Heathgate Resources Pty Ltd v Gordon Coulthard, Geraldine Anderson &others No. DCCIV-01-197

HEATHGATE RESOURCES PTY LTD V COULTHARD, ANDERSON & OTHERS
[2002] SADC 57
JUDGE ROBERTSON
CIVIL
Nature of the Proceedings

The Plaintiff, Heathgate Resources Pty Ltd (“Heathgate”) has brought Interpleader proceedings against the defendants pursuant to Rule 42 of the District Court Rules 1992 (“the Rules”). The proceedings are supported by an affidavit sworn by David Andrew Brunt on 8 February 2002 (“Mr Brunt”), a director of Heathgate, on 8 February 2002. In his affidavit, Mr Brunt deposes to a number of factual matters.
Heathgate carries out mining activities at Beverley, South Australia. I pause here to state that this reference is to the Beverley mine in the far north of South Australia. Heathgate has separate written agreements with the first defendant (“Gordon Coulthard”), the second defendant (“Thathy Anderson”) and the people who are named as the third defendants (“the third defendants”) with respect to those mining activities. The agreement with Gordon Coulthard, was entered into on or about the 27 February 1998; with Thathy Anderson on or about the 22 April 1998 and with the third defendants on or about 27 July 1998.
Prior to the finalising of each of the agreements Mr Brunt, on behalf of Heathgate, negotiated with each of the parties regarding the substance and terms of the respective agreements. Each of the agreements was entered into by Gordon Coulthard, Thathy Anderson and the third defendants respectively in their capacity as applicants for a determination of Native Title, which application had been made for and on behalf of the Adnyamathanha People. Gordon Coulthard, Thathy Anderson and the third defendants had some time prior to the agreements respectively brought Native Title applications pursuant to the Native Title Act 1993 (Cth).
Each agreement was entered into pursuant to the provisions of Part 9B of the Mining Act 1971 (SA) (“the Mining Act”) and provide, inter alia, for royalty payments to be paid by Heathgate into a trust fund to be established by each of Gordon Coulthard, Thathy Anderson and the third defendants respectively. Gordon Coulthard and Thathy Anderson each established a trust fund in accordance with the terms of their respective agreements. The third defendants have not established a trust fund which Heathgate considers complies with the agreement entered into with the third defendants. In or about February 1999 Gordon Coulthard, Thathy Anderson and third defendants consolidated their respective Native Title claims into a single amended application for determination of Native Title for and on behalf of the Adnyamathanha People.
By letter dated 15 January 2002 the solicitors on record for the consolidated Native Title claim made in February 1999 informed Heathgate that royalty payments required to be paid into the trust funds established under the agreements with Gordon Coulthard and Thathy Anderson should be paid into the Adnyamathanha Traditional Lands Trust Fund established by the Adnyamathanha Traditional Lands Association, the fourth defendant (“the Association”). The letter also stated that if Heathgate proposed to make royalty payments to the trust funds established under the Gordon Coulthard agreement and the Thathy Anderson agreement then it was likely that legal proceedings would be instituted against Heathgate. The nature of the threatened legal proceedings was not identified. It was the threat of legal proceedings which was the genesis of the Interpleader proceedings.
The Raising of the Jurisdictional Issues
Following the commencement of the Interpleader proceedings Thathy Anderson brought an application pursuant to Rule 50 of the Rules seeking an order that the proceedings be dealt with in an expeditious manner. At the hearing of the application before Master Norman, Counsel for the Association, Mr Steele, challenged the jurisdiction of the District Court to entertain the Interpleader proceedings. He submitted that the Interpleader proceedings involved a native title question within the meaning of that term as defined in Section 3 (1) of the Native Title (South Australia) Act 1994, (“the Native Title (SA) Act”). He further submitted that because they involve a question of that nature the proceedings should have been instituted in the Environment Resources and Development Court (“the ERD Court”). As a result of this challenge to the competency of these proceedings Master Norman referred the question of jurisdiction, presumably pursuant to the terms of Section 44 of the District Court Act 1991, to a Judge for determination of that issue.
