Kanak, Dominic (Wy) v Commonwealth Pipeline Authority
[1997] FCA 382
•27 FEBRUARY 1997
CATCHWORDS
Interested person - meaning of “interested person” for the purpose of s.127 of the Lands Acquisition Act - whether a person who was not a native or traditional title holder could claim to be an “interested person”.
Lands Acquisition Act (1989) s.127
DOMINIC (WY) KANAK v COMMONWEALTH PIPELINE AUTHORITY & ORS
NG753 of 1995
BEAUMONT, HILL AND MERKELL JJ.
SYDNEY
27 FEBRUARY 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG753 of 1995
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: DOMINIC (WY) KANAK
Appellant
ANDCOMMONWEALTH PIPELINE
AUTHORITY
First respondent
ICI AUSTRALIA OPERATIONS PTY LIMITED
Second respondent
GODOROK PTY LIMITED
Third respondent
MINISTER FOR ADMINISTRATIVE SERVICES
Fourth respondent
CORAM: BEAUMONT, HILL AND MERKEL JJ.
WHERE MADE: SYDNEY
DATE: 27 FEBRUARY 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The appeal be dismissed.
The appellant pay the costs of the respondents.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG753 of 1995
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: DOMINIC (WY) KANAK
Appellant
ANDCOMMONWEALTH PIPELINE
AUTHORITY
First respondent
ICI AUSTRALIA OPERATIONS PTY LIMITED
Second respondent
GODOROK PTY LIMITED
Third respondent
MINISTER FOR ADMINISTRATIVE SERVICES
Fourth respondent
CORAM: BEAUMONT, HILL AND MERKEL JJ.
DATE: 27 FEBRUARY 1997
REASONS FOR JUDGMENT
BEAUMONT J: There are before the Court two appeals, which I take to be appeals as of right and not by leave, from orders made by Whitlam J., dated 19 March 1996, dismissing two proceedings, namely NG753 of 1995 and NG37 of 1996. I will now deal with proceedings NG753 of 1995.
These proceedings involved at first instance an application for declaratory and other relief, brought under s.127 of the Lands Acquisition Act (1989) (“the Act”). By subs.(1) of that section, the Federal Court may, on the application of the Commonwealth or of any interested person, determine the person or persons who, at any relevant time, held an interest or interests in particular land in relation to which a claim for compensation has been, or may be, made under the Act; determine the nature of such an interest or interests and make such orders as are appropriate for declaring or adjusting rights or liabilities of persons in connection with the land or interests in the land, or arising out of transactions in relation to, or mortgages over, the land or interests in the land.
The background to the application appears in earlier proceedings dealt with by a differently constituted Full Court in a reported decision, Kanak v The National Native Title Tribunal (1995) 61 FCR 103. This decision was an appeal from a decision of the President of the Tribunal, to direct the Registrar not to accept the application made by the applicant. It was there held that the applicant, having failed to establish that he had any relevant connection with the people who might have been entitled to enjoy the claimed area under traditional laws and customs, had failed to establish a prima facie claim to the claimed area.
In the course of their reasons, the Full Court, consisting of Lockhart, Lee and Sackville JJ, described the applicant's claim as follows:
"The applicant’s claim
We have referred to the materials and submissions made by the applicant to the President. The applicant elaborated upon these in his oral submissions to the Court. He did so in a careful and helpful manner. Like the President, we accept the sincerity of his beliefs.
It is clear that the applicant does not claim, whether by biological descent or by adoption, to be a member of a clan or group which has had, or may have had, a connection or association with the claimed areas sufficient to found a native title claim. At the time the application was lodged, the applicant did not know of the Darug people, who were said by him to have a sufficient connection with the claimed area for this purpose. The applicant’s relationship with the Darug people is limited to his financial membership of the Darug Link Association Inc, which occurred after the date the application was lodged. He does not claim biological descent to, or an adoptive relationship with, the Darug people who, according to his submissions, were entitled to enjoy the claimed areas under their own laws and customs.
The application was originally made by the applicant on behalf of ‘all Aborigines/Torres Strait Islanders with Native/Sovereignty Title Interests in the Land/Waters named’. The application was lodged because of the applicant’s belief that any Aboriginal people resident in (or presumably near) the area affected should take steps to acquire the land as caretakers for those Aboriginal groups or people holding traditional native title, even if those groups or people cannot be identified. The applicant proposed that this caretaker role be achieved through a trust mechanism, using a body corporate or entity he had formed for the purpose. When the applicant became aware of the existence of the Darug Link Group, he applied to amend his claim so that, in effect, the land would be held in trust for the Darug people.
