Griffiths v Minister for Lands, Planning and Environment

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HIGH COURT OF AUSTRALIA

GLEESON CJ
GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

ALAN GRIFFITHS ON BEHALF OF THE
NGALIWURRU AND NUNGALI PEOPLES
AND ANOR   APPELLANTS

AND

MINISTER FOR LANDS, PLANNING
AND ENVIRONMENT AND ANOR   RESPONDENTS

Griffiths v Minister for Lands, Planning and Environment
[2008] HCA 20
15 May 2008
D8/2007

ORDER

1.        Appeal dismissed.

2.        Appellants to pay the costs of the first respondent.

On appeal from the Supreme Court of the Northern Territory

Representation

S J Gageler SC with S A Glacken for the appellants instructed by (Northern Land Council)

D F Jackson QC with R J Webb QC for the first respondent (instructed by Solicitor for the Northern Territory)

Interveners

R G Orr QC with M A Perry QC intervening on behalf of the Attorney-General for the Commonwealth of Australia (instructed by Australian Government Solicitor)

R J Meadows QC Solicitor-General for the State of Western Australia with G J Ranson intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)

M G Sexton SC Solicitor-General for the State of New South Wales with S B Lloyd intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ. I agree with the orders proposed by Gummow, Hayne and Heydon JJ, and with their reasons ("the joint reasons") for those orders. I would make the following additional observations about the second issue dealt with in those reasons, that is, the construction of s 24MD(2)(b) of the Native Title Act 1993 (Cth).

  2. Section 24MD(2) provides for the extinguishment of native title on just terms as to compensation if:

    "(a)the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both:

    (i)the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and

    (ii)the compulsory acquisition by the Commonwealth, the State or the Territory of non-native title rights and interests in relation to land or waters; and

    (b)the whole, or the equivalent part, of all non-native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired (whether compulsorily or by surrender, cancellation or resumption or otherwise) in connection with the compulsory acquisition of the native title rights and interests; and

    (ba)the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests when their rights and interests are acquired[.]"

  3. The evident concern of these three conditions of the operation of the substantive provisions of s 24MD(2) relating to extinguishment of native…

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Details
Case
[2008] HCA 20
Decision Date

CaseChat Overview and Summary

The parties to this case were Alan Griffiths and William Gulwin, acting on behalf of the Ngaliwurru and Nungali peoples, and the Minister for Lands, Planning and Environment. The dispute concerned the validity of notices of proposed compulsory acquisition of certain lots of land near Timber Creek in the Northern Territory. The appellants argued that the compulsory acquisition was invalid, particularly in relation to their native title rights and interests. The case was heard by the High Court of Australia.

The central legal issues before the High Court were whether section 43(1) of the *Lands Acquisition Act* (NT) conferred power on the Minister to compulsorily acquire land for any purpose, including solely for subsequent sale or lease for private use, and whether this power extended to the extinguishment of native title rights and interests. The court also considered whether section 24MD(2) of the *Native Title Act* 1993 (Cth) permitted the extinguishment of native title by compulsory acquisition when no other non-native title rights subsisted, and whether the *Lands Acquisition Act* (NT) provided sufficiently clear and express terms for the acquisition of native title interests, given their unique communal and spiritual characteristics.

A majority of the High Court, in separate judgments, found that the *Lands Acquisition Act* (NT) did confer the power to acquire land for any purpose, including for subsequent private development. They held that the Act did not require the acquisition to be for a direct governmental purpose. Furthermore, the majority concluded that the *Native Title Act* 1993 (Cth), specifically section 24MD(2), did permit the extinguishment of native title by compulsory acquisition under the *Lands Acquisition Act* (NT) even in the absence of other subsisting interests. The majority reasoned that the language of the *Lands Acquisition Act* (NT) was sufficiently broad to encompass the acquisition of native title interests, and that there was no requirement for express and plain language to that effect in this context.

The appeal was dismissed, with the appellants ordered to pay the costs of the first respondent.

Orders

Orders of the court

1. Appeal dismissed.

2. Appellants to pay the costs of the first respondent. (Per Gummow, Hayne and Heydon JJ, with Crennan J agreeing, Gleeson CJ agreeing with additional reasons; Kirby and Kiefel J dissenting in separate judgments)

Background

Background to the litigation

It follows that the notices of proposal and notices of proposed compulsory acquisition were invalid. The primary judge was correct to set them aside. This Court should restore the primary judge's orders. It should do so to uphold, in case of ambiguity and uncertainty, the well-established principles of the common law that are here invoked by the appellants on behalf of the Aboriginal native title holders.The facts and legislation The facts: The background facts are set out in the joint reasons of Gummow, Hayne and Heydon JJ ("the joint reasons")[29]. However, it is desirable to add some more detail. [29]Joint reasons at [9]-[18]. The appellants, Alan Griffiths and William Gulwin, brought the present proceedings on behalf of the Ngaliwurru and Nungali peoples. The Ngaliwurru and Nungali peoples are a community of Aboriginal Australians who derive from a part of the north-west of the Northern Territory of Australia surrounding Timber Creek. That town was described in the Court of Appeal by Mildren J[30]:"Timber Creek is a small town in the Northern Territory located on the Victoria Highway 285 km west of Katherine and 193 km east of the Western Australian and Northern Territory border. Although the town has existed for well over a century, it was not until June 1975 that Timber Creek was gazetted as a town under the provisions of the former Crown Lands Ordinance, and it has remained proclaimed as a town ever since.The boundaries of the town straddle Victoria Highway. In addition to a number of quite small allotments there are a number of larger allotments within the boundaries of the town."[30](2004) 14 NTLR 188 at 202-203 [43]-[44]. As was recognised by the Full Court of the Federal Court of Australia in related proceedings[31], the Ngaliwurru and Nungali peoples had maintained their long-standing connection with the Timber Creek district in spite of early violent contact with European settlers and, later, their involvement in the cattle station economy that developed in the vicinity[32]. The history of legal dealings in one of the lots concerned (Lot 109) is in some ways similar to that of the traditional lands of the Wik and Thayorre peoples, the Aboriginal communities described in Wik Peoples v Queensland[33]. In the case of the Ngaliwurru and Nungali peoples, there had been pastoral leases over the land. However, there was an important difference. In the case of the Wik and Thayorre, the land in question was still subject to a pastoral lease, granted under Queensland legislation. In the case of the Ngaliwurru and Nungali people's land, the pastoral leases in respect of Lot 109 near Timber Creek had lapsed. The only legal interests in the lots of land, the subject of the impugned notices, were those of "the Crown", represented by the Government of the Northern Territory, and such interests as still belonged to the Ngaliwurru and Nungali peoples. [31]Griffiths v Northern Territory of Australia (2007) 243 ALR 72.[32]Griffiths (2007) 243 ALR 72 at 78-79 [14]-[18].[33](1996) 187 CLR 1 at 67-68; [1996] HCA 40 ("Wik").

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ GUMMOW, HAYNE AND HEYDON JJ KIRBY J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ,

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