Relevant Sections of The Native Title (SA) Act
Before I proceed any further it is convenient to set out the relevant provisions of the Native Title (SA) Act upon which the Association relies for its challenge to the competency of these proceedings.
Section 5 provides:
“5.   (1)   The Supreme Court and the ERD Court each have jurisdiction to determine native title questions.
(2)   However, if it is clear before proceedings are commenced that they involve a native title question, the proceedings should be commenced in the ERD Court.
(3)   If the proceedings are commenced in the ERD Court because of subsection (2), the Court has jurisdiction to decide not only the native title questions but also the other questions raised in the proceedings.
(4)   The same procedural and other rules apply to both the Supreme Court and the ERD Court in exercising the jurisdiction to determine native title questions.”
Section 6 provides:-
“6. (1)   The Supreme Court may, and other courts of the State must, refer proceedings involving a native title question to the ERD Court for hearing and determination.
(2)   If proceedings are referred under this section to the ERD Court for hearing and determination, the ERD Court has jurisdiction to hear and determine the native title question and the other questions involved in the proceedings that might, if it were not for the reference, have been determined by the court from which the proceedings were referred.
(3)   The ERD Court may, on application by a party or on its own initiative, refer proceedings involving a native title question to the Supreme Court for hearing and determination.
(4)   The Supreme Court may, on the application by a party or on its own initiative, remove proceedings involving a native title question from the ERD Court into the Supreme Court for hearing and determination.
(5)   In deciding whether proceedings involving a native title question should be heard by the Supreme Court or the ERD Court, the following matters must be taken into consideration:
(a)   the importance of the questions involved in the    proceedings; and
(b)   the complexity of the legal and factual questions involved in the proceedings.”
Section 3(1) defines a “native title question” in the following terms:-
“ ‘native title question’ means a question about:-
(a)the existence of native title in land; or
(b)the nature of the rights conferred by native title in a particular instance; or
(c)compensation payable for an act extinguishing or otherwise affecting native title; or
(d)acquisition of native title in land, or entry to and occupation, use or exploitation of, native title land under powers conferred by an Act of Parliament; or
(e)any other matter related to native title”.
Submission made by Counsel for the Association.
Mr Steele, Counsel for the Association, submitted that the applications by Gordon Coulthard, Thathy Anderson and the third defendants for a determination of Native Title to land, were brought pursuant to the Native Title Act (Cth) 1993. This was not in dispute. Mr Steele further submitted that:-
· each of those defendants negotiated with Heathgate and eventually entered into the respective agreements with Heathgate in their capacities as Native Title claimants,
· each of the defendants was empowered to negotiate and enter into the respective agreements pursuant to provisions of Part 9B of the Mining Act 1971 (SA) because of their position as Native Title claimants,
· Heathgate was required to reach an agreement under Part 9B of the Mining Act (SA) if it wished to carry out mining operations on land in respect of which Native Title might exist,
· each of the agreements was a Native Title Mining Agreement entered into and registered under Part 9B of the Mining Act (S.A.).
None of these submissions were disputed by the other parties to the proceedings. In any event, I agree that the facts support the propositions put forward by Mr Steele.
Mr Steele relied upon placitum (a) but in particular placitum (d) of the definition of “native title question” to support his submission that the Interpleader proceedings involves such a question. Mr Steele submitted that those factors I have outlined make it clear that the proceedings involve a native title question and as a result Section 5(2) of the Native Title (SA) Act requires that the proceedings be instituted in the ERD Court. It follows, submitted Mr Steele, that District Court proceedings are incompetent. Although Mr Steele did not specifically say so, it also follows, if he is correct, that Heathgate will be required to abandon these proceedings and re-commence them in the ERD Court.
Are the Proceedings in the District Court incompetent?
It must be recognised from the outset that Section 5(1) provides that the only courts which have jurisdiction to determine a native title question are the Supreme Court and the ERD Court. The policy of the Act is clear. The ERD Court is the preferred Court except where the Supreme Court or the ERD Court concludes that the Supreme Court should determine the question after taking into account the factors set out in sub-section (5) of Section 6 of the Native Title (SA) Act.
