Commonwealth v Clifton

Case [2007] FCAFC 190

FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Clifton [2007] FCAFC 190

NATIVE TITLE – respondent to an application for a native title determination seeking a determination of native title – reliance placed on s 225 of the Native Title Act 1993 (Cth) – respondent not authorised by native title claim group as required by s61 of the Act – significance of statutory requirement that a determination of native title must be made in accordance with the procedures of the Act – consideration of jurisdictional provisions of Native Title Act 1993 (Cth) – Held: the Federal Court may only make a determination of native title in favour of a person who has made an application under s13 of the Act.

Federal Court of Australia Act 1976 (Cth) s 22
Judiciary Act 1903 (Cth) s 39B(1A)(c)
Native Title Act 1993 (Cth) ss 3, 10, 13, 60, 61, 62, 63,64, 66, 67, 81, 84, 94, 190, 213, 225 251, 253

Native Title Amendment Act 1998 (Cth) Sch 2
Native Title Amendment Bill 1997 (No 2) (Cth)

Federal Court Rules O 5 r 1

Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 cited
Kokatha People v State of South Australia [2007] FCA 1057 affirmed
McKenzie v South Australia (2005) 214 ALR 214 cited
Moses v Western Australia (2007) 160 FCR 148 approved

Western Australia v Ward (2000) 99 FCR 316 discussed

COMMONWEALTH OF AUSTRALIA v DANIEL ERNEST CLIFTON, ROGER JAMES THOMAS, HENRY CROFT, ELLIOTT McNAMARA, BARRY CROFT, LORRAINE DARE, PHOEBE WANGANEEN, HOWARD RICHARDS, JODY JOSEPH MILLER, MARLENE WEETRA-HEIGHT, RAYMOND WEETRA, LAVINIA HERRON, REGINALD DODD, LAURIE STUART, MILLIE WARREN, MARK MCKENZIE, STATE OF SOUTH AUSTRALIA, NINGIL RICHARD CHARLES REID, ABORIGINAL LEGAL RIGHTS MOVEMENT INC, ALEXANDRINA PTY LTD, ANDAMOOKA PROGRESS & OPAL MINERS ASSOCIATION INC, BUCKLEBOO NOMINEES PTY LTD, PATRICIA BUCKNER, ORMAN BUCKNER, COOMBEDOWN RESOURCES NL, TANIA LEE CURLIJA, T DUURSMA, J DUURSMA, ESTA UTILITIES, ANTHONY F FLINT, ROBERT WILLIAM GREENFIELD, DOUGLAS MAXWELL GREENFIELD, KEITH HUTCHINSON GREENFIELD, GUNSON RESOURCES LIMITED, CRAIG DAVID HARRIS, HAVILAH RESOURCES NL, HANS HOLLERRIEDER, PAUL STEPHEN MANNING, COLLEEN MARY MANNING, MINOTAUR OPERATIONS PTY LTD, MINOTAUR RESOURCES LTD, MOULD NOMINEES PTY LTD, MUNICIPAL COUNCIL OF ROXBY DOWNS, NONNING PASTORAL COMPANY PTY LTD, PARTACOONA PAST CO PTY LIMITED ACN 061 587 764, RMG SERVICES PTY LTD, CYNTHIA SAVAGE, ROBERT SAVAGE, SOUTH AUSTRALIAN APIARISTS ASSOCIATION INC, STRAITS EXPLORATION (AUSTRALIA) P/L, TASMAN RESOURCES NL, TECK COMINCO AUSTRALIA PTY LTD, TELSTRA CORPORATION LIMITED, UNALLA PASTORAL CO PTY LTD, UNO PTY LTD, URANIUM ONE AUSTRALIA PTY LTD, BHP BILLITON OLYMPIC DAM CORPORATION PTY LTD, BHP BILLITON NICKEL WEST PTY LTD AND YADLAMALKA PROPRIETORS
SAD 118 OF 2007

BRANSON, SUNDBERG AND DOWSETT JJ
6 DECEMBER 2007
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 118 OF 2007
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

COMMONWEALTH OF AUSTRALIA
Appellant

AND:

DANIEL ERNEST CLIFTON
First Respondent

ROGER JAMES THOMAS
Second Respondent

HENRY CROFT
Third Respondent

ELLIOTT McNAMARA
Fourth Respondent

BARRY CROFT
Fifth Respondent

LORRAINE DARE
Sixth Respondent

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Commonwealth v Clifton [2007] FCAFC 190
Case
[2007] FCAFC 190
Decision Date

CaseChat Overview and Summary

In the case of Commonwealth v Clifton, the primary dispute revolves around the procedural requirements for determining native title claims in Australia. The case involves the Commonwealth, acting as the respondent, and Clifton, among other claimants, who sought a determination of native title over a specific area of land and waters. The legal issues before the court pertained to the statutory requirements set forth in the Native Title Act 1993 (Cth) regarding the authorisation of individuals or groups to make native title claims and the procedures that the court must follow in making determinations of native title.

