Hollier, William Edward for the Holliers of the Bass Strait Islands v Registrar of the National Native Title Tribunal
[1997] FCA 390
•19 May 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION No VG 6001/96
WILLIAM EDWARD HOLLIER FOR THE
HOLLIERS OF THE BASS STRAIT ISLANDS
Applicant
-and-
REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL
First Respondent
-and-
COMMONWEALTH OF AUSTRALIA
Second Respondent
-and-
STATE OF VICTORIA
Third Respondent
-and-
STATE OF TASMANIA
Fourth Respondent
Coram: Olney J
Place: Melbourne
Date: 19 May 1997
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The application be dismissed.
The direction of Deputy President Wootten to the first respondent not to accept the applicant's application for a determination of native title be affirmed.
The applicant pay the respondents' costs including any reserved costs.
NOTE:Settlement and entry of orders is dealt with in order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION No VG 6001/96
WILLIAM EDWARD HOLLIER FOR THE
HOLLIERS OF THE BASS STRAIT ISLANDS
Applicant
-and-
REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL
First Respondent
-and-
COMMONWEALTH OF AUSTRALIA
Second Respondent
-and-
STATE OF VICTORIA
Third Respondent
-and-
STATE OF TASMANIA
Fourth Respondent
Coram: Olney J
Place: Melbourne
Date: 19 May 1997
REASONS FOR JUDGMENT
This is an application brought pursuant to s 169(2) of the Native Title Act 1993 (the Act) whereby the applicant appeals to the Court from a decision of a presidential member of the National Native Title Tribunal (the tribunal) not to accept an application under s 61 of the Act given to the Registrar of the Tribunal (the registrar) by the applicant. (In reality the decision appealed against is a direction to the registrar not to accept the application).
The appeal raises the question as to whether a person who is not a descendant of the inhabitants of Australia who were in occupation of the country prior to the assertion of British sovereignty can claim native title rights under the Act.
The scheme of the Act insofar as it relates to the making of an application for a determination of native title may be summarised as follows. A person or persons claiming to hold, either alone or with others, native title in relation to an area for which there is no approved determination of native title may make a "native title determination application" for a determination of native title by giving the application to the registrar (s 13(1); s 61(1)). The form and content of such an application are dealt with in s 61(2), (3) and s 62. If the requirements of s 62 are complied with in relation to the application the registrar must accept it unless of the opinion either that the application is frivolous or vexatious or that prima facie the claim cannot be made out (s 63(1)) and if the registrar is of such opinion, the application must be referred to a presidential member of the tribunal (s 63(2)). If the presidential member is not of the same opinion as the registrar, the presidential member must direct the registrar to accept the application (s 63(4)) but if of the same opinion as the registrar, the presidential member must advise the applicant in writing to that effect and give the applicant a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out (s 63(3)(a)). In the event that the applicant so satisfies the presidential member, the presidential member must direct the registrar to accept the application (s 63(3)(b)) but otherwise the presidential member must direct the registrar not to accept the application (s 63(3)(c)). A person who has given an application to the registrar under s 61 may appeal to the Federal Court on a question of fact or law, from a decision of a presidential member not to accept the application (s 169(2)). (The wording of s 169(2) is inconsistent with that of s 61(3)(c) in that the presidential member is not required or empowered to make a decision not to accept an application but rather, in the appropriate circumstances, must direct the registrar not to accept the application. For present purposes I am prepared to construe s 169(2) as giving a right of appeal against a decision directing the registrar not to accept an application. The point was not raised in argument).
On or about 28 September 1995 the applicant forwarded to the registrar an application for a determination of native title made pursuant to ss 13 and 61 of the Act. The application is expressed to have been made on behalf of the applicant and others described as "Holliers of the Bass Strait Islands". The area covered by the application is described as:
Deal Island, Bass Strait as the principal site of the area which also includes both the immediate region of the Kent Group and the islands and waters east to south-east of Wilson's Promontory and north to north-west of Flinders Island.
This is principally in the State of Tasmania but includes area in the State of Victoria.
