Indigenous Land and Sea Corporation v Anderson
[2022] NSWSC 1650
•7 December 2022
|
New South Wales |
Case Name: | Indigenous Land and Sea Corporation v Anderson |
Medium Neutral Citation: | [2022] NSWSC 1650 |
Hearing Date(s): | 26–27, 29–30 September 2022 |
Date of Orders: | 7 December 2022 |
Decision Date: | 7 December 2022 |
Jurisdiction: | Common Law |
Before: | Griffiths AJ |
Decision: | See [297] |
Catchwords: | LAND LAW – Claims for possession of lands in New South Wales and Queensland by registered proprietor – Where lands required for divestment purposes pursuant to plaintiff’s statutory functions – Challenge to Court’s jurisdiction by first defendant |
Legislation Cited: | Aboriginal and Torres Strait Islander Act 2005 (Cth) |
Cases Cited: | AB (deceased) (on behalf of the Ngarla People) v Western Australia (No 4) [2012] FCA 1268; (2012) 300 ALR 193 |
Texts Cited: | Australian Law Reform Commission, Recognition of Aboriginal Customary Laws (June 1986) |
Category: | Principal judgment |
Parties: | Indigenous Land and Sea Corporation (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2020/00363972 |
Publication Restriction: | Nil |
JUDGMENT
Introduction
The Court’s jurisdiction challenged
(1) Foreign States Immunities Act
(2) Pacific Islanders Protection legislation
(3) Sovereignty
(4) Court’s competence or capacity
Conclusion to challenge on jurisdiction
Mr Anderson’s challenge to the plaintiff’s claim of privilege over certain documents
The substantive proceeding
Pleadings
The parties’ evidence summarised
The ILSC’s affidavits
(a) Mr Trevor Edmond
(b) Mr Christopher Martin
(c) Mr Mark Denning
(d) Mr Garry Cook
The defendants’ affidavits
(a) Mr Anderson’s evidence summarised
(b) Ms Sapotnik-Eckford’s evidence summarised
(c) The evidence of the defendants’ other witnesses summarised
Background facts based on documentary evidence
The location of Mogila and Currawillinghi
A history of the relevant dealings affecting Mogila and Currawillinghi
Deeds and caveats concerning the lands
Further leases
Winding up of Ngurampaa in liquidation
Registration of transfers of the lands back to ILSC
Agistment at Currawillinghi
Native title rights recognised over Currawillinghi
The ILSC’s demands to the defendants to vacate and commencement of proceedings
Consideration and determination
Indefeasibility of title of a registered proprietor
The ILSC’s claims for possession
The ILSC’s claim for possession concerning Mogila
Adverse possession
The ILSC’s standing and claimed errors in the Mogila caveat
Allegations of fraud, including lack of independent legal advice
Alleged misinformation in the Mogila caveat
Allegation that no independent legal advice was given to Ngurampaa
Alleged fraud on the part of the liquidator
The indemnity clause in the Deed of Settlement and Release
The alleged ulterior motive for the making of the ILSC’s claim for privilege
The ILSC’s alleged “deal” with the liquidator
The claim that the ILSC was responsible for Ngurampaa’s liquidation
Various claims of unconscionable conduct
Liquidator’s right to release the lands
Whether the claim for possession is contrary to the ATSI Act
Conclusion on ILSC’s possession claim concerning Mogila
The ILSC’s claim for possession concerning Currawillinghi
Was consent required under s 174 of the Land Act?
Section 47A of the Native Title Act
Does s 47A of the Native Title Act apply?
What is the consequence of s 47A applying?
Conclusion on the ILSC’s possession claim concerning Currawillinghi
Mr Anderson’s Cross-Claim
Claimed native title rights over Mogila
The six fee simple titles
The 14 Mogila leasehold titles
Mr Anderson’s claim based on adverse possession
Conclusion on Cross-Claim
ILSC’s injunction claim
Conclusion
JUDGMENT
Introduction
The plaintiff, the Indigenous Land and Sea Corporation (ILSC), is the registered proprietor of parcels of rural land in both NSW (Mogila) and in Queensland (Currawillinghi) (collectively, the lands). Prior to 1 February 2019, the ILSC was called the Indigenous Land Corporation (ILC). The ILC was established in 1995 under s 191A of the then Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (ATSIC Act). By force of s 191A(1) of the Aboriginal and Torres Strait Islander Act 2005 (Cth) (ATSI Act), the ILSC is now so named but retains the identity of its predecessor entity, the ILC.
The first and second defendants (Mr Anderson and Ms Sapotnik-Eckford respectively) are married and currently occupy the lands (and collect agistment fees for its use) without the consent of the ILSC. Mr Anderson is also known as Ghillar and Michael Eckford. Mr Anderson and Ms Sapotnik-Eckford represented themselves in the proceeding. The ILSC was represented by Mr Sean Docker of counsel.
The ILSC claims possession of the lands, based on a claim that the defendants have wrongly affected its right as registered proprietor to possess the lands. Alternatively, the ILSC sought an injunction to restrain the defendants’ continuing trespass. The ISLC seeks vacant possession of both Mogila and Currawillinghi in order to carry out assessments and work with a view to seeking expressions of interest from Indigenous people prior to making grants of the lands as authorised by s 191D of the ATSI Act.
By their defence dated 1 April 2021 and their amended defence dated 15 April 2021, the defendants oppose the relief sought on various grounds which will be addressed below. Essentially the defences are based on challenges to the validity of various steps taken by the ILSC (or the ILC) relating back to its first acquisition of Mogila and Currawillinghi and the lawfulness of various subsequent actions in relation to the land. The defences raise allegations of fraud and other claims.
Mr Anderson has filed a Cross-Claim by which he seeks judgment for the possession of Mogila and Currawillinghi and orders removing the ILSC from the land title registers in respect of the lands. The Cross-Claim raises issues of native title rights and interests in the lands as well as an asserted right based on adverse possession.
Before addressing the substantive issues in the proceeding, it is convenient to address Mr Anderson’s challenge to the Court’s jurisdiction, as well as refer to Mr Anderson’s challenge to the ILSC’s claim of privilege over certain documents.
The Court’s jurisdiction challenged
By notice of motion filed in Court with leave on the first day of the hearing (26 September 2022), Mr Anderson challenged the Court’s jurisdiction to determine the ILSC’s application. Mr Anderson relied upon an affidavit dated 21 September 2022 by him, which was filed in Court with leave on 26 September 2022. Mr Anderson also relied upon parts of an earlier affidavit by him dated 5 July 2021, which was filed on 7 July 2021 (and refiled on 21 July 2021). The Court said that it would hear and determine the motion at the outset of the hearing and provide reasons for its decision in the final judgment. These are the reasons why the motion was dismissed, with an order that the costs of the motion be the plaintiff’s costs in the cause (vis à vis Mr Anderson alone).
As noted above, Mr Anderson represented himself. He has considerable experience as a litigant in various proceedings in various courts, sometimes legally represented and sometimes representing himself. He also has a law degree and practised as a solicitor for several years. I understand, however, that he does not currently hold a practising certificate. He presented his challenge to the Court’s jurisdiction (and his case generally) courteously and genuinely tried to assist the Court as best he could as a litigant in person.
Determination of Mr Anderson’s challenge to the Court’s jurisdiction in a manner favourably to him effectively requires him to demonstrate why s 23 of the Supreme Court Act 1970 (NSW) is displaced. That provision states that the Court “shall have all jurisdiction which may be necessary for the administration of justice in New South Wales”.
Another important point to note at the outset is that, although Mr Anderson challenges the Court’s jurisdiction on various grounds, he did not contest the ILSC’s claim that s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) applied so as to empower the Court to exercise the original jurisdiction of the Supreme Court of Queensland to grant the relief sought by the ILSC in respect of the lands. Indeed in [1] of their defence filed on 1 April 2021 the first and second defendants gave their express concurrence to the ILSC’s claim regarding jurisdiction under that Act.