The central issue was whether the court could make a determination of native title in favor of a group or individual who had not authorised an application for such determination, despite the existence of a valid application made by another group. The court had to consider the interplay between section 61 of the Act, which mandates the authorisation of individuals or groups to make native title claims, and section 94A, which requires the court to detail the nature and extent of native title rights and interests in any determination. The Commonwealth argued that the court should not be precluded from recognising native title rights of non-applicant groups if evidence supported such recognition, while the respondent argued that the statutory framework required adherence to the authorisation provisions.

The court ruled that the statutory procedures require a native title claim group to authorise a person or persons to make an application under section 13(1) of the Act before the court can make a determination of native title in respect of that group. The court held that the procedures set out in the Act must be followed, and a determination of native title could only be made for groups that have properly authorised an application. The court emphasised that the legislative intent was to ensure that native title determinations were made in accordance with the procedures outlined in the Act, which include the authorisation requirement. The court concluded that the statutory framework did not allow for the court to make a determination in favour of a group that had not authorised an application, even if evidence supported the existence of native title rights in that group.

The court's decision underscores the importance of adhering to statutory requirements in native title determinations, ensuring that the processes established by the Native Title Act 1993 (Cth) are followed. The ruling affirms that the court's jurisdiction to make native title determinations is contingent upon the authorisation of individuals or groups as required by the Act, thereby maintaining the integrity of the legislative framework designed to address native title claims.

Orders

Orders of the court

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Background

Background to the litigation

The learned primary judge answered the above question in the negative. For the reasons set out below we accept the correctness of his Honour’s answer.BACKGROUND This background material has been drawn from the reasons for judgment of the primary judge. On 8 September 2005 orders were made under s 67 of the Act that three native title determination applications – the Kokatha Native Title Claim, the Barngala Native Title Claim and the Arabunna Peoples Native Title Claim – be dealt with in the same proceeding to the extent that they covered the same area of land and waters (“the overlap proceeding”). On 19 September 1995 the first Kuyani Native Title Claim was lodged. Mark McKenzie later became the named applicant for this claim. It was amended on no less than six occasions altering the composition of the claim group and the lands the subject of the claim. The claim area overlapped the claim area of the Kokatha Native Title Claim. On 27 January 2005 Finn J ordered that the Kuyani Native Title Claim be struck out. His Honour concluded that there was no arguable basis upon which Mr McKenzie could be said to have satisfied the requirements of s 61(4) and s 62(1)(a)(iv) and (v) relating to his authorisation to bring the claim: McKenzie v South Australia (2005) 214 ALR 214. At an earlier date Mr McKenzie had, by virtue of s 84(3) of the Act, become a respondent party to the Kokatha Native Title Claim. In Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 Mansfield J held that the striking out of the Kuyani Claim did not, of itself, result in Mr McKenzie ceasing to be a party to the Kokatha Claim. His Honour noted that Mr McKenzie might nonetheless be a person whose interests might be affected by the Kokatha claim and thus a party pursuant to s 84(3) of the Act. On 16 February 2006 Mr McKenzie and others lodged the second Kuyani Native Title Claim (the Kuyani-Wilyaru People Native Title Claim). It also overlapped in part the area of the overlap proceeding and orders were made that it be dealt with in the overlap proceeding to the extent of the overlap. The new claim suffered from the same difficulties as the first Kuyani Claim and a notice of discontinuance was filed in respect of it. Mr McKenzie nonetheless remains a respondent in the overlap proceeding (s 84(3)(a)(ii) and (iii)). Mr McKenzie has not filed a fresh application but he has filed a draft statement of facts and contentions in the overlap proceeding. He disputes the claim of the Kokatha that they inhabited the claim area in the overlap proceeding prior to sovereignty. He asserts that the Kuyani People had at that time native title rights and interests in a stipulated part of that area. His statement concludes:3.4In the event that a determination is made in these proceedings that only the Applicants, or any of them, hold the common or group rights as native title holders, and having regard particularly to s 61A of the Native Title Act 1993, Mr McKenzie’s lawful interest as native title holder (and those of other Kuyani in his position) will not be able to [be] adequately recognized, and such a determination is opposed.3.5Again having regard particularly to s 61A of the Native Title Act 1993, and for the same reasons as advanced in the previous paragraph, Mr McKenzie opposes a determination that native title does not exist over the claim area.3.6Mr McKenzie seeks a determination under section 225 of the Native Title Act 1993 that the common or group rights in respect of the hachured area on the attached map are held by the Applicants on a shared basis with Mr McKenzie and other Kuyani with ancestral connection to that area, in accordance with Murranginhi traditional law and custom.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BRANSON, SUNDBERG AND DOWSETT JJ
This is not an appropriate occasion for consideration of the nature of an individual native title right. Mr McKenzie has not asserted that he alone holds any relevant native title rights. His claim is to hold native title rights and interests in a portion of the relevant claim area “as a member of the Kuyani people with ancestral connection on that area”. He also claims that his native title rights and interests are shared with the first and second applicants. We observe, however, that the sole survivor of a class or group of persons who once held the common or group rights comprising the native title in an area would need no additional authority to make a claim under s 13(1). By contrast, an individual who claimed that according to the traditional laws and customs of his or her society, he or she alone had the right to enjoy some element of the common or group rights comprising the native title, would need to be authorised as required by s 61 to make a claim under s 13(1).CONCLUSION Section 213(1) of the Act discloses a legislative intent that a determination of native title should only be made by the Court in accordance with the procedures set out in the Act. In our view, since the coming into force of the Native Title Amendment Act, those procedures require, as a minimum, that before any determination may be made that native title is held by a particular group, an application as mentioned in s 13(1) must be made under Part 3 of the Act by a person or persons authorised by that group in the manner required by s 61(1). It is unnecessary on this appeal to determine what, if any, other requirements of Division 1 of Part 3 of the Act may also be critical to the making of such a determination. We therefore conclude that where more than one native title claim group seeks a determination that it holds common or group rights and interests constituting the whole or part of the native title to an area, each group must authorise a person or persons to make an application as mentioned in s 13(1) under Part 3 of the Act. Where more than one application is made, to the extent that the applications cover the same area, they will be dealt with in the one proceeding (s 67). Consequently a determination of native title in respect of any one or more of the claim groups will be able to be made in accordance with the procedures of the Act (s 213(1)). Alternatively, if following the giving of notice by the Native Title Registrar of the making of an application or applications in respect of the area, only one application is filed in respect of that area, the Court would be entitled to be satisfied that no other claim group or groups asserts a claim to hold native title to the area. We are conscious that our views on this matter may, at first blush, appear not to accord with the views expressed by Beaumont J and von Doussa JJ in Western Australia v Ward at [191]-[194]. However, their Honours were there concerned to construe the Act as a force before the enactment of the Native Title Amendment Act. We have drawn attention above to the significant nature of the amendments effected by that Act. In particular we consider it significant that s 61 as originally enacted authorised a s 13(1) application to be brought by “[a] person or persons claiming to hold the native title either alone or with others”. That is, the Act then contained no provisions that required an applicant under s 13(1) to be authorised by the relevant native title claim group. There was therefore at that time no impediment in the way of a non-claimant party to a native title determination application effectively cross-claiming for a determination in his or her favour. Additionally, as noted in [39] above, the Balangarra Peoples were parties to the native title determination application the subject of the appeal in Western Australia v Ward.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON, SUNDBERG AND DOWSETT JJ