Paragraph A7 of the form of application (National Native Title Regulations, Schedule 1, Form 1) requires the applicant to provide all information known to the applicant about interests in relation to any of the land or waters concerned that are held by persons other than as a native title body corporate. The applicant's response in this paragraph was:
It is believed the Crown land status of the islands has not been comprimised(sic) in that there has been no effective alienation of the land from the Crown and prior use of the land has only been transitory with the only occupancy and care of the land by the claimants.
Paragraph A9 of the printed form of application used by the applicant is headed, "Native Title Interests" and requires the applicant to:
Give information about any connection that exists or did exist between the applicant(s) and any persons with whom the applicant(s) claim(s) to hold title or the ancestors of the applicant(s) and those other persons, and the area covered by the application.
The applicant's response was:
The applicant and the persons with whom the applicant claims to hold title are connected in being related by both blood and marriage, recognise each other and their community and are and have resident (sic) at Deal Island.
Following receipt of the application on 28 February 1995 staff of the tribunal made contact with the applicant in order to provide the registrar with relevant information to assist the registrar in exercising her functions under s 63(1). In the event, a delegate of the registrar formed the opinion that prima facie the claim could not be made out and on 22 February 1996 referred the application to a presidential member of the Tribunal, the Hon Hal Wootten QC. On 25 February 1996 Deputy President Wootten indicated that he was of the same opinion as the registrar's delegate and on 28 March 1996 he wrote to the
applicant advising him to that effect and stating his reasons in these terms:
The application and the information provided do not point to the existence of any native title rights and interests in the land and waters which are claimed. The applicant in the original application suggests his native title is held with persons "with whom he is related by both marriage and blood, recognise each other and their community and are and have resident(sic) on Deal Island". The applicant does not point to any traditional connection to the land or water on the part of those included in the application, or any other living persons.
The applicant is presently residing on Deal Island resulting from a one-year lease with monthly hold-over provisions entered into in 1992 to maintain a human presence on the island to meet Australian Heritage Commission requirements when the Authority destaffed the island in 1992. In a phone call to the Case-Manager, Louise Goodchild on 29 September 1995, the applicant indicated he had been on the island for a period of three years. No other connection with the land and waters is suggested. The applicant supplied further information referred to as the "St Kilda extract". The St Kilda document does not support the existence of native title in the area of the application.
I refer to the judgement(sic) in Dominic WY Kanak v NNTT and others (unreported Federal Court NG6003 of 1995 27/10/95) Lockhart, Lee and Sackville JJ where it was stated (at 55) that:
"... the content of native title recognised by Mabo (No 2) is determined by the laws and customs of the indigenous inhabitants. But it is essential that there be an identifiable community, which has retained the requisite connection or association with the land claimed since the time the Crown acquired the radical title to the land. In order for native title to survive, there must have been an appropriate relationship between a particular clan or other group and the land. ... Whatever the nature of the association, however, native title can be enjoyed only by members of an identifiable community who are entitled to enjoy the land under the traditionally based laws and customs, as currently acknowledged and observed, of that community. Individuals may have native title rights that are protected, but these rights are dependent upon the existence of communal native title and are "carved out" of that title. The only persons entitled to claim native title are those who can show biological descent from the indigenous people entitled to enjoy the land under the laws and customs of their own clan or group".
It appears that prima facie the claim cannot be made out because:
There does not appear to be an identifiable community that has enjoyed native title to the area of the application from before the time the Crown acquired radical title to the area and which continues to do so.
Neither the applicant nor the others on whose behalf native title is claimed appear to be:
a)members of any such community;
b)descendants of the indigenous people of Australia;
The applicant was invited to make submissions to show that a prima facie case could be made out and responded at length by letter dated 6 June 1996. A number of issues were raised including the submission that as they were the first inhabitants of Deal Island, the applicant and his family are entitled to claim native title rights. The basis for this argument is the assertion that the only construction of the definition of the term "Aboriginal" in s 223(1) of the Act which is compatible with the provisions of the Racial Discrimination Act 1975 is "first inhabitant" and that "Aboriginal race" means the descendants of the first inhabitants. The applicant wrote:
"As the original inhabitants (probably previously unoccupied) of the claimed area we are entitled to use of this form of title to have our claim determined".
