Brown-Phillips v Humphries

[2001] FCA 536

FEDERAL COURT OF AUSTRALIA

Brown-Phillips v Humphries [2001] FCA 536

ROSLYN SAL BROWN-PHILLIPS v GARY HUMPHRIES
A 20 of 2001

STONE J
30 APRIL 2001
SYDNEY (VIA VIDEO LINK TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 20 OF 2001

BETWEEN:	ROSLYN SAL BROWN-PHILLIPS APPLICANT
AND:	GARY HUMPHRIES RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	30 APRIL 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   the application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY REGISTRY	A 20 OF 2001

BETWEEN:	ROSLYN SAL BROWN-PHILLIPS APPLICANT
AND:	GARY HUMPHRIES RESPONDENT

JUDGE:	STONE J
DATE:	30 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, an elder of the Ngunawal people, seeks an interim injunction preventing the respondent, the Chief Minister for the Australian Capital Territory (“ACT”), from signing an agreement, which she says would extinguish all native title rights in the ACT. The applicant has affirmed an affidavit stating that, at about 7.30 pm last night, she became aware that such an agreement would be signed this morning. I have been provided with a copy of the agreement, in which the Australian Capital Territory offers to grant a “Namadgi Special Aboriginal Lease”, a term defined in the agreement, over Namadgi National Park.

2. This is an unfortunate situation. The combination of an inaccurate and ineptly phrased press report and, with respect to the respondent, the use of the word “lease” in the agreement to bear a meaning quite different from the ordinary legal meaning of the word, has created confusion and concern in the applicant that ought not to have been raised.  It is not in the least surprising that the applicant has come here today on an urgent basis seeking an injunction to restrain the signing of the agreement.

3. This remedy sought by the applicant is unnecessary and, as events have turned out, futile. It would be futile to grant the injunction sought because, I understand, the agreement has already been signed.  Ms Gillespie, counsel for the applicant has, in the alternative, asked me to make certain declarations or other orders which I do not feel I am in the position to make for a number of reasons including that they are unnecessary.

4. Having reviewed the agreement it is my opinion that it will not adversely affect any native title rights that the applicant may have.  It does not purport to do so and, even if it did, it could not do so unless it had been negotiated, prepared and executed in accordance with the provisions of the Native Title Act 1993 (Cth) (“Act”). This follows from the provisions of s 24OA of the Act, which provides that future acts are invalid to the extent that they affect native title unless the procedures set out in the Act are followed.

5. In addition I also agree with the submission made by Mr Jarvis, who appeared for the respondent, namely that the phrase “Namadgi Special Aboriginal Lease” used in the agreement does not, despite the use of the word “lease”, purport to create a lease of the kind that the High Court noted could destroy native title rights in Wik Peoples v Queensland (1996) 187 CLR 1. It is neither a lease in the common law sense nor a proprietary right.

6. Even apart from the issue of futility, in order for me to grant an injunction, I would need to be satisfied that there is a serious case to be tried.  The applicant has not been able to point to anything in the agreement that would affect her legal entitlements despite her real concern and anxiety. .

7. The application is dismissed..

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             7 May 2001

Counsel for the Applicant:	Ms R Gillespie
Solicitor for the Respondent:	Mr Jarvis
Date of Hearing:	30 April 2001
Date of Judgment:	30 April 2001