Brown v South Australia

Case [2010] FCA 875


FEDERAL COURT OF AUSTRALIA

Brown v The State of South Australia [2010] FCA 875

Citation: Brown v The State of South Australia [2010] FCA 875
Parties: DAVID BROWN, IAN CROMBIE, HERBERT LENNON AND JEAN WOOD ON BEHALF OF THE ANTAKIRINJA MATU-YANKUNYTJATJARA NATIVE TITLE CLAIM v THE STATE OF SOUTH AUSTRALIA AND OTHERS
File number: SAD 6007 of 1998
Judge: MANSFIELD J
Date of judgment: 13 August 2010
Catchwords:  NATIVE TITLE – whether the Court has power when making a determination of native title rights and interests, by consent or otherwise, to include a term requiring a respondent’s proposed orders about the application of compensation payments by a prescribed body corporate (sustainable benefits clause) – whether respondent party may require agreement on a sustainable benefits clause as a condition of it otherwise agreeing to terms of proposed consent determination – whether respondent party may withhold consent to determination where there is no genuine or bona fide dispute about existence of native title rights and interests
Legislation:

Native Title Act 1993 (Cth) Pt 2 Div 3, ss 56, 61, 86G, 87, 223 and 225
Mining Act 1971 (SA) pt 9B
Native Title Amendment Act 2009 (Cth)
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

Cases cited:

Adnyamathanha People v State of South Australia [2003] FCA 211 cited
Thomas v Kokatha Peoples Community Inc (SA Supreme Court, Judge Lunn, unreported, 3 December 2007) cited
Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1 cited
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) (2007) 161 FCR 513 cited
Australian Federation of Construction Contractors v Australian Building Construction Employees’ and Builders Labourers’ Federation (1984) 73 FLR 61 cited
Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 cited
Pacific Brands Sport and Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 cited
Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 cited
Burger King Corporation v Hungry Jack’s Pty Ltd [2001] NSWCA 187 cited
Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 cited
Taku River Tlingit First Nation v British Columbia (Project Assessment Director) (2004) 245 DLR (4th) 193 cited
Walley v Western Australia (1996) 67 FCR 366 cited

Brownley v Western Australia (No 1) (1999) 95 FCR 152 cited

Date of hearing: 30 April 2010
Date of last submissions: 29 April 2010
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 41
Counsel for the Applicant: T Wooley
Solicitor for the Applicant: South Australia Native Title Services
Counsel for the State of South Australia: S McCaul
Solicitor for the State of South Australia: Crown Solicitors Office
Counsel for the Commonwealth: R Webb QC
Solicitor for the Commonwealth: Australian Government Solicitor
Counsel for the Mining Respondents: G Stathopoulous
Solicitor for the Mining Respondents: McDonald Steed McGrath

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 6007 of 1998

BETWEEN:

DAVID…

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Brown v South Australia [2010] FCA 875
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[2010] FCA 875
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CaseChat Overview and Summary

In the case of Brown v South Australia, the applicants sought to determine native title rights over a specific area of land, with a request for the inclusion of a sustainable benefits term in the determination. The applicants argued that such a term would be beneficial for the native title holders. The respondents, including the State of South Australia and the Commonwealth of Australia, opposed the inclusion of this term. The Federal Court was tasked with deciding whether the Court had the power to include a sustainable benefits term in a determination of native title rights and interests, either by consent or after a hearing, when such a term was not agreed upon by the parties.

The legal issues before the Court were multifaceted. Firstly, the Court had to determine if it had the power to include a sustainable benefits term in a determination of native title rights and interests, regardless of whether the parties agreed on such a term. Secondly, the Court needed to consider whether it was appropriate to include a sustainable benefits term in orders made by consent under sections 86G or 87 of the Native Title Act 1993 (Cth). Thirdly, the Court had to assess whether it would be appropriate to include such a term in the orders, taking into account other provisions of the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). Lastly, the Court had to decide whether a respondent could require agreement on a sustainable benefits clause as a condition of agreeing to the terms of a proposed consent determination of native title rights and interests.

The Court concluded that it did not have the power to include a sustainable benefits term in a determination of native title rights and interests, whether by consent or after a hearing, if such a term was not agreed upon by the parties. The Court found that section 94A of the Native Title Act did not provide a foundation for including a sustainable benefits term in the determination, as it only required the determination to set out details of specific matters as outlined in section 225 of the Act. The Court also determined that even if the parties agreed upon a sustainable benefits term, it would not be appropriate for the Court to make such an order, given the other provisions of the Act and the Regulations. The Court further held that a respondent could not require agreement on a sustainable benefits clause as a condition of agreeing to the terms of a proposed consent determination of native title rights and interests.

The final orders of the Court were that the applicants' application for the inclusion of a sustainable benefits term in the determination of native title rights and interests was dismissed. The Court emphasised that the determination of native title rights and interests should focus on the specific matters outlined in section 225 of the Native Title Act, without the inclusion of additional terms not agreed upon by the parties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicants oppose the making of such an order. So, too, does the State of South Australia, and the Commonwealth of Australia, albeit for slightly different reasons. I will refer to their respective contentions in the following section of these reasons.CONSIDERATION In my judgment, there are four steps to be considered in addressing the particular question. They are:1.whether the Court has power when making a determination of native title rights and interests, whether by consent or after a hearing, to include a sustainable benefits term as a term of the determination if such a term is not agreed by the parties;2.whether the Court has power, in the event of agreement between the parties to include a sustainable benefits term in orders to be made by the Court by consent under ss 86G or 87 of the NT Act, to include as one of the agreed terms the sustainable benefits term;3.whether, even in the event of the parties agreeing upon a sustainable benefits term, it would be appropriate for the Court to make such an order having regard to other provisions of the NT Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the Regulations). The Regulations, by reference, enliven in relation to a prescribed body corporate the provisions of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act); and4.whether a respondent party in the position of the Mining Respondents may require agreement on a sustainable benefits clause as a condition of it otherwise agreeing to the terms of a proposed consent determination of native title rights and interests, that is whether it may withhold its consent in circumstances where there is no genuine or bona fide dispute about the terms of the proposed consent determination. As to the first issue, in my view the position is clear. The application is for the determination of native title rights over the claim area. It is an application where, on the information before the Court, the issue of connection (an expression commonly used to describe the matters the native title claim group must show to establish that the common law recognises them as the holders of native title rights and interests as defined in s 223 of the NT Act) is likely to be resolved by consent. There is in the application no claim for compensation as a result of any partial or total extinguishment of any of the native title rights and interests which the claim group might otherwise enjoy. The consent determination will, no doubt record the manner in which and the extent to which those rights have been extinguished. In due course, that may lead to an application for compensation under ss 50(2) and 61 of the NT Act or to an agreement on the question of compensation. In those circumstances, I do not accept that s 94A of the NT Act provides a foundation for the Court having power to include a sustainable benefits term in the determination. Section 94A requires a determination of native title to set out details of the matters mentioned in s 225 of the Act. Section 225 provides:A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:(a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and(b)the nature and extent of the native title rights and interests in relation to the determination area; and(c)the nature and extent of any other interests in relation to the determination area; and(d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and(e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.Note:The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.