distinct form of traditional Indigenous title

98. In the proceedings below the primary judge both addressed arguments his Honour perceived Mr Anderson to be making in relation to native title, along with an argument about some different form of traditional Indigenous title. These points were seen as arising particularly based upon Mr Anderson’s cross-claim.

99. In this Court, Mr Anderson sought to make clear that he had not made, and was not making, any claim based upon native title. He was critical of an aspect of what his Honour said about native title relating to extinguishment, and raised that in ground 14 of the notice of appeal. However, Mr Anderson accepted in oral submissions that his position was that it had not been necessary for his Honour to have addressed the point given that in fact he had not raised native title. That being so, it is unnecessary to address that ground of appeal.

100. Mr Anderson maintained that the primary judge erred in failing to recognise the different form of title he asserted. The point was raised in various ways by grounds 11-13 and 15-18 of the notice of appeal, including by referring to “adverse possession”. As noted above, the use of that term seemed mainly to be related to the appellants’ invocation of this different form of title, in the sense that it was said that the traditional owners had legal rights which pre-existed and took precedence over the ownership of the respondent in relation to the two properties.

101. His Honour identified difficulties in grappling with the argument put below by Mr Anderson, including that the statement of cross-claim was not easily understood; that it referred to “claimants”, identified as being all bloodline descendants of a certain person, without identifying who those bloodline descendants were; and that it thus left unclear who constituted the group of persons having the claimed rights and interests in the land (see at [257]-[261]).

102. His Honour said this of the argument:

[260] … [Mr Anderson’s claim is] that the Traditional Owners of the lands have equitable rights which pre-date those of the ILSC and should prevail. These equitable rights are said to arise under “the ancient Celestial Laws and customs as the original possessors of the said lands and waters”. This appears to involve a claim to the effect that native title rights and interests affect the lands. Mr Anderson does not contend that this claim arises under the Native Title Act. It appears to be a claim based upon the common law, with particular reference to the principles established in Mabo (No 2). Mr Anderson also drew the Court’s attention to some earlier authorities (including the decision of Willis J in R v Bonjon, Supreme Court of New South Wales, 16 September 1841). It is unnecessary to address those cases because Mabo (No 2) contains an authoritative description of native title rights and interests recognised by the common law.

103. Mr Anderson described the type of right asserted as “more than a common law claim, it is an assertion of a common law legal right in equity under Euahlayi Celestial law as against ILSC’s interests”. He was critical of the notion of native title, saying that “native title circumvents our common law rights, because those early judgments said that Aboriginal people were the sovereigns of the soil”. He was similarly critical of the Native Title Act.

104. Mr Anderson sought to emphasise “the need to examine the nature of pre-existing common law right at the time of contact” between European settlers and the local peoples. The early judgments he referred to included Attorney-General (NSW) v Brown (1847) 1 Legge 312 and R v Bonjon (Supreme Court of New South Wales, 16 September 1841). Yet the former was discussed in the judgments in Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 (Mabo (No 2)), eg at 26-31, and the latter was cited to the Court in argument in that case by counsel for the plaintiffs (at 9). Mr Anderson also cited a range of other sources, including passages in Serjeant Stephen’s New Commentaries on the Laws of England relating to the nature of property rights.

105. Mr Anderson described the type of ownership asserted as follows:

The Euahlayi Celestial Laws vest land in the Peoples, a very different legal system to that of the English. …

Ownership is vested in the Most Senior Ceremonial Elders who hold the most sacred knowledge. However, ‘ownership’ is vastly different from the western world view. ‘Ownership’ is an absolute title held by the Most Senior Ceremonial Elders on ‘Trust’ for future generations. …

The issue of Euahlayi divinity is dependent upon continuing connection to country.

106. The core difficulty with these arguments is that any such rights of the kind asserted are ones that, to the extent that they are recognised within the Australian legal system, are recognised as native title rights. The primary judge correctly acknowledged that to be so.

107. In Mabo (No 2) Brennan J said that the term native title “conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants” (at 57). His Honour explained that native title “to particular land …, its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connection with the land” (at 70).

108. Subsequently to the enactment of the Native Title Act, it is “necessary … to begin consideration of a claim for determination of native title by examination and consideration of the provisions of” that Act: Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58 at [32] (citation omitted). The Act defines native title in the following way in s 223(1):

The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

109. Mr Anderson asserts a right of ownership under traditional laws and customs of the Indigenous inhabitants of the lands in question, who are said to have a continuing connection to country, and where that right is said to be recognised by the common law of Australia. The type of ownership asserted falls within the notion of native title as recognised in Mabo (No 2) and as subsequently encapsulated in the Native Title Act. Yet Mr Anderson has eschewed any suggestion that he is making a native title claim in this case. Indeed, as noted above (at [31]), native title has in fact been recognised over Currawillinghi.

110. Mr Anderson’s assertion that the common law of Australia recognises some type of traditional Indigenous title distinct from native title is not one that it is open to this Court to accept. These grounds of appeal are thus rejected.

111. For completeness it should be noted that Mr Anderson raised issues of sovereignty in the Court below, challenging the Court’s entitlement to rule on the issues raised, despite himself raising such issues by way of cross-claim. The challenge was rejected by the primary judge based on clear High Court authority (at [27]-[34]). The point was not maintained in this Court. Mr Anderson said at the beginning of his oral submissions that “I … acknowledge that you have an obligation to deal with these issues under western legal system”, which I understood to mean that he accepted that this Court is required to apply the laws of Australia, founded upon the Constitution.

Conclusion

112. No error has been established in the decision of the primary judge. The appeal should thus be dismissed. There is no reason why costs should not follow the event.

113. The ILSC filed a cross-appeal which sought orders for injunctions. Those orders were only sought if this Court found that the primary judge was in error in giving judgment for possession of Mogila. As this Court has not done so there is no occasion to consider the cross-appeal. For completeness it should be dismissed.

114. The orders of the Court should be as follows:

1. Appeal and cross-appeal dismissed.

2. The appellants are to pay the respondent’s costs of the proceedings in this Court.

115. STERN JA: I agree with Kirk JA.

116. SIMPSON AJA: I agree with Kirk JA.

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Decision last updated: 07 February 2024