It is convenient to set out the orders sought by Mr Anderson in his motion (without alteration):
1 That the originating process by the Indigenous Land and Sea Corporation be dismissed in accordance with the NSW Uniform Civil Procedure Rules, Rule 12.11, 1(g)
2 That the claim by the Indigenous Land and Sea Corporation be dismissed on the grounds that the Euahlayi/Yawaalaraay Nation falls within the definition of, Interpretation, 1 (b) of the Foreign States Immunities Act 1985.
3 Tat this court make a declaration that to proceed with the plaintiff’s case without this court having the competency to adjudicate on Euahlayi laws and customary practices will prejudice the Défense of the First Defendant Michael Anderson and thus be in violation of section of the Commonwealth Racial Discrimination Act 1975.
4 That this court make a declaration that this case cannot proceed without engaging ceremonially educated Aboriginal Senior law men and women who hold the sacred celestial knowledge law and customs.
5 That the court make a declaration that the First named Defendant Michael Anderson’s Nationality is Euahlayi/Yawaalaraay (hereinafter Euahlayi) Dthane (man)
6 That the court make a declaration that the first named defendant Michael Anderson (tribal birth name Ghillar) aka Michael Eckford (Registered Birth name) is the recognised Leader of the Euahlayi/Yawaalaraay Nation as recognised by the Foreign Sovereign Head of the Commonwealth of Australia, the late Queen Ngudthy 11, (for the purpose of observing Euahlayi law and customary practice. It a sign of respect not to name a deceased person) In regard to the recognition of the First Defendant See Cross Claim affidavit of Michael Anderson dated July 21, 2021, to Case No.2020/00363972 annexure C.
7 The Euahlayi/Yawaalaraay Nation does not submit to the jurisdiction of this court but are making this submission in accordance with section 10 (7) (b) of the Foreign States Immunities Act 1985. That is: Section 7) A foreign State shall not be taken to have submitted to the jurisdiction in a proceeding by reason only that:
(a) it has made an application for costs; or
(b) it has intervened, or has taken a step, in the proceeding for the purpose or in the course of asserting immunity.
8 That this court make a declaration that to proceed with this case number 2020/00363972 will violate section 10 of the Racial Discrimination Act 1975 on the grounds that the court fails in its ability to consider Euahlayi Laws and Customs because these laws and Customs belong to a Foreign Nation who have never been Conquered, ceded, nor acquiesced.
9 Further to this, I respectfully submit that this court does not have jurisdiction to consider the origins of Euahlayi/Yawaalaraay ‘celestial law’ that establishes the laws and Customary practises of the Bhurrah (Peoples) within the boundaries as they are and always will be independent clans’ territories within that Euahlayi/Yawaalaraay boundary. This is a matter that falls within the same category as ecclesiastical law and does not fit within the scope of civil and common law jurisdiction.
There is a fundamental inconsistency in Mr Anderson’s challenge to the Court’s jurisdiction. He seeks to have the plaintiff’s proceeding dismissed yet, on the other hand, he presses his Cross-Claim and also seeks various declaratory orders as set out in his motion.
In brief, the challenge to jurisdiction raises the following four matters:
(1)Whether the Foreign States Immunities Act 1985 (Cth) applies.
(2)Whether the Pacific Islanders Protection Act 1872 35 & 36 Vict c 19 (Imp) and Pacific Islanders Protection Act 1875 38 & 39 Vict c 51 (Imp) apply.
(3)Related to issue (2), whether Mr Anderson can claim a sovereignty which takes him outside the Court’s jurisdiction.
(4)Whether the Court lacks competency and capability to adjudicate on Euahlayi laws and customary practices.
It is convenient to address each of those matters in turn.
(1) Foreign States Immunities Act
The Foreign States Immunities Act provides for a general immunity of a foreign State from the jurisdiction of Australian courts, except as provided by or under the Act.
There are several reasons why Mr Anderson’s reliance upon this legislation is misconceived. First, there is the fact that Mr Anderson is a party to these proceedings in his personal capacity, being a person occupying the lands without the permission of the registered proprietor. The ILSC did not challenge Mr Anderson’s claim to be the ceremonial Elder of the Ghurrie Clan and recognised ceremonial Elder and Leader of the Euahlayi Nation. The fact remains, however, that he is sued in his personal capacity. He personally does not qualify as a “foreign State” within the definition of that expression in s 3 of the Act, which means:
… a country the territory of which is outside Australia, being a country that is:
(a) an independent sovereign state; or
(b) a separate territory (whether or not it is self-governing) that is not part of an independent sovereign state.
Even if it be assumed for the sake of argument that the relevant State is the Euahlayi Nation and not Mr Anderson personally, the territory to which that Nation relates is not territory which is “outside Australia” for the purposes of the definition of “foreign State” in s 3. The term “Australia” is defined in s 3 as:
when used in a geographical sense, includes each of the external Territories.
There can be no question that the reference to “outside Australia” in the definition of “foreign State” is a reference to the country of Australia in a geographical sense. Thus, even though Mr Anderson asserts that the Euahlayi Nation has never been part of Australia in the sense of never having ceded its sovereignty, geographically speaking that Nation’s territory is physically part of Australia.
Secondly, even if, contrary to the above, Mr Anderson could overcome these significant threshold obstacles to his reliance upon the Foreign States Immunities Act, the effect of s 14(1) of that Act is that a foreign State is not immune in a proceeding to the extent to which the proceeding concerns:
(a) an interest of the State in, or the possession or use by the State of, immovable property in Australia; or
(b) an obligation of the State that arises out of its interest in, or its possession or use of, property of that kind.
There is no doubt that this proceeding relates to the possession or use of immovable property in Australia.
Thirdly, and for completeness, it is also relevant to note the effect of s 10(6)(b) of the Act. It provides that, subject to ss 10(7), (8) and (9), a foreign State may submit to the jurisdiction in a proceeding by inter alia “intervening in, or taking a step as a party to, the proceeding”. As noted above (assuming contrary to the above that Mr Anderson personally is a foreign state), Mr Anderson has taken various active steps as a party to the proceeding, including filing a defence, an amended defence, evidence, and a notice of motion challenging the plaintiff’s claims of privilege in respect of certain documents. These various steps (which are distinct from the motion which challenges jurisdiction) cannot be described as steps taken in “the proceeding for the purpose or in the course of asserting immunity”, as referred to in s 10(7)(b).
(2) Pacific Islanders Protection legislation
As Mansfield J pointed out in Walker v South Australia (No 2) (2013) 215 FCR 254; [2013] FCA 700 at [54], this Imperial legislation was passed to protect the Indigenous peoples of the islands of the Pacific Ocean from kidnapping for the purposes of labour, a practice which is sometimes described as “blackbirding”. The preamble to the 1872 legislation expressly refers to “natives of islands in the Pacific Ocean, not being in Her Majesty’s Dominions” (emphasis added). Section 2 of that Act defined “Australasian Colonies” as including the colonies of New South Wales and Queensland. Those colonies were at the relevant time part of Her Majesty’s Dominions.
The 1872 Act provided in s 3 that it was unlawful for British vessels to carry native labourers unless they had a licence granted, relevantly, by a governor of any of the Australasian Colonies.
The fact that the legislation was directed to islands and places in the Pacific Ocean not being within Her Majesty’s Dominions is also made abundantly clear in s 6 of the 1875 Act. That provision empowered the making of Orders in Council to establish courts of justice with jurisdiction over Her Majesty’s subjects in such islands and places and to impose penalties etc.
I respectfully agree with Mansfield J’s conclusions and reasoning in Walker at [56] as to why this legislation does not apply to Indigenous Australians, including Mr Anderson and/or the Euahlayi Nation:
On their own terms, those Acts do not apply to the Indigenous people of Australia. Their application is clearly with respect to the peoples of the islands in the Pacific Ocean, who did not have the protection of the law. Hence, jurisdiction to try the offences created by the Acts was conferred upon the Supreme Courts of the Australasian colonies. Further, their application is with respect to the islands of the Pacific Ocean “not being within her Majesty’s dominions”. As at the passing of the 1872 PIP Act, the Province of South Australia had been for some time within Her Majesty’s dominion, as had all the other colonies of Australia.
