Griffiths v Northern Territory

Case [2014] FCA 256

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 cited
Date 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
Applicant
AND:

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
Case
[2014] FCA 256
Decision Date

CaseChat Overview and Summary

In Griffiths v Northern Territory, the applicant sought to amend a compensation application to include claims for invalid future acts. Both the Northern Territory and the Commonwealth opposed the amendment, arguing that insufficient information had been provided to substantiate the claim. The court considered that the most efficient way to address the claim, which arose from similar facts and related to the same portions of land, was to grant leave to amend the application and allow for the exchange of submissions. The issues involved were complex and required detailed examination of various acts listed in a table attached to the reasons. The court decided to give the applicant the opportunity to propose the form of orders that should follow the judgment. If the parties could not agree, the court would allow the Northern Territory and the Commonwealth to file their respective proposed orders within a specified period. Each party and the intervener could support their respective proposed orders with written submissions. The court would then hear the parties regarding an appropriate timetable.

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

The second question is whether the applicant should be granted leave to amend the application to incorporate the claim for compensation over the invalid future acts. Both the Territory and Commonwealth indicated that they were unable to agree to the joining of these items to the compensation application on the basis that insufficient information had been given as to the basis for that claim. Their concern was not expressed in terms of prejudice but in terms of whether the claim for compensation had any substantive basis. I consider that the most efficient way of dealing with this claim, arising as it does out of similar facts and over the same portions of land, is for leave to amend the application to be granted and for the proper exchange of submissions.CONCLUSION As is apparent, the issues addressed above are complex and require particular application to the various contentious acts in the Table appended to these reasons. I will give leave to the applicant in the first place to propose the form of orders which should follow this judgment. If the appropriate form of orders is not agreed, I will give leave to the Territory and the Commonwealth within a further period to be specified to file and serve their respective form of proposed orders. Each party and the intervener may support their respective proposed orders by written submissions. I will hear the parties as to an appropriate timetable.

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