After consideration of the applicant's response Deputy President Wootten remained of the opinion that a prima facie claim could not be made out and directed the registrar not to accept the application. The Deputy President's reasons which were forwarded to the applicant under cover of a letter dated 29 July 1996 were as follows:
William Edward Hollier for the Holliers of the Bass Strait Islands has applied for a determination of native title over certain islands and water in Bass Strait.
On 22 February 1996 Jane Mussett the delegate of the Native Title Registrar, being of the opinion that the claim was unable to be made out, referred the matter to me as a Presidential Member under s 63(2) of the Act. Being of the same opinion as Ms Mussett I wrote to Mr Hollier on the 28 March 1996 inviting him to make submissions to me to show that prima facie the claim could be made out. On the 6 June 1996 Mr Hollier replied making certain submissions.
In my letter of 28 March 1996 I referred to the judgment of the Federal Court of 27 October 1995 in Dominik Kanak v NNTT and others and expressed the view that prima facie the claim could not be made out because, on the face of the claim and the additional material supplied by Mr Hollier:
there does not appear to be an identifiable community that has enjoyed native title to the area of the application from before the time the Crown acquired radical title to the area and which continues to do so.
neither the applicant nor the others on whose behalf native title is claimed appear to be (a) members of such a community or, (b) descendants of the indigenous people of Australia.
Mr Hollier has supplied information to the representative of the Registrar on a number of occasions and again in response to my letter. It appears that he and his family are presently residing on Deal Island as (sic, presumably as a result of) a yearly lease or agreement with monthly holdover provisions entered into in 1992. The purpose of the arrangement was to maintain a human presence to meet Australian Heritage Commission requirements when the Australian Maritime Safety Authority destaffed the island in 1992. Mr Hollier has been on the island for a period of three years and has not suggested any other connection with the land and waters.
It appears that Mr Hollier's case is that, by reason of the Racial Discrimination Act 1975, the Native Title Act 1993 must be construed as giving rights to all persons irrespective of race who are the original inhabitants of previously unoccupied areas.
It is clear from s 223 of the Native Title Act 1993, read in conjunction with the relevant judicial decisions as to the nature of the native title recognised by the common law, that native title can only be held by descendants of the indigenous inhabitants of Australia who were in occupation of the country prior to the assertion of British Sovereignty. As neither Mr Hollier nor any person on whose behalf he claims is such a person, he is not entitled to any rights which could be registered under the Native Title Act.
Mr Hollier's contention that this discriminates on the ground of race is based on a misunderstanding of the nature of native title and the Native Title Act 1993. Neither the common law nor the Native Title Act confers native title on any person; they simply recognise it where it exists. Native title is a form of title stemming from the rights enjoyed by the indigenous inhabitants of Australia prior to the assertion of British sovereignty. The indigenous inhabitants were the only persons who had such rights. The common law doctrine of native title and the Native Title Act 1993 simply recognise that historical fact and do not confer rights on persons by reason of race, or otherwise discriminate on the ground of race. Indeed, as was pointed out in Mabo No (2), it would have been discriminatory to refuse to recognise the property rights of indigenous people while protecting the property rights of other members of the community.
Accordingly pursuant to s 63(3)(c) I direct the Registrar not to accept the application.
The applicant commenced the present proceeding when he filed notice of appeal on 23 August 1996. On 15 November 1996 an amended notice of appeal was filed pursuant to leave. The grounds of appeal as expressed in the amended notice of appeal are as follows:
That the Presidential Member's decision is in error in its fundamental interpretation of the Native Title Act 1993 states
in 7.(1) "Nothing in this Act affects the operation of the Racial Discrimination Act 1975". It can neither override, exclude or be contrary to the Racial Discrimination Act (RDA) which clearly states that all legal forms and instruments must be equally available to all people.
We maintain that the NTA provides rights which must be extended to other people such as the right to negotiate, the rights to legal funding in civil matters, a right to communal self government, the rights to register and protect rights other than freehold such as fishing, sustenance and ceremonial etc.