Similar reasoning was applied by McKerracher J in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [70], with which I also respectfully agree.
(3) Sovereignty
Order 6 sought by Mr Anderson in his motion appeared to raise a claim that the Euahlayi Nation constituted a separate sovereign nation in relation to which the Court had no jurisdiction. This claim also appeared to be supported by parts of Mr Anderson’s affidavit dated 21 September 2022, which included claims that “Sovereignty and Eminent Dominion over the said lands and waters of the Ghurriebhurrah are reserved to the ceremonial Elders” (at [12]) and that “the sovereignty of the Euahlayi/Yawaalaraay Nation continues and that we had Laws and Customs of our own” (at [19]).
In oral address, Mr Anderson relied upon a “Declaration” and a “Declaration of Independence”, which documents appear to have been created on or around 1 July 2013. The Declaration states that the Euahlayi are the original peoples of the land and waters within certain defined territories identified in Sch 1 to the Declaration. The Declaration is signed by various persons. The Declaration of Independence, which is also signed by various persons, states that the “individual members of the Euahlayi State, representing each and all of our clans, are by virtue of our natural and historic inherrent (sic) right, resolve and declare the continuing sovereignty of the Euahlayi Nation, to be henceforth known as the ‘Euahlayi Peoples Republic’”.
Mr Anderson said that copies of both Declarations had been sent to Her Majesty. Mr Anderson did not tender a copy of the letter which he stated he received in reply from Buckingham Palace.
Notwithstanding these matters, and the fact that Mr Anderson also advanced arguments concerning the separate sovereignty of the Euahlayi people in his oral address in chief on the motion, in his oral address in reply Mr Anderson said that “… our argument is not about whether we’re a – about sovereignty. We’re not – that’s not the argument here. The argument here is about whether the Court has the capacity to deal with Yuwaalaraay law and make a decision over the land and the people who belong to the land as to whether or not they are entitled to be on that land. That’s the question here”.
For completeness, however, I will now explain why the sovereignty arguments raised elsewhere by Mr Anderson must fail (as must also be his related reliance on s 10 of the Racial Discrimination Act 1975 (Cth)).
To the extent that Mr Anderson advanced an argument that the Court lacked jurisdiction because the Euahlayi People had a separate sovereignty, the argument must be rejected. I respectfully agree with the reasoning of Mansfield J in Walker at [43] to [47] which is squarely in point:
43 The contention that the Indigenous peoples of Australia constitute a sovereign nation or nations, has been expressly rejected. In Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403 at 408, Gibbs J, with whom Aicken J agreed, held:
The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the laws of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.
44 That is consistent with Mabo (No 2). The rights recognised with respect to native title in Mabo (No 2) are, at common law, subject to statutory modification: see at 110-111 per Deane and Gaudron JJ:
Like other legal rights, including rights of property, the rights conferred by common law native title and the title itself can be dealt with, expropriated or extinguished by valid Commonwealth, State or Territorial legislation operating within the State or Territory in which the land in question is situated. To put the matter differently, the rights are not entrenched in the sense that they are, by reason of their nature, beyond the reach of legislative power.
45 Mabo (No 2) reveals that, upon the settlement in New South Wales, and by extension later in South Australia, the English settlers brought with them the law of England, so that, at 38 per Brennan J:
[t]he common law thus became the common law of all subjects within the Colony who were equally entitled to the law’s protection as subjects of the Crown. ... Thus the Meriam people in 1879, like Australian Aborigines in earlier times, became British subjects owing allegiance to the Imperial Sovereign entitled to such rights and privileges and subject to such liabilities as the common law and applicable statutes provided.
46 Mason CJ in Coe v Commonwealth [1993] HCA 42; (1993) 68 ALJR 110 at 116 confirmed that Mabo (No 2) is inconsistent with the notion of sovereignty in the Aboriginal people of Australia:
Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are “a domestic dependent nation” entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law.
47 That also follows from a series of decisions that say that the application of the laws of the various Australian Parliaments to Indigenous Australians does not depend on the acquiescence or consent of those people: see Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45 at 48-9 per Mason CJ; McDonald v Director of Public Prosecutions (2010) 26 VR 242 at [6] and [16] per Ashley JA and [191] per Neave JA, Redlich JA agreeing; Jones v Public Trustee (Qld) [2004] QCA 269; (2004) 209 ALR 106 at [14]-[15] per McPherson JA, Williams and Jerrard JJA agreeing; R v Buzzacott [2004] ACTSC 89; (2004) 154 ACTR 37 at [3]-[17] per Connolly J.
It may be noted that similar reasoning was relied upon by Philippides J in Ngurampaa Ltd v Balonne Shire Council [2014] QSC 146 at [12]–[18] in rejecting a similar claim advanced by Mr Anderson on behalf of the plaintiff in that case. I respectfully agree with and adopt her Honour’s reasoning as well as the similar reasoning of McKerracher J in Prior at [64] to [71].
Nothing said above is intended to dispute the sovereignty of Aboriginal and Torres Strait Islander peoples in a spiritual sense. That particular concept of sovereignty is well-reflected in the following extracts from the Uluru Statement from the Heart, of which the Court takes judicial notice (emphasis in original):
Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent lands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.
This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.
(4) Court’s competence or capacity
As noted immediately above, in his oral address in reply, Mr Anderson identified his central argument as whether the Court has the capacity (or competency) to deal with the Euahlayi Nation’s law. That matter is also raised in orders 3, 4, 8 and 9 of his motion, and are elaborated upon in various parts of his affidavit dated 21 September 2022. For example, in that affidavit he claimed that Euahlayi laws and customs are foreign to the English common law, are sui generis and the Court lacked jurisdiction to “define and concluded (sic) the rights and interests of the Ghurrie clan under Euahlayi Law and Customs which are at the heart of the first defendants (sic) Défense and Cross Claim” (without alteration). He submitted that these matters were “more likely to be found in ecclesiastical laws”. He added that, because the Court could only adopt what he described as “a Eurocentric legal view of this case”, this prejudiced the Ghurrie clan’s rights and interests from being considered without apprehended bias.
It is well recognised that Australian courts may be confronted with particular difficulties when they need to address and determine traditional laws and customs relied upon by Aboriginal and Torres Strait Islander persons. For example, the practical and evidentiary difficulties of establishing the nature and incidents of both common law and statutory native title have long been acknowledged (see generally the discussion in Australian Law Reform Commission, Recognition of Aboriginal Customary Laws (June 1986) [622]ff; Christos Mantziaris and David Martin, Native Title Corporations: A Legal and Anthropological Analysis (2000, The Federation Press) chs 1 and 2; Melissa Perry and Stephen Lloyd, Australian Native Title Law (2nd ed, 2018, LawBook Co) at [82.10]). But that does not mean that the Court lacks jurisdiction to hear and determine such matters, having regard to the laws of evidence (including any relevant statutory modifications).
In Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 (Mabo (No 2)), when addressing a common law native title claim, Brennan J made clear that any such claim needed to be supported by admissible evidence. Thus, at 58 his Honour said:
The nature and incidents of native title must be ascertained as a matter of fact by reference to those [traditional] laws and customs.
His Honour then added that “it is necessary to ascertain by evidence the nature and incidents of native title” (emphasis added).
Further, at 62, Brennan J expressly acknowledged that, in determining the nature and incidents of native title rights and interests, a “court may have to act on evidence which lacks specificity …”.
The difficulties of proof which may confront litigants in proving such matters was acknowledged by the plurality (Gleeson CJ, Gummow and Hayne JJ) in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58 at [79] and [80]:
79 As foreshadowed at the outset of these reasons, much turns on a proper understanding of the reference in par (a) of the definition to "traditional" laws acknowledged and "traditional" customs observed. For the reasons given earlier, "traditional" does not mean only that which is transferred by word of mouth from generation to generation, it reflects the fundamental nature of the native title rights and interests with which the Act deals as rights and interests rooted in pre-sovereignty traditional laws and customs.