In dealing with the issues raised it is appropriate to first determine whether these proceedings involve a native title question. To assist in resolving this issue attention needs to be directed to the written agreements made by Gordon Coulthard, Thathy Anderson and the third defendants respectively with Heathgate. I have before me the agreement made with Thathy Anderson dated 22 April 1998. (“the Anderson agreement”). It was not suggested that the terms of the agreements with Gordon Coulthard and the third defendants were materially different.
As I earlier stated, each of the defendants was at the time of the entering into the relevant agreement and still is a Registered Native Title claimant. Each of the defendants entered into the relevant agreement in their capacity as a Native Title claimant on behalf of the Adnyamathanha People. Clause 8 of the Anderson agreement provides for the payment of a royalty each six months into a Fund to be administered for and on behalf of the Adnyamathanha People by a Board of Trustees appointed by Thathy Anderson. Clause 8 also identifies the purposes for which the moneys held in the Fund are to be used. I mentioned earlier that Funds have been established, to the satisfaction of Heathgate, by Gordon Coulthard and Thathy Anderson. Heathgate has been paying royalties into each of those funds at a rate identified in each of the agreements.
I should also mention that Clause 13 of the Anderson agreement provides that if a court determines that a claimant other than Thathy Anderson is the Native Title Holder of the land then Heathgate is to make the royalty payments to that Native Title holder. Further, Clause 14 of the Anderson agreement provides that if there is a determination that Native Title does not exist or has been extinguished with respect to the land, Heathgate is still required to continue to make the royalty payments in accordance with the terms of the agreement.
On the evidence before me I am not satisfied that the Interpleader proceedings do involve a native title question within the meaning of that term in the Native Title (SA) Act. I acknowledge that the definition is of wide import. However, I do not accept that a native title question arises simply because Gordon Coulthard and Thathy Anderson negotiated for and entered into the agreements, under Part 9 of the Mining Act (SA), as Native Title Claimants for and on behalf of the Adnyamathanha People.
It is possible that the proceedings may involve a native title question. It is common ground that the Association as a corporate body has no standing to bring a Native Title Claim under the Native Title Act (SA) or the Commonwealth Native Title Act. That fact alone would not prevent the challenge made to Heathgate from involving a native title question. However, until the basis upon which the Association asserts that the Adnyamathanha Traditional Lands Trust Fund is the rightful repository of the royalty payments and not the respective Funds established by Gordon Coulthard and Thathy Anderson pursuant to their agreements is made clear, it is not possible to determine if a native title question arises in the Interpleader proceedings.
My conclusion that the Association has not demonstrated that the proceedings involve a native title question brings to an end the challenge to the proceedings in this Court for the present time. However, I consider it appropriate that I proceed to deal with the entire submission on jurisdiction made by Mr Steele. I will therefore proceed from this point on the assumption that the proceedings do involve a native title question.
Earlier in these Reasons I acknowledged that Section 5(1) of the Native Title (SA) Act provides that the Courts with jurisdiction to determine a native title question are the Supreme Court and the ERD Court. Mr Steele submitted that the word “should” in sub-section (2) needs to be read as “must” and that as it was clear that the proceedings involved a native title question, they were incompetent because of the requirement that they be commenced in the ERD Court. He submitted that Section 6(1) only operates in circumstances where at the time of the commencement of the proceedings in the District Court it was not clear that the proceedings involved a native title question and that during the course of the proceedings it became apparent that a native title question was involved. In those circumstances, said Mr Steele, the proceedings would be competent to that time but Section 6 requires the Court to refer the proceedings to the ERD Court.
There are two issues which arise from these submissions. First, is the word “should” mandatory in its nature? In other words, to use the words of Mr Steele, the word should is to be read as “must”. Secondly, the role that Section 6 has in its association with Section 5, in dealing with proceedings involving a native title question.
