FEDERAL COURT OF AUSTRALIA
Griffiths v Northern Territory of Australia [2014] FCA 256
Citation: Griffiths v Northern Territory of Australia [2014] FCA 256 Parties: ALAN GRIFFITHS AND LORRAINE JONES ON BEHALF OF THE NGALIWURRI AND NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA File number: NTD 18 of 2011 Judge: MANSFIELD J Date of judgment: 19 March 2014 Catchwords: NATIVE TITLE – compensation claim – native title recognised over part of claim area – whether s 47B Native Title Act 1993 (Cth) can apply to compensation claim – effect of declaration of Reserves – effect of construction of public works – effect of Crown to Crown grants Legislation: Native Title Act 1993 (Cth) 23B, 50, 61, 51, 17,20, 228, 17, 20, 232A, 22D, 22G, 23F, 23I, 23J, 233, 47B, 219-232, 239, 23JA, 238, 253, 47, 47A, 61A, 62
Validation (Native Title) Act (NT) ss 5, 6, 7, 9B-9E, 9(7), 9K, 3
Racial Discrimination Act 1975 (Cth) s 45
Northern Territory (Self-Government Act) 1978 (Cth)
Northern Territory Acceptance Act 1910 (Cth)
Northern Territory (Administration) Act 1910 (Cth)
Northern Territory Land Act 1872 (SA)
Northern Territory Land Act 1899 (SA)
Crown Lands Ordinance 1931-1961 ss 103,5
Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) [5.45], [5,56]
Crown Land Ordinance 1931 (NT)
Native Title Act Amendment Bill (No 2) 1997 (Cth).Cases cited: Griffiths v Northern Territory (2007) 165 FCR 300 cited
Griffiths v Northern Territory (2007) 165 FCR 391 applied
Western Australia v Ward (2002) 213 CLR 1 cited
Jango v Northern Territory (2006) 152 FCR 150 applied
King v Northern Territory [2007] FCA 944 cited
Gumana v Northern Territory (2007) 158 FCR 349 cited
Jango v Northern Territory (2007) 159 FCR 531 distinguished
Western Australia v Ward (2000) 99 FCR 316 distinguished
Gumana v Northern Territory (2005) 141 FCR 457 cited
Erubam Le (Darnley Islanders) v Queensland (2003) 134 FCR 155 applied
Wilson v Anderson (2002) 213 CLR 401 applied
Mabo v Queensland (No 2) (1992) 175 CLR 1 cited
Western Australia v Brown [2014] HCA 8 cited
Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FCR 178 cited
Wandarang People v Northern Territory (2000) 104 FCR 380 citedDate of hearing: 29 and 30 October 2012 Place: Adelaide (via video link to Darwin) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 127 Counsel for the Applicant: SA Glacken SC and PG Willis Solicitor for the Applicant: Northern Land Council Counsel for the Respondent: MP Grant QC Solicitor General for the Northern Territory and S Brownhill Solicitor for the Respondent: Solicitor for the Northern Territory Counsel for the Commonwealth as Intervener: R Webb QC and N Kidson Solicitor for the Commonwealth as Intervener: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NTD 18 of 2011
BETWEEN: ALAN GRIFFITHS AND LORRAINE JONES ON BEHALF OF THE NGALIWURRI AND NUNGALI PEOPLES
ApplicantAND: NORTHERN TERRITORY OF AUSTRALIA
Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
19 MARCH 2014
WHERE MADE:
ADELAIDE (VIA VIDEO LINK TO…
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- Griffiths v Northern Territory [2014] FCA 256
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- [2014] FCA 256
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CaseChat Overview and Summary
The legal issues that the court needed to decide included whether the applicant should be granted leave to amend the application to incorporate the claim for compensation over the invalid future acts. The court also needed to determine the substantive basis for the claim for compensation. The court examined the relevant legislation, including the Native Title Act and the Validation of Northern Territory Acts Act, to understand the conditions under which compensation could be claimed. The court found that compensation could only be claimed for acts that extinguished native title rights and interests that had not been extinguished at common law. Acts that validly extinguished native title at common law were not compensable. The court also considered whether the acts for which compensation was claimed occurred after 31 October 1975, the date from which the Racial Discrimination Act applied. The court concluded that none of the acts for which compensation was claimed occurred before this date.
The court's reasoning focused on the requirements for compensation under the relevant legislation and the specific circumstances of the case. The court noted that compensation could only be claimed for acts that extinguished native title rights and interests that had not been extinguished at common law. The court also considered the timing of the acts in question and whether they occurred after the date from which the Racial Discrimination Act applied. The court granted leave to amend the application and allowed for the exchange of submissions to address the substantive basis for the claim for compensation. The court also set out a process for the parties to propose and agree on the form of orders that should follow the judgment. The court's outcome was to provide a clear path forward for the parties to address the substantive issues in the case.
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
Ratio Decidendi
Legal Principle Established
The acts must involve the extinguishment of native title by acts which are previous exclusive possession acts or previous non-exclusive possession acts, but only to the extent, if any, that the native title rights and interests were not extinguished at common law rather than by operation of the NT Act (s 23J(1)); and secondly, the extinguishment of or other prescribed effect on native title by acts which are past acts or intermediate period acts, being acts which were invalid because of the existence of native title. Conversely, the Territory will bear no liability for compensation for acts which validly extinguished native title at common law (ie without reliance upon the NT Act or the VNT Act for the validation: see Wilson v Anderson (2002) 213 CLR 401 at [51]. Hence, acts which extinguished native title prior to the enactment of the RDA are not compensable: Western Australia v Ward (2002) 213 CLR 1 at [114]. In the present circumstances, none of the acts for which compensation is claimed occurred prior to 31 October 1975.CONSIDERATION The starting issue in respect of most of the areas in question is whether there were acts which had an extinguishing effect at common law on the native title rights and interests in the application area before the acts for which compensation is claimed occurred. There are two broad categories identified by the parties:(a)extinguishment by historic tenure in the form of various grants and reservations; and(b)extinguishment by public works. Much of the understanding of the operation of the NT Act regarding compensation is common ground. At common law, native title is liable to be extinguished by the legislature or by an act of the executive in exercise of powers conferred upon it; without giving rise to a claim for compensation: see Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo No 2) per Mason CJ and McHugh at 15. The RDA applies to acts committed after 31 October 1975, restricting interference with native title rights on the basis of race. The RDA provides a guarantee of “equality before the law” with respect to rights protected by the International Convention on the Elimination of All Forms of Racial Discrimination. Those rights include “the right to own property” which itself includes the right not to be arbitrarily deprived of property. Equality before the law requires payment of compensation for the extinguishment or impairment of native title. Compensation for the impairment of native title rights is provided for in the NT Act, read together (in the context of the current claim) with the provisions of the VNT Act. Part 2 of the VNT Act validates past acts and intermediate period acts attributable to the Territory and s 3 and Pt 3A deals with the effect of the validation. Beneficial reservations contained in past and intermediate period acts are preserved by Pt 5 of the VNT Act. The effect of previous exclusive and non-exclusive possession acts are dealt with in Pts 3B and 3C. A determination for compensation cannot be made unless there is also a determination of native title in relation to the land or waters, including a determination that native title has been extinguished: Jango v Northern Territory (2006) 152 FCR 150 at [41] per Sackville J.The application of s 47B to compensation applications