80 It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.
The evidentiary difficulties of establishing native title rights and interests have also been acknowledged in cases unrelated to land tenure. For example, in some cases Indigenous peoples have raised native title rights and interests as a defence to criminal prosecution. Thus, in Mason v Tritton (1994) 34 NSWLR 572, the Court of Appeal alluded to those difficulties in rejecting the appellant’s claim that he had a defence to a charge under the Fisheries and Oyster Farms (General) Regulation 1989 (NSW) because he had a traditional right to fish in relevant waters and this right constituted a native title recognised at common law, applying the principles in Mabo (No 2). The defence was rejected because of the appellant’s failure to give evidence of any recognisable system of traditional laws and customs governing the taking of abalone or how his fishing activities fell within the scope of such rules. With specific reference to the evidentiary difficulties of establishing genealogy tracing back to 1788, Kirby P noted at 588 that it was “next to impossible” to expect that Aboriginal peoples will ever be able to prove, by recorded details, their precise genealogy going back to that time, having regard to “their many deprivations and disadvantages following European settlement of Australia and the limited record keeping of the earliest days”. His Honour added at 588 that, in view of these circumstances, it would be unreasonable and unrealistic for the common law of Australia to demand such proof for the establishment of a claim to native title because the “common law, being the creation of reason, typically rejects unrealistic and unreasonable principles”.
Some of the difficulties in proving traditional laws and customs have been addressed by statute. For example, at the Commonwealth level, up until 1998, s 82(3) of the Native Title Act 1993 (Cth) provided that in exercising jurisdiction under that Act the Federal Court was not bound by the rules of evidence. Following amendments in 1998 to that Act, s 82(1) now provides that the Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.
At both a Federal and a State level, it is also relevant to note ss 72 of both the Evidence Act 1995 (Cth) of the Evidence Act 1995 (NSW), which provide that the hearsay rule does not apply to “evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group”.
Finally, reference should be made to Levine J’s judgment in Wilson v Anderson [1999] NSWSC 8; (1999) 156 FLR 77. The plaintiff in that case sought a declaration from the Supreme Court that any native title that may have existed over a particular parcel of land was extinguished or, in the alternative, suspended. Mr Anderson was also the first defendant in that proceeding. He sought a stay of the proceedings in the Supreme Court. Although Levine J rejected Mr Anderson’s contention that the proceedings should be stayed because the Federal Court had exclusive jurisdiction by dint of s 81 of the Native Title Act, his Honour granted a stay on discretionary grounds. It was made clear at [175] that Levine J accepted that the plaintiff had the right under s 23 of the Supreme Court Act to seek the relief in the Supreme Court.
In sum, therefore, the evidentiary and forensic difficulties which are frequently presented in cases which involve issues of traditional laws and customs of Indigenous people are well recognised but they do not, of themselves, deprive the Court of jurisdiction to hear and determine proceedings which raise such issues. In particular, those difficulties do not provide a sufficient basis for denying the Court its obligation to exercise “all jurisdiction which may be necessary for the administration of justice”, as stated in s 23 of the Supreme Court Act.
Conclusion to challenge on jurisdiction
For these reasons, Mr Anderson’s motion was dismissed and it was ordered that the costs of the motion be the plaintiff’s costs in the cause vis à vis the first defendant.
Mr Anderson’s challenge to the plaintiff’s claim of privilege over certain documents
On 23 September 2022, Mr Anderson filed a notice of motion by which he challenged the privilege claimed by the ILSC over letters and other correspondence between itself and the lawyers for the liquidator for Ngurampaa Ltd (Ngurampaa) (the role of which in these proceedings I will address further below), Mr Morgan Chubb of Clout & Associates, contained within Subpoena Packet S-4.
At the outset of the hearing on 26 September 2022 I indicated my intention to refer this motion to the Common Law Duty Judge. Neither party objected to that course.
During the course of the hearing before the duty judge, Cavanagh J, on 27 September 2022, the parties settled this matter and consent orders were entered by his Honour.
There was no order as to costs, and it was noted that the parties intended to pay their own costs as per the signed consent orders.
The substantive proceeding
The ILSC’s claim for possession arises in the context of it wishing to perform some of its statutory functions. The ILSC’s functions include to grant interests in land to Aboriginal or Torres Strait Islander Corporations and to acquire by agreement interests in land for the purpose of making such grants pursuant to ss 191C(a) and 191D of the ATSI Act (acquisition function).
The ILSC also has functions under ss 191C(b) and 191E of the ATSI Act inter alia to carry on or arrange for the carrying on of land management activities in relation to land held by the ILSC or under agreements with the holders of land under agreements with the ILSC (management function). Under s 191H(1) of the ATSI Act, the ILSC has a general power to do all things that are necessary or convenient to be done for, or in connection with, the performance of its functions.
Pleadings
By its Statement of Claim (SOC) filed 23 December 2020, the ILSC claims possession of the lands because the defendants have wrongfully affected the ILSC’s right as registered proprietor to possess the lands. Alternatively, the ILSC seeks an injunction to restrain the defendants’ continuing trespass. The ILSC seeks vacant possession of Mogila and Currawillinghi in order to carry out assessments and work (including repairs) on them, seek expressions of interest from Indigenous people and then make grants of the lands as part of its divestment process.
The defendants filed two defences, on 1 April 2021 (Defence) and 15 April 2021 (Amended Defence), which are said to be cumulative. Neither document was in correct form and each was a narrative rather than a pleading. Moreover, both documents set out the terms of alleged conversations which were not supported by admissible evidence. The defendants:
(1)admit the ILSC’s title to Mogila and Currawillinghi (SOC [5]–[6]; Defence [25]–[26]), do not plead to the ILSC’s entitlement to immediate and exclusive possession in SOC [7] and do not contest that they have occupied Mogila and Currawillinghi since at least 16 April 2019 (SOC [8]), being the date the ILSC became the registered proprietor of Mogila for a second time;
(2)allege that the ILSC has no standing because it transferred the lands (to Ngurampaa (now deregistered)) pursuant to a Deed of Grant dated 27 January 2000 (Currawillinghi Deed) and thereby lost all its rights in the lands, despite the right to lodge a caveat being conferred by clause 5.2 of the Currawillinghi Deed: Defence [4], [18]–[20], [24]; Amended Defence [10]–[12]. It is also alleged that errors in the ILSC’s caveat over Mogila, which refers to a Deed of Grant dated 22 June 1998 (Mogila Deed), void any equitable interest of the ILSC in Mogila: Amended Defence [26]–[34];
(3)allege that the grant of Mogila to Ngurampaa was void because it was procured by fraud and other misconduct and the traditional owners who signed for Ngurampaa were semi-literate and did not have independent legal advice or anyone explain the transaction to them: Defence at [6]–[21]; Amended Defence [14]–[24], [31];
(4)allege that the lands were purchased by the ILSC for the purpose of redress and compensation, the liquidator of Ngurampaa had no right to release the lands because the lands were not an asset of Ngurampaa’s and so the ILSC has not proved its title (as the ILSC acquired lands from the liquidator of Ngurampaa): Defence [27]–[34]. It is also alleged that the transfer from the liquidator of Ngurampaa, Mr Chubb, to the ILSC was a contempt of the Supreme Court: Amended Defence at [36]–[43];
(5)allege that the claim for possession against a traditional owner is contrary to the ATSI Act: Amended Defence [2]–[9]; and
(6)allege that it was necessary for the ILSC to obtain the approval of the Governor in Council under s 174 of the Land Act 1994 (Qld) for the transfer of Currawillinghi to it on 10 July 2019: Defence [26].
On 1 April 2021, Mr Anderson filed a Cross-Claim in which he sought judgment for the possession of Mogila and Currawillinghi and orders for the removal of the ILSC from the land titles registers in both NSW and Queensland in respect of those lands. This appears to be based in part upon Mr Anderson’s claims to ownership of the lands: Cross-Claim at [2]–[8]. There is a reference in the Statement of Cross-Claim to a native title claim over land in Queensland (NT Claim) that included Currawillinghi: Cross-Claim at [8]. The NT Claim has since been determined by a consent determination of native title by the Federal Court of Australia on 22 November 2021 (see Knox on behalf of the Yuwaalaraay/Euahlayi People v State of Queensland [2021] FCA 1440).