Issues of statutory interpretation involving words which are mandatory by nature such as “shall” or “must” and words which are permissive or directory in nature such as “may” have be-devilled Courts over the years. Courts have from time to time been called upon to decide whether words which are mandatory in nature should be read permissively and words which are permissive or directory in nature should be read in a mandatory manner. There is no specific formula for resolving such issues. This point was highlighted by Lord Penzance in Howard v Bodington (1877) 2 PD 203, when he said at 211:
“I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory”.
When sub-section (2) is read with sub-section (1) of Section 5, in my opinion, it becomes clear that the word “should” needs to be read as directory and not mandatory. Section 5(1) provides that both the Supreme Court and the ERD Court have jurisdiction to determine a native title question. Having indicated that either Court has jurisdiction Parliament could not “in the next breath” be saying that when a litigant is satisfied that the proceedings to be commenced involves a native title question, that the only court which has jurisdiction is the ERD Court. What sub-section (2) is doing is directing the proceedings to the ERD Court. It is not making it mandatory that such proceedings be commenced in that Court. This construction is also consistent with the clear intent of Parliament that the ERD Court is the preferred Court but it is not the only Court with jurisdiction.
I now turn to consider the interpretation of Section 6. In my opinion there is no warrant to interpret the Section in the manner suggested by Mr Steele. It seems to me that his submission was dependent on his submission that sub-section (2) of Section 5 was mandatory in nature. If Mr Steele’s submission is correct then, as he has argued in this case, where it is not recognised that a native title question is involved in the proceedings by a litigant, albeit that it was present, and they are commenced in the District Court, then those proceedings are incompetent and the litigant is required to commence the proceedings again in the ERD Court. Why should there be a distinction drawn between such circumstances and a case where the native title question is “hidden” and surfaces during the course of the proceedings? In either case the District Court does not have any jurisdiction to make a final determination on the native title question. Surely it was not Parliament’s intention to make such a distinction.
Section 6 recognises that proceedings involving a native title question may find their way into a court without jurisdiction to make a final determination. Its objective is to ensure the proceedings are transferred to the ERD Court without requiring the litigants to start again. Whether the proceedings should have been in the ERD Court from the outset is not to the point. There is no warrant in the legislation to read Section 6 in confined manner suggested by Mr Steele. In my opinion, the effect of Section 6 is that any proceedings commenced in the District Court, involving a native title question, are not incompetent for that reason but the Court is required to transfer the proceedings to the ERD Court.
As a result of the view I take regarding the interpretation of Sections 5 and 6 of the Native Title (SA) Act, it follows that I would not have accepted Mr Steele’s submissions that the proceedings were incompetent even if I were satisfied that the proceedings involved a native title question.
When is the District Court required to refer proceedings?
Before I conclude these Reasons there is one matter raised by Mr McNamara QC, Counsel for Thathy Anderson, which I wish to address. It was the submission of Mr McNamara QC that even where the District Court is satisfied that the proceedings before the Court involved a native title question, it is entitled to retain control of the proceedings through the interlocutory stages before referring the proceedings to the ERD Court for final determination. He said there was nothing in Section 6 to suggest that the Court was required to refer the proceedings immediately after becoming satisfied that there was a native title question.
I do not accept this submission. In my opinion once the Court is satisfied that the proceedings involve a native title question then it is obliged to expeditiously refer the proceedings to the ERD Court. Such an opinion is in accordance with the policy of the legislation drawn from the provisions of Sections 5 and 6 of the Native Title (SA) Act that the Court to determine such questions is the ERD Court except for circumstances where the Supreme Court should be the forum. Further support for that view is found in the procedure laid down in Part 3 of the Native Title (SA) Act for the ERD Court to deal with a native title question. It is a completely different, and less formal regime than procedures which prevail in the District Court. It is clear that Parliament requires that the procedure in Part 3 should apply where there is a native title question under consideration.
CONCLUSION

For reasons I have expressed, I refuse the fourth defendant’s application to order that the Interpleader proceedings in this Court are incompetent and a nullity.
I will hear the parties on what orders should be made and also on the question of costs.

[2002] SADC 57

16 May 2002