We maintain that there is a reasonable and acceptable interpretation of the terminology and provisions of the NTA which complies with the RDA and provides equitable access to the NTA registry function for rights other than freehold and leasehold.
The NTA established that some communities have a right to self govenance associated with their connection with the land. Whereas free migration entails acceptance of the municipal form of community law those people who were forcibly and illegally dispossessed of land and their native form of communal government, indigenous rights to hunt, fish and communal life and ownership should have the right to the same form of community self governance as extended under Mabo to some native people.
We maintain we have rights via the representation, undertakings and consent of the government and Crown and by the facts of our situation that are neither freehold nor leasehold and entail a degree of self governance and that by the RDA should have access to the processes of law in the NTA to register and protect these rights.
The essence of our case is that even though the NTA is based on special measures provisions of the RDA it must be equitable and that this determines the interpretation of key terminology in the NTA and our particular circumstances provide valid grounds within this equitable interpretation.
The fundamental interpretation of the Act is a question of law.
That the Presidential Member's deliberation failed to consider the substance of the case and the information provided at his request. Questions of fact and law.
The Presidential Member failed to consider the substance of our case which was documented in our correspondence to him, he has misconstrued the basis of our claim.
We claim to have rights by representations, undertakings and agreement of the government and Crown and upon clarification of an equitable interpretation of the NTA the circumstances may be seen to provide us with common law rights. Secondly, we claim a right to have recognition, registration and protection of these rights under the NTA because of the equal access to the law provisions of the RDA.
That the National Native Tribunal process was defective in that information concerning the grounds for establishing a claim were not presented to the Presidential Member for his consideration. Questions of fact and law.
The processes undertaken by the Tribunal were defective in that the basis of our claim, as detailed above, was described to the case managers who stated that the information was clearly
expressed in the case file, which does not appear to be the case.
Secondly, I was advised that there would be a telephone conference with the Presidential Member prior to his decision which did not occur, even though I was advised in writing that other methods of presenting evidence other than written submissions would be available to me.
In the Waanyi case [North Ganalanja Aboriginal Corporation (and for and on behalf of the Waanyi) v Queensland (1995) 132 ALR 565: 135 ALR 225], the High Court found that where a claim that Native Title exists it should be accepted by the NNTT and a claim is "fairly arguable" when the claim depends upon an issue of law which is not yet conclusively determined by the courts.(sic) The High Court also found in the Waanyi case that the Native Title Registrar and Presidential Member should not have regard to material other than that contained in the application itself when applying the acceptance test for registration of claims.
Further in the Brandy case [Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245] the High Court determined that the NNTT cannot decide questions of law including whether an issue is a question of law thus invalidating s 144 of the NTA and requiring the use of s 145.
It is clear that the NNTT must register the claim and refer the questions of law to the Federal Court and that questions of law are to be decided during the preparation of the case and certainly prior to the consideration and determination of the case. Further the NNTT process was defective in that they should, according to the rulings of the High Court, not have sought advice from government departments and instrumentalities prior to registration of the claim but rather advised these bodies following registration who could then subsequently become party to the proceedings. This process would result in a public examination, mediation and negotiation rather than a process of which we have no knowledge and in which we are unable to contest the veracity or accuracy of facts.
On 9 December 1996 the Commonwealth filed a notice of motion seeking to be added as a party to this proceeding and on the same day the State of Victoria did likewise. On 7 February 1997 I made orders joining the Commonwealth and the States of Victoria and Tasmania as parties to the application. The matter was heard on 18 April 1997. The applicant appeared in person. The Commonwealth and the States of Victoria and Tasmania were represented by counsel who opposed the appeal. The Registrar entered a submitting appearance.
The applicant's submissions in support of the appeal were quite extensive and ranged from references to King Arthur to the United Nations draft constitution relating to colonies in space. For the most part however, the applicant's case was based upon the matters raised on the amended notice of appeal. He did not seek to identify any material to which the Deputy President had regard that had not been derived either from the application or from enquiries made from himself. He tendered further documentary material, without objection, but in view of the conclusion I have reached in relation to the construction of the Act it has no bearing upon the outcome of the appeal.