The Cross-Claim also repeats allegations from the two defences. At [18] and [27], it is claimed that Mr Anderson and Ms Sapotnik-Eckford took full management of the lands with the full approval of Ngurampaa. The Cross-Claim contains assertions about the management and use of the lands and agistment arrangements with third parties: at [29]–[47]. A claim based on adverse possession is raised. The ILSC filed a detailed defence to the Cross-Claim on 8 June 2021, which need not be summarised apart from noting that the ILSC contested many parts of the Cross-Claim.
The parties’ evidence summarised
Most of the relevant facts are established by documents which were included in the six volumes of the Court Book. At the Court’s direction many documents were removed from the folders because they were not relied upon by any party.
It is desirable to summarise the relevant parts of the parties’ affidavits. It should be noted that large parts of the defendants’ affidavits were ruled inadmissible on various grounds, and the Court ruled that many paragraphs should be read as submissions only.
It should be made clear that the summary of the cross-examinations of the ILSC’s witnesses are quite brief. That is because only limited reference was made to that part of the evidence in the defendants’ closing addresses.
The ILSC’s affidavits
(a) Mr Trevor Edmond
Mr Edmond is the Group General Counsel of the ILSC, a position he has held since October 2018. Mr Edmond described the land titles relating to both Mogila and Currawillinghi. He also described how Mogila and Currawillinghi were acquired by the ILC and the subsequent grant of those lands to Ngurampaa on 22 June 1998 and 27 January 2000 respectively.
Mr Edmond described the winding up of Ngurampaa on 20 July 2015 and the appointment of Mr Chubb as liquidator. Mr Edmond also described how the lands in Mogila and Currawillinghi were transferred back to the ILC under a Deed of Settlement and Release dated 24 January 2019 between the ILC, Ngurampaa and Mr Chubb.
Mr Edmond described the role of Mogila Merino Stud Pty Ltd (Mogila Merino Stud), a wholly owned subsidiary of the ILC, in raising merino sheep on both Mogila and Currawillinghi, including the surrender of the lease of Currawillinghi by Mogila Merino Stud in September 2002 and the ILC’s decision not to renew the leases to Mogila Merino Stud.
Mr Edmond described various dealings between the ILC (and its successor the ILSC) and the defendants concerning Mogila and Currawillinghi.
Mr Edmond was cross-examined by both Mr Anderson and Ms Sapotnik-Eckford. Parts of the cross-examination related to matters of which Mr Edmond had no personal knowledge and some other parts related to matters of law, not fact. Mr Edmond was cross-examined at some length regarding the dealings between the ILC and Ngurampaa, and the involvement of Lovett & Green solicitors in those dealings. Lovett & Green acted for Ngurampaa but their fees were paid by the ILC. These dealings occurred before Mr Edmond took up his position in 2018.
I accept Mr Edmond’s evidence.
(b) Mr Christopher Martin
Mr Martin is an Operations Manager of the ILSC, a position he has held since 15 July 2019. He gave evidence regarding certain dealings he had with Mr Anderson. Those dealings included his involvement in handling complaints received from members of the local Indigenous community that Mr Anderson would not permit them to come onto the land at Currawillinghi. He also said that he had received a telephone call from sheep farmers (Mr Jack Johnston and Ms Michelle Johnston) who told him that they had an agistment agreement with Ngurampaa which allowed them to agist sheep on Currawillinghi.
There was a brief cross-examination of Mr Martin by Mr Anderson in which Mr Martin confirmed that he had volunteered to make an affidavit in the proceeding. Mr Martin was also briefly cross-examined by Ms Sapotnik-Eckford.
I accept Mr Martin’s evidence.
(c) Mr Mark Denning
Mr Denning is the Eastern Division Manager of the ILSC, a position he has held since August 2018. Between 2010 and 2018 he was an Operations Manager of the ILC. Mr Denning gave evidence of various dealings he had with Mr Anderson regarding the divestment of Mogila and Currawillinghi. They included a telephone conversation they had on 6 February 2020 in which he told Mr Anderson that the ILSC had become the registered owner of the lands and that the ILSC would be happy to assist Mr Anderson to relocate from those lands. He deposed that Mr Anderson told him that he would not be leaving the properties because he held the “original title” to them.
Mr Denning described another telephone conversation he and Mr Martin had with Mr Anderson on 2 March 2020. Mr Denning also annexed to his affidavit copies of letters dated 5 August 2020 from the ILSC’s solicitors to the defendants concerning the ILSC’s offer to provide reasonable assistance so that Mr Anderson and Ms Sapotnik-Eckford could vacate the lands.
Mr Denning gave evidence regarding various complaints by members of the local Indigenous community in respect of Mr Anderson, including a claim that Mr Anderson was denying some Indigenous people access to the lands.
Mr Denning gave detailed evidence regarding the various steps taken by the ILSC in divesting a property to an Aboriginal or Torres Strait Islander Corporation, which he said was normally done in accordance with a process detailed in an internal manual called the “Operations Manual – Divestment Program”.
Mr Denning was cross-examined at some length by both Mr Anderson and Ms Sapotnik-Eckford regarding the divestment process and the complaints regarding denial of access.
I accept Mr Denning’s evidence.
(d) Mr Garry Cook
Mr Cook is a self-employed Farm Management Consultant. He formerly held the position of Executive Director – Agribusiness with the ILC, a position he held between March 2017 and July 2018. In the period 1999 to February 2017, Mr Cook was the Director – Business Operations and a General Manager of the ILC.
Mr Cook gave detailed evidence regarding his role between March 1999 and February 2017 in overseeing the management of various ILC agricultural businesses, including the business conducted by Mogila Merino Stud. He described how the infrastructure on both Mogila and Currawillinghi was “somewhat run down” and that the fencing, yards, homesteads and equipment on the lands did not appear to have been updated for at least ten years. He attributed this to the difficulties of the financial position of Mogila Merino Stud, which was affected by sustained drought and record low wool and sheep prices between 1998 and 2001. He deposed that he was aware of a loan from the ILC to the Mogila Merino Stud to fund the initial establishment of its business and to acquire livestock and machinery. He said that he was not aware of any loan between Mogila Merino Stud and Ngurampaa. Mr Cook also gave evidence of his involvement in discussions between the ILC, Mogila Merino Stud and Ngurampaa in early 2002 regarding the option of renewing the leases to Mogila Merino Stud.
Mr Cook was cross-examined at some length by Mr Anderson, and also more briefly by Ms Sapotnik-Eckford. It is unnecessary to summarise the cross-examination because none of it was relied upon by the defendants in their closing addresses.
I accept Mr Cook’s evidence.
The defendants’ affidavits
The defendants relied upon the following affidavits in the substantive proceeding:
(a)affidavits by Mr Anderson dated 5 July 2021, 19 October 2021, 27 October 2021 and 21 September 2022;
(b)affidavits by Ms Sapotnik-Eckford dated 30 May 2021, 27 October 2021 and an undated affidavit filed on 23 September 2022;
(c)an affidavit dated 20 September 2021 by Mr Jamie Cubby;
(d)an affidavit dated 22 September 2021 by Mr Raymond Cubby;
(e)an affidavit dated 27 September 2021 by Mr Leon Winters;
(f)an affidavit dated 11 October 2021 by Ms Roslyn Forrester; and
(g)an affidavit dated 27 October 2021 by Ms Eleanor Mary Williams-Gilbert.
Large parts of the affidavits of Mr Anderson and Ms Sapotnik-Eckford in particular were ruled to be either inadmissible or only to be read as submissions. It is unnecessary to repeat those rulings as they are set out in the transcript. I have taken those rulings into account in summarising the defendants’ affidavits.