The Commonwealth outlined its basic argument in the following way:9.(a) By s 81 of the NTA, ‘[t]he Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title…’.(b)The basic rule is ‘It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words’.(c)One avenue by which the Court’s jurisdiction might be invoked (and by which it has been invoked in the present case) is by the making of a claimant application of the kind provided for by section 61 of the NTA. Such an application may, as is contemplated in ss 13(1)(a) and 13(3)(a), lead to a ‘determination of native title’. An exception to this is where proceedings are dismissed and no determination of native title is made.(d)The content of a ‘determination of native title’ is controlled by s 225 of the NTA. Section 225, on broad analysis, directs the Court to consider the content of all rights and interests in the land in question (in this case the subject lands) – whether those interests are native title rights and interests or other rights and interests – and the relationship between the various rights that are found to exist.(e)The basic rule against reading the jurisdiction of the Court as limited, combined with the objects, text and structure of the NTA, does not favour the fettering of the Court’s jurisdiction in the manner reflected in the decision below.10.The Commonwealth does not submit that it is desirable that assertions of native title be made by respondents, or that the disadvantages that a respondent asserting native title will face should be removed or ameliorated. The Commonwealth’s position is that the possibility that the Court might be able to make a determination of native title which recognises the native rights and interests of a group that does not conform with a group identified in an application should not be excluded peremptorily or on procedural grounds. The Commonwealth submits that, if on the evidence in a particular case, the Court is satisfied that native title rights and interest are held by a person or group that is not an applicant, then a determination to that effect is not proscribed by the NTA. CONSIDERATIONGeneral It can be seen at once that there is a potential tension between the restrictions inherent in s 61(1) concerning the person or persons who may make an application under s 13(1) for a determination of native title and the requirements of s 94A that any order making a determination of native title set out details of the matters mentioned in s 225. This potential tension is most apparent where, as in the case of Mr McKenzie, a person or a group of persons who has no s 13(1) application on foot asserts native title rights in relation to land and waters the subject of a s 13(1) application made on behalf of others. It is plain that a person who claims to hold native title in relation to land and waters the subject of a s 13(1) application is a party to the proceeding initiated by the filing of the application under s 13(1) (s 84(3)(a)(ii)). It is also plain that a determination of native title is required to identify the persons, or each group of persons, holding the common or group rights comprising the native title (s 225(a)) and set out details of the nature and extent of the native title rights and interests in relation to the determination area (s 225(b)). Does it therefore follow, as the Commonwealth and Mr McKenzie contend, that provided that a valid s 13(1) application (ie an application made by a person or persons properly authorised by the native title claim group) has been made in relation to an area, the Court may make a determination that another group of persons, who have not authorised the making of an application for a determination of native title in relation to that area, hold common or group rights comprising native title in relation to that area?