The respective functions of the registrar under s 63(1), of a presidential member under s 63(3) and of the Court on an appeal under s 169(2) were considered by the High Court in North Ganalangja Aboriginal Corporation v Queensland 185 CLR 595. The following principles relevant to the matter presently under consideration can be extracted from the joint judgment of Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ, in particular at pp 624-625:
The only information the registrar and presidential member may consider in deciding whether to accept an application is information provided by the applicant.
The preliminary screening procedure prescribed by s 63 cannot be interpreted so as to preclude consideration of applications which depend on questions of law that, being unsettled, are fairly arguable.
On an appeal under s 169(2) the question for the Court is not whether the presidential member was right in his conclusion about a contested point of law that is not settled but whether the point of law is fairly arguable.
An appeal under s 169(2) does not finally determine legal rights but is a proceeding designed to ensure that applications that are not self-evidently without merit are resolved in accordance with the procedures of the Act.
The information provided by the applicant to the registrar and later to the presidential member indicated that the applicant had resided on Deal Island for about three years under an arrangement entered into with the Commonwealth and that neither he nor any of those on whose behalf the claim was made is a descendant of the people who occupied Australia prior to the acquisition of radical title by the Crown. The applicant asserts that prior to his own residence on the island it had been uninhabited at least since the last ice age (said to be about 10,000 years ago) and that as the first inhabitants of the island he and his family should properly be regarded as its indigenous inhabitants.
The primary issue which fell to the presidential member to decide, and which the Court is now required to determine, is whether an application under s 61 made by or on behalf of persons who make no claim to have been descended from persons who enjoyed native title to the area in question since before the Crown acquired radical title to the area is self-evidently without merit.
In my opinion the application is self-evidently without merit. I base this conclusion upon the following reasoning.
The applicant claims to be entitled to make a native title determination application in the capacity of a person claiming to hold the native title in relation to the relevant area (s 61(1)). The expression "native title" is defined in the Act to mean:
... the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
a)the rights and interests are possessed under the traditional laws acknowledge, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs have a connection with the land or waters; and
c)the rights and interests are recognised by the common law of Australia.
(s 223(1)).
The term "Aboriginal peoples" is defined as meaning peoples of the Aboriginal race of Australia (s 253).
The preamble to the Act asserts that:
The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.
and further that:
The High Court has:
a)rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement; and
b)held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands; and
c)held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates.
The last mentioned recital has obviously been extracted directly from the reasons of Mason CJ and McHugh J in Mabo v Queensland (No 2) 175 CLR 1 at p 15. In that context the term "indigenous inhabitants" is clearly used to refer to the descendants of the people who occupied Australia prior to European settlement and the acquisition of radical title by the Crown and in the context of the Act the term "peoples of the Aboriginal race of Australia" used in s 253 has the same meaning. The applicant and those on whose behalf the application was made are clearly not "Aboriginal peoples" within the meaning of the Act and accordingly cannot claim to hold native title.
The applicant's argument based on the supposed effect of the Racial Discrimination Act 1975 is misconceived. I adopt with respect the reasons ably expressed by Deputy President Wootten in the penultimate paragraph of his letter of 29 July 1996 quoted earlier in these reasons.
On the admitted facts, the applicant's claim to be an indigenous inhabitant of Deal Island (and thus entitled to make application for a determination of native title) is not fairly arguable and it must follow that his application is self-evidently without merit.
In my opinion, the appeal should be dismissed with costs and
the presidential member's direction to the registrar not to accept the application should be affirmed.
I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney
Associate:
Dated:
Heard: 18 April 1997
Place: Melbourne
Judgment: 19 May 1997
Appearances:
The applicant appeared in person.
Mr C. Caleo (instructed by the Australian Government Solicitor) appeared for the second respondent.
Mr J.C. Paterson (instructed by the Victorian Government Solicitor) appeared for the third respondent.
Mr W.C.R. Bale QC (instructed by the Director of Public Prosecutions, Hobart) appeared for the fourth respondent.
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