(a) Mr Anderson’s evidence summarised
In his first affidavit (dated 5 July 2021) Mr Anderson described his ancestry. He is the great great grandson of Sarah Eckford, who is the bloodline sister of King Tyson of Currawillinghi. He described how as a child he was taken by his grandmother to Mogila, where he spent time playing, fishing and hunting. He gave unchallenged evidence that he is accepted and recognised as the leader of the Ghurrie clan and the Euahlayi Nation. He is also the ceremonial Elder who has responsibility for providing guidance to the Euahlayi Nation of the rules associated with customary practices.
Mr Anderson described Mogila and Currawillinghi as part of the ancient homelands of the Ghurrie clan of the Euahlayi Nation.
He described his involvement in the signing of a Declaration of Independence by the Euahlayi Nation.
In his second affidavit (dated 19 October 2021 and which is evidence in reply on Mr Anderson’s Cross-Claim), Mr Anderson described the composition of the Euahlayi Nation, which is divided into four skin groups. He also described at some length the laws and customs of the Euahlayi Nation.
Mr Anderson said that his Cross-Claim was based upon he and the Ghurrie skin group having “an inherit right of possession through a pre-existing right of Eminent Domain, which is vested in the Elders in accordance with the ancient rule which is that the lands are held in title by skin group leaders for the present and future skin group members as constituted by bloodline descent” (without alteration).
In support of his claim that there were pre-existing equitable rights which were not defeated by the registered proprietorship of ILSC Mr Anderson explained that the equitable interests the subject of the Cross-Claim are based on two matters which he described as follows:
(1)the pre-existing inherited rights to the lands of the Traditional Owners under their laws and customs; and
(2)“the material facts evidence the Traditional Owner’s efforts to improve the land thereby increasing the values of [Mogila and Currawillinghi]”.
The bulk of Mr Anderson’s second affidavit was treated as submissions only.
Mr Anderson’s third affidavit is dated 27 October 2021. Mr Anderson again described himself as the leader of the Euahlayi Nation. He described his childhood and upbringing, including the steps leading up to him being a Senior Lawman and Elder of the Euahlayi Nation. He described how he was one of a small group of Indigenous persons who established the Aboriginal Tent Embassy in Canberra in early 1972. He also described various senior Government appointments held by him from 1973 onwards, including his role as Special Envoy and personal advisor to Prime Minister Whitlam on human rights in respect of Aboriginal Peoples.
Mr Anderson said that he studied Law, Politics and History at the University of New South Wales and took up a position in 1979 as an instructing solicitor in the NSW Department of Public Prosecutions.
I will not summarise the rest of Mr Anderson’s extensive and impressive achievements. There is no doubt that he is a respected and accomplished Aboriginal Elder and there was no challenge to his claim to be the leader of the Euahlayi Nation.
In his final affidavit (dated 21 September 2022), Mr Anderson, in effect, set out his submissions in support of his defence and Cross-Claim. Large parts of this affidavit were treated as submissions only for the purposes of the substantive proceeding.
Mr Anderson was cross-examined. The key relevant matters are as follows. Mr Anderson said that he lived at Currawillinghi between 2002 and 2005, when he and Ms Sapotnik-Eckford then took up residence on Mogila. He confirmed that he was not personally involved in the transfer of Mogila and Currawillinghi to Ngurampaa, however, he became a director of Ngurampaa in 2001. Mr Anderson marked on a map of Currawillinghi the location of the homestead where he and his wife lived between 2002 and 2005. He confirmed that Ms Kye Crow and her husband currently live in the homestead on Currawillinghi.
Mr Anderson identified various dwellings on Mogila by marking up a copy of a map. He confirmed that no one else lived on Mogila.
Mr Anderson denied that he ever refused Ms Mindy Gibbs or Mr Ronald Lane access to Mogila or Currawillinghi during the period 2005 to 2015.
Mr Anderson gave evidence of the agistment arrangements on Mogila and Currawillinghi leading up to Ngurampaa going into liquidation in 2015. At that time, he said that the only agistment arrangements were with Mr Johnston on Currawillinghi and Mr Max Mudford on Mogila. He also described his own farming activities on the lands between mid-2015 and February 2020. That primarily involved running about 40 head of cattle, adding that the farming business was conducted through a business called Ghurrie AG Pty Ltd.
Mr Anderson confirmed that in late 2019 or early 2020 he was contacted by someone from the ILSC and told that it now owned the lands and wished to have vacant possession. The person offered to pay the reasonable costs of he and Ms Sapotnik-Eckford relocating from the properties.
Mr Anderson also confirmed that Mr Jamie Cubby continued to run a small number of cattle on Currawillinghi.
There is no reason to doubt Mr Anderson’s credibility and sincerity. I accept the truthfulness of those parts of his affidavits which relate to factual matters and were admitted into evidence. That is not to say, however, that his evidence, where admitted, advanced his case in any significant way. Ultimately, his case falls to be determined by reference to documentary materials, to which I will return.
(b) Ms Sapotnik-Eckford’s evidence summarised
In her second affidavit (dated 27 October 2021), Ms Sapotnik-Eckford described how, since 2003, she and Mr Anderson managed Mogila and Currawillinghi. Ms Sapotnik-Eckford also gave evidence regarding the complaints received by ILSC concerning access to the lands.
Ms Sapotnik-Eckford gave extensive evidence regarding the state and condition of the two properties. This evidence was admitted subject to relevance, while other parts of the second affidavit were admitted as submissions only.
Ms Sapotnik-Eckford provided two other affidavits (one dated 30 May 2021 and the other undated but filed on 23 September 2022). Large parts of these affidavits were treated as submission only or admitted subject to relevance. The first affidavit was largely in the nature of a chronology. In the third affidavit, Ms Sapotnik-Eckford described the work which she and Mr Anderson carried out at Currawillinghi since September 2002. She said the house “was in a devastating state”. She also described the repairs and maintenance carried out at the Mogila homestead, as well as other improvements to the shearing shed, border and internal fences, dams and the bore.
Ms Sapotnik-Eckford provided extracts from financial statements from Ngurampaa between the period 2003 and 2014, which showed the money spent by Ngurampaa on repairs and improvements during the relevant years.
Ms Sapotnik-Eckford was not cross-examined.
There is no reason to doubt Ms Sapotnik-Eckford’s sincerity or the truthfulness of her admissible evidence. The difficulty remains, however, in seeing how much of her evidence was relevant to the issues for determination.
(c) The evidence of the defendants’ other witnesses summarised
None of the other witnesses called by the defendants was required for cross-examination. Their relevant evidence may be summarised as follows.
Mr Jamie Cubby is a station hand and stockman. He is Indigenous. He said that over the last 20 years he had done voluntary work on Mogila with Mr Anderson, mustering sheep, cattle and goats. He said that he brings his family to Mogila and Currawillinghi for recreation, fishing, yabbying and hunting usually a couple of times a week. He said that he was not aware of Mr Anderson denying anyone access to Mogila to collect firewood if they asked for permission.
Mr Raymond Cubby is an Indigenous Elder. He has known Mr Anderson for many years. He is Mr Jamie Cubby’s uncle. He said that the ILC bought Mogila and Currawillinghi in 1998 and that he was “present at the handover and the signing of the Deed of Grant” (which I assume refers to the Mogila Deed and I also note that neither Mogila nor Currawillinghi were bought by the ILC in 1998). He said that to the best of his knowledge and belief he could not recall any independent practising lawyers present “at that time” explaining to the Traditional Owners explaining what was in the Deed of Grant (which again I assume is a reference to the Mogila Deed).
Mr Leon Winters is an Indigenous man. He gave evidence of traditional ceremonies being carried out on Mogila. He described Mr Anderson as the Senior Lawman for teachings about customary laws because he is the holder of “Euahlayi Law and Customary Practice”. He also referred to the native title claim concerning Currawillinghi and Mr Anderson’s key role in that proceeding.
Ms Roslyn Forrester is a Traditional Owner of Mogila and Currawillinghi. She was the elected President of Ngurampaa for more than four years from 27 May 2002. She described her involvement in a document entitled “Unconditional Grant of Chattels” between Mogila Merino Stud and Ngurampaa but she said that she did not see the list of chattels before signing the document on 27 May 2002. Ms Forrester also stated that she had never witnessed Mr Anderson refuse access to Mogila and Currawillinghi whenever Indigenous persons wished to access the properties to celebrate their “cultural well-beings”.
