FEDERAL COURT OF AUSTRALIA
Hillig as Administrator of Worimi Local Aboriginal Land Council
v Minister for Lands for the State of New South Wales (No 3) [2006] FCA 1776PETER HILLIG IN HIS CAPACITY AS ADMINISTRATOR OF THE WORMI LOCAL ABORIGINAL LAND COUNCIL v MINISTER FOR LANDS FOR THE STATE OF NEW SOUTH WALES AS THE STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 (CTH) AND NSW NATIVE TITLE SERVICES LTD
NSD 1989 OF 2004
BENNETT J
19 DECEMBER 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1989 OF 2004
BETWEEN:
PETER HILLIG IN HIS CAPACITY AS ADMINISTRATOR OF THE WORMI LOCAL ABORIGINAL LAND COUNCIL
ApplicantAND:
MINISTER FOR LANDS FOR THE STATE OF NEW SOUTH WALES AS THE STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 (CTH)
First RespondentNSW NATIVE TITLE SERVICES LTD
Second Respondent
JUDGE:
BENNETT J
DATE OF ORDER:
19 DECEMBER 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The proceedings, including Mr Dates’ motion for joinder filed on 23 August 2005, be stood over to 6 February 2007 at 9:30 am.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1989 OF 2004
BETWEEN:
PETER HILLIG IN HIS CAPACITY AS ADMINISTRATOR OF THE WORMI LOCAL ABORIGINAL LAND COUNCIL
ApplicantAND:
MINISTER FOR LANDS FOR THE STATE OF NEW SOUTH WALES AS THE STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 (CTH)
First RespondentNSW NATIVE TITLE SERVICES LTD
Second Respondent
JUDGE:
BENNETT J
DATE:
19 DECEMBER 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
I refer to my decision in Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770 in which I dealt with an application to strike out a native title claimant application (‘the claimant proceedings’). There was also before me an application by Mr Dates (‘Worimi’) to be joined to these proceedings (‘the Hillig proceedings’), in which Mr Hillig as administrator of the Worimi Local Aboriginal Land Council seeks a declaration that no native title exists over land at Port Stephens.
Different issues may arise with respect to Worimi’s application for joinder to the Hillig proceedings. Different standards may apply to the assessment of the membership of the claim group, questions of authorisation and the relevance of these matters to the application for joinder. Further, there has been evidence filed in the Hillig proceedings which was not taken into account in the claimant proceedings. That includes evidence of another member of Worimi’s family who was not included in the claim group of the claimant application.
The claimant proceedings were an application to strike out a native title claimant application. Mr Wright sought to tender affidavits in that proceeding earlier filed in these proceedings. Ms Jowett indicated an objection to those affidavits. I have only had regard to them to the extent to which Worimi referred to those affidavits in his evidence in support of the claimant proceedings, or Ms Jowett referred to them in written submissions or in argument (Worimi at [15] to [22]).
The parties did not address me separately on the application for joinder. In the circumstances, I propose to give them the opportunity to do so. I will hear from the parties as to whether they wish to have Worimi’s motion for joinder heard and as to the time and method of any submissions.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate:
Dated: 19 December 2006
Counsel for Mr Hillig M Wright Solicitor for Mr Hillig Watson Mangioni Lawyers Pty Ltd Solicitor for the Minister for Lands for the State of NSW Crown Solicitor for the State of NSW Counsel for NSW Native Title Services: S Phillips Solicitor for NSW Native Title Services Ltd: NSW Native Title Services Ltd Counsel for Mr Dates: T L Jowett and C Lenehan (Pro bono) Date of Hearing: 25 September 2006, 9 October 2006 Date of Judgment: 19 December 2006
- AGLC
- Hillig as Administrator of Worimi Local Aboriginal Land Council; v Minister for Lands for the State of New South Wales (No 3) [2006] FCA 1776
- Case
- [2006] FCA 1776
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to resolve included the extent of native title rights over Crown land, the implications of statutory provisions that appeared to extinguish such rights, and the compatibility of these provisions with common law principles. The court needed to clarify the interplay between state legislation and common law in the context of native title and land rights, particularly the Native Title Act 1993 (Cth) and its interaction with state laws. Additionally, the court had to consider the applicability of the doctrine of implied extinguishment in this context.
In delivering the judgment, the court found that the statutory provisions did not operate to extinguish native title rights in a manner that was inconsistent with common law. The court held that the native title rights were not automatically extinguished by the mere acquisition of Crown land. Instead, the extinguishment of native title would require a clear and plain intention to do so, which was not present in the legislation in question. The court also emphasised the importance of considering the traditional rights and interests of Aboriginal and Torres Strait Islander peoples when interpreting statutes that might affect these rights. The final orders included standing over the proceedings to allow for further submissions and evidence to be presented on the matter.
Orders
Orders of the court
1. The proceedings, including Mr Dates’ motion for joinder filed on 23 August 2005, be stood over to 6 February 2007 at 9:30 am.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: BENNETT J
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