Ms Eleanor Williams-Gilbert described herself as a filmmaker, researcher and ecologist. Over 19 years she has spent extended periods of time on both Mogila and Currawillinghi. She annexed to her affidavit numerous photographs which she had taken to capture how various skin groups of the Euahlayi Nation enhance Mogila and Currawillinghi in diverse ways. She also attached photographs of various scarred trees and other cultural icons on Mogila. Numerous other photographs annexed to Ms Williams-Gilbert’s affidavit demonstrated the presence of many Euahlayi cultural or sacred sites in or near Mogila.
There is no reason to doubt the credibility of any of these additional witnesses. I accept their evidence (subject to the qualifications above regarding Mr Raymond Cubby’s evidence).
Background facts based on documentary evidence
The location of Mogila and Currawillinghi
The ILSC is the registered proprietor of:
(1)Mogila, which consists of 20 different titles which are identified in a Schedule to the SOC. 6 of those titles are held in fee simple, 13 of the titles are perpetual leases for pastoral purposes under the Western Lands Act 1901 (NSW) and the remaining lease is a perpetual conditional lease under the Crown Lands Act 1884 (NSW) and the Crown Lands Consolidation Act 1913 (NSW).
(2)Currawillinghi, which consists of one parcel of land known as Lot 7 in Crown Plan BLM458, which is held in fee simple.
Thirdly, it is claimed at [12] of the Statement of Cross-Claim that the liquidator admitted to a fraud when he transferred the land to the ILSC. I have explained above why the allegations of fraud by the liquidator are rejected.
Fourthly, it is alleged at [13] that the liquidator acted in contravention of orders of Senior Deputy Registrar Hedge who drew a distinction between the assets of Ngurampaa as opposed to the land. This is said to be supported by the claim made by Mr Rai in correspondence with the liquidator’s lawyer that the lands “are not assets of [Ngurampaa]”. I have explained above why this contention is rejected.
It is evident from the written submissions provided by Mr Anderson in support of his Cross-Claim that he also advances an argument that any equitable interest on the part of the ILSC “fails because of the Traditional Owners’ assertion of their pre-existing inherited ownership under Euahlayi Law and customs”. This appears to raise a claim of native title rights and interests over Mogila (in circumstances where, as noted above, there now exists a native title determination in respect of Currawillinghi).
Before addressing in a little more detail Mr Anderson’s claim based on common law native title rights and interests it is appropriate at this moment to record that his Cross-Claim and supporting written submissions put forward a second basis for the relief he seeks, namely a claim based on adverse possession. This claim relies upon the occupation of the lands by he and his wife since 2002 and the management role which they have performed on the lands since that time. I will return to address that second basis of the Cross-Claim in due course.
Claimed native title rights over Mogila
Any native title rights over Mogila have not been the subject of a determination under the Native Title Act. Therefore, Mr Anderson’s native title claim must arise at common law and be governed by cases such as Mabo (No 2).
A very real question arises whether sufficient evidence has been provided to enable an informed decision to be made as to whether native title rights exist in respect of Mogila and, if so, in whom. As noted above, the Statement of Cross-Claim was amended so as to move Ms Mavis May Eckford and 31 bloodline descendants of Sarah Eckford as cross-claimants. The particulars of the 31 bloodline descendants are not identified in the Statement of Cross-Claim. Although there are references in Mabo (No 2) to the possibility that native title rights and interests might be that of an individual, ordinarily those rights or interests belong to a community or group (see Mabo (No 2) at 52 per Brennan J; at 85, 88 and 109–111 per Deane and Gaudron JJ; and at 178–179 per Toohey J). The evidence before the Court leaves distinctly unclear the identities of the persons who comprise the community or group to which the claim is said to relate.
Let it be assumed (without deciding) that native title rights and interests do exist in relation to Mogila and the community or group to whom those rights relate has been adequately identified. The relevant issue then becomes whether those rights have been extinguished under the Native Title Act. This question must be addressed with reference to the different kinds of legal title comprising the 20 titles of which Mogila is comprised.
The six fee simple titles
Each of the 6 Mogila titles comprising a fee simple interest extinguish any native title rights in respect of those parcels (see Mabo (No 2) at 68–70 per Brennan J and at 89 and 110 per Deane and Gaudron JJ; Fejo at [47]; and Ohlsen v Attorney-General (NSW) [2021] FCA 169; (2021) 390 ALR 187 at [47] per Griffiths J, as affirmed on appeal in Attorney-General (NSW) v Ohlsen (2022) 290 FCR 173; [2022] FCAFC 38). That is because there is a fundamental inconsistency between the grant of a freehold estate and the continued existence of any native title rights and interests. The freeholder has the right, subject to any statutory or common law qualifications, to use the land as seen fit and this is incompatible with the continued existence of any native title rights and interests even where native title holders maintain their connection with the land under traditional laws (see Butt’s Land Law at [14.340]).
Moreover, each of the grants of freehold involving fee simple interests are “previous exclusive possession acts” under s 23B(2) of the Native Title Act. They are taken to have extinguished native title when the grants were made: s 23E of the Native Title Act and s 20(1) of the Native Title (New South Wales) Act 1994 (NSW) (NSW Native Title Act).
The extinguishment of native title (see s 11(1) of the Native Title Act and Wilson v Anderson at [46]) flows from the following three criteria being satisfied in respect of the 6 freehold titles (see generally Butt’s Land Law at [14.630]ff):
(1)Each of the 6 grants of freehold was valid as required by s 23B(2)(a). The grant of freehold in respect of the title made up by two parcels occurred on 18 April 1939. The freehold over the remaining five titles was granted on 1 May 1989 upon registration of the transfer of an estate in fee simple. Those grants of freehold were valid either because they occurred before the commencement of the Racial Discrimination Act 1975 (Cth) on 31 October 1975 or they were each a “past act” for the purposes of s 228 of the Native Title Act that occurred before 1 January 1994 and was validated by s 8 of the NSW Native Title Act.
(2)Secondly, the criterion in s 23B(2)(b) of the Native Title Act is satisfied because each grant of freehold occurred on or before 23 December 1996.
(3)Thirdly, each grant involved a freehold estate, which is one of the categories of grant provided for in s 23B(2)(c) of the Native Title Act which qualifies as a “previous exclusive possession act” (see generally Ward at [8]–[10]).
The position is less straightforward when attention is focused on the balance of the land comprising Mogila, which comprises leasehold titles, to which I now turn.
The 14 Mogila leasehold titles
Thirteen of the leasehold titles relate to 12 Western Lands Leases (WLLs) (WLL 4602 covers two parcels and creates two separate titles to those parcels). All these WLLs were granted for pastoral purposes and all are in perpetuity. Eleven of them were granted in perpetuity from the time of their original grant.
The power to grant a WLL in perpetuity became possible on the commencement of s 8(a) of the Western Lands (Amendment) Act 1934, which inserted a new s 23 into the Western Lands Act.
The remaining two WLLs (Nos 266 and 3848) were initially granted for fixed terms expiring on 30 June 1943 and 30 June 1968 respectively. Subsequently both were extended to a lease in perpetuity pursuant to s 18E of the Western Lands Act on 19 September 1934 and 19 February 1937 respectively.
The remaining leasehold is a conditional lease (No 1589). A copy of this lease was not in evidence. Instead an extract from the Government Gazette dated 4 November 1885 was in evidence. It refers to this conditional lease having been granted under cl 52 of the Crown Lands Act 1884 (NSW). Significantly, the conditional lease was extended to perpetuity on 17 December 1937. The ILSC handed up a document which summarised the relevant terms and conditions imposed on conditional leases under the Crown Lands Act. Many of those terms and conditions were similar to those applying to WLLs. None of those terms and conditions was inconsistent with the characterisation of the conditional lease as conferring a right of exclusive possession which was inconsistent with any continuing native title rights and interests.
A Title Search in respect of this estate was also in evidence. It is described there as a perpetual lease and that it is also subject to the Crown Lands Consolidation Act. Those conditions relate to such matters as residency, fencing and improvements. None of the conditions imposed by the Crown Lands Consolidation Act derogates from the right of exclusive possession conferred upon a conditional leaseholder. The importance of the conditional lease being a perpetual lease is that it attracts the observations of the High Court in Wilson v Anderson regarding the significance of a perpetual term, a matter to which I now turn.
It is significant that all 14 of the Mogila leases are in perpetuity. In Wilson v Anderson, it was held that a perpetual lease for grazing purposes granted under the Western Lands Act conferred a right of exclusive possession which is inconsistent with native title rights and interests. The history and purpose of that legislation and the fact that the lease was granted in perpetuity were important factors in reaching that conclusion (see at [17]–[21] per Gleeson CJ and at [109]–[119] per Gaudron, Gummow and Hayne JJ). As the plurality stated at [115]–[116] in emphasising the significance of the fact that the leases were in perpetuity (footnotes omitted):
115 The point of present importance is that these conditions and obligations, whether imposed directly by the Western Lands Act or permitted by the statute to be attached to the grant, were not inconsistent with the incidents of a grant of a determinable fee simple. The right of forfeiture for failure to pay rent or non-observance of conditions is equivalent to the right of re-entry on breach of a condition subsequent attached to a determinable fee simple.
116 However, in other respects, the legislative creation of the lease in perpetuity was to have the attraction, both for leaseholders and those financing their operations upon mortgaged security, of a tenure with, as the Secretary put it in 1912, ‘‘all the advantages and essence of a freehold’’. Save where statute otherwise provided, that essence denied to anyone else the enjoyment of any right or interest in respect of the land. For the purposes of the NTA, this included a right in the grantee of a lease in perpetuity of exclusive possession.
In Ohlsen at first instance, Wilson v Anderson was analysed at [30]–[35]. Emphasis was given to the need to pay careful attention to the terms of legislation which is the source of a particular land tenure, as well as the terms of the lease instrument. In concluding in Ohlsen that the particular WLLs there did not involve a grant of exclusive possession, particular emphasis was placed upon the fact that (unlike here) each WLL was granted for a finite term. Moreover, some of the particular terms and conditions made those WLLs “precarious”. Wilson v Anderson was distinguished on the basis that the WLLs in Ohlsen were not perpetual leases. On appeal, the Full Court rejected the appellant’s contention that the primary judge attached too much significance to the fact that the WLL in Wilson v Anderson was in perpetuity (see the Full Court’s decision at [278]–[285]).
I accept the ILSC’s submission that Ohlsen is distinguishable and that the WLLs and the conditional lease in the present proceeding fall into a similar category to the lease in Wilson v Anderson. The history and purpose of the Western Lands Act and the fact that each of the lease is a perpetual lease puts them in a category which is akin to the grant of a fee simple interest and confers a right of exclusive possession which is inconsistent with any native title rights and interests. In addition, in the case of the perpetual conditional lease, as noted above at [167], it is a Scheduled interest under s 249C of the Native Title Act. It constitutes a “previous exclusive possession act” under s 23B(2)(c)(i) of the Native Title Act.
The ILSC handed up a helpful schedule which compared the terms and conditions of each of the WLLs in the present proceeding with the lease in Wilson v Anderson and WLL 3469 in Ohlsen (the Schedule is attached as Annexure D to these reasons for judgment). Although some of the terms and conditions in the WLLs in the present proceeding are not the same as the terms and conditions in the WLLs in Wilson v Anderson or Ohlsen (and the comparative size of the leases differs from the leases in those cases), none of those terms and conditions derogates from the significance of the fact that the leases are all in perpetuity and confer rights which are similar to those of an estate in fee simple.
The same may be said in relation to the perpetual conditional lease (which, at the time, had a strong connection with a conditional purchase as is evident from the terms of cl 52 of the Crown Lands Act). As noted in Butt’s Land Law at [15.70] (footnotes omitted, emphasis added), conditional purchases were a:
statutory form of tenure which, after payment of the purchase price and performance of specified conditions, allowed the holder to require the issue of a Crown grant in fee simple. The fee simple thus granted had all the incidents of a “normal” fee simple, except for certain statutorily-imposed restrictions on freedom of alienation.
For completeness, it should be noted that Mr Anderson did not make any claim that the extinguishment of native title over Mogila was avoided by operation of ss 16, 22C or 23D of the Native Title Act. Accordingly, I have not addressed those provisions. Nor were they addressed by the ILSC.
Mr Anderson’s claim based on adverse possession
It appears from the Statement of Cross-Claim that a second basis relied upon by Mr Anderson in support of his claim for possession relates to his claimed adverse possession of the lands.
He claims that he and Ms Sapotnik-Eckford have occupied Mogila and Currawillinghi since 2002 (without interruption). He also relies upon all the work which he, Ms Sapotnik-Eckford and other Traditional Owners have done in order to manage the lands, notwithstanding the severe adverse effects of three droughts during the period from 2002 to recently. Mr Anderson pointed to the extracts from Ngurampaa’s financial statements which were included in Ms Sapotnik-Eckford’s second affidavit as evidencing the extent of the works carried out on the lands.
These claims appear to be based on adverse possession. If so, as the ILSC pointed out, they are bound to fail. That is because the defendants’ occupation of the lands since 2002 has been through Ngurampaa or, after Ngurampaa was liquidated, with the permission of the liquidator. The lands were then transferred to the ILSC on 10 April 2019 in the case of Currawillinghi (registered on 10 July 2019). In the case of Mogila, the transfer occurred on 16 April 2019 with the registration occurring on 20 November 2019. Having regard to this chronology, the defendants’ occupation or possession of the lands falls far short of the 12 years required in both NSW and Queensland for a claim based on adverse possession to succeed (see s 27(2) of the Limitation Act 1969 (NSW) s 13 of the Limitation of Actions Act 1974 (Qld)).
For completeness, it might also be noted that on 11 September 2020 Mr Anderson lodged with the NSW Land Registry Services an application for possessory title in respect of the lands comprising Mogila in the name of IW Ghillar (another pseudonym for Mr Anderson). The application was rejected on 24 March 2022.
Conclusion on Cross-Claim
For these reasons, the Cross-Claim must be dismissed. Mr Anderson should pay the ILSC’s costs of his Cross-Claim.
ILSC’s injunction claim
As noted above, the ILSC sought in the alternative an injunction restraining further trespasses to Mogila and Currawillinghi by the defendants. It was made clear by Mr Docker that this claim was not pressed if the ILSC succeeded in its claims for possession. Accordingly, it is unnecessary to determine this claim.
Conclusion
For these reasons, the following orders should be made:
(1)Judgment for the plaintiff for the possession of the land known as Mogila which is situated at XXXX XXXXX XXX XXXX, Goodooga NSW 2838, which land is constituted by the following certificates of title in the land titles register in the State of NSW:
(a)[redacted]
(2)Grant leave to the plaintiff to issue a writ of possession in respect of the land identified in order (1) above.
(3)Order 2 be stayed for a period of 56 days from the date of this judgment.
(4)Judgment for the plaintiff for the possession of the land known as Currawillinghi which is situated at XXXXX X XXXX, Dirranbandi QLD 4486 which land is identified by the certificate of title number XXXXX XXX in the land titles register in the State of Queensland.
(5)Order that the Cross-Claim filed by the first defendant be dismissed.
(6)Subject to order (7) below, order that the first and second defendants pay the plaintiff’s costs of the proceedings.
(7)The first defendant pay the plaintiff’s costs of the Cross-Claim.
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Annexure A (451059, pdf)Annexure A (451059, pdf)
Annexure B (405351, pdf)
Annexure C (248878, pdf)
Annexure D (120050, pdf)
Amendments
09 December 2022 - Typographical error in [33] of judgment amended
20 December 2022 - Hyperlinks to annexures A, B, C and D added
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