We accept that the applicant considers himself obliged to act as a custodian of lands to which other Aboriginal people have a physical, cultural or spiritual association. The words in s61(1) - ‘[a] person... claiming to hold the native title’ - however broadly construed, do not extend to such an applicant. Nor do the words in s61(1) - ‘[a] person who holds an interest in relation to the whole of the area in relation to which the determination is sought’ - apply to the applicant. Section 253 states that the word ‘interest’ in relation to land or waters, means:
(a) a legal or equitable estate or interest in the land or waters; or
(b)any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(i)the land or waters; or
(ii)an estate or interest in the land or waters; or
(c)a restriction on the use of the land or waters, whether or not annexed to other land or waters;’
The applicant did not claim to be the holder of an interest so defined.
The applicant’s application and subsequent submissions demonstrated quite clearly that he had no relevant connection with the people who may be entitled to enjoyment of the claimed area under traditional laws and customs. It follows that the applicant was unable to satisfy the President that a prima facie claim could be made out that he holds native title in relation to the claimed areas, either alone or with others."
In his reasons for summarily dismissing the proceedings, (see Kanak v Pipeline Authority, unreported, 19 March 1996), Whitlam J concluded (at p.5) that, however broad and liberal the rules of standing may be in administrative law, for present purposes the appellant had to show an interest in land for the purposes of s.127 of the Act. As his Honour said, the expression "interested person" is not defined by the Act. However, as his Honour went on to say, its meaning does appear from the context of s.127 and the subject matter of the Act, which is concerned with the acquisition of land by the Commonwealth, pursuant to rights of eminent domain and the requirement of the Constitution for acquisition of property on just terms.
In the present case, the appellant does not claim an interest in the subject land as a native or traditional title holder. He does claim to be of Aboriginal descent and to be an “associate member” of the Darug tribe. Furthermore, he claims that he has other "interests" in connection with the claimed land, namely that he is an "adviser" to the Darug tribe and a shareholder of the listed public company, ICI Australia Operations Pty Limited.
It should be explained at this stage, that the background to the present litigation is the acquisition of easement rights by a number of companies for the purpose of the construction of a pipeline. As has been mentioned, in the reported decision of the Full Court in Kanak, it was acknowledged by the appellant (at p.132), that although he did not himself claim to have any interest as a native or traditional title holder, he considered himself:
“obliged to act as custodian of lands to which other Aboriginal people have a physical, cultural or spiritual association.”
In my opinion, it is beyond reasonable argument that such an interest does not qualify the appellant as an interested person within the meaning of s.127 of the Act. It is clear, I think, and indeed, as I understand it, common ground, that a person claiming an interest in land as a native or traditional title holder, would so qualify; but as I follow the case sought to be made by the appellant, he does not make that claim.
So far as the other matters relied upon by the appellant to establish that he is "an interested person" within the meaning of s.127 are concerned, in my opinion, none of these matters are sufficient to qualify the appellant for that purpose. It appears that although he describes himself as an adviser to the Darug tribe, he acts in an honorary, and it would seem, a somewhat informal capacity in this regard. No professional relationship or association is suggested.
So far as his associate membership of the Darug Link Association is concerned, under the rules of that association, an associate member is defined as:
“People of the community, approved by the committee, and who are ineligible to vote.”
It follows that the status of the appellant as an associate member of this description does not qualify him, in my opinion, as a person with the interest required by s.127(1). So far as the appellant's shareholding in ICI is concerned, it is well-settled that the holding of shares in a company confers on the shareholder no interest in any of the property of the company.
At the commencement of the hearing of today’s appeal, the appellant sought to apply for either a stay of the proceedings, or more probably, as I followed it, an adjournment of the hearing. The appellant indicated that the basis of this application for adjournment was so that he would have an opportunity to bring proceedings in the High Court of Australia, seeking in substance, judicial review of a decision of Presidential Member Wootten, given on 16 September 1996; that is, some six months after the orders made by Whitlam J.
Presidential Member Wootten had dismissed applications originally made by the Pipeline Authority in preparation for exercising its power pursuant to the Pipeline Authority Act (1973) to acquire easements in relation to a number of small parcels of land for the purpose of installing a pipeline. The reasons for the decision make it clear that, in the opinion of the Presidential Member, the only possible effect of the dismissal of the applications which were made by the Authority was a positive one, in as much as it would remove a possible vehicle for a determination that native title did not exist in any of the areas subject to the non-claimant application.
In the course of his reasons, Presidential Member Wootten referred to submissions made by the appellant, expressing a number of concerns the appellant had about the processes of the Native Title Act and about dealings that had taken place between the Darug interests and other parties, including the New South Wales Aboriginal Land Council. The Presidential Member went on to say that (at p.4):
“In so far as Mr Kanak's submissions were concerned it appeared to me that Mr Gale as the representative of the Darug Tribunal Aboriginal Corporation, was the appropriate person to express Darug concerns.”
The nature of the proposed proceedings in the High Court, as explained to us by the appellant in some detail, appears to have no connection with the matter before us, namely NG753 of 1995. Relevantly, the proceeding before the Full Court today is concerned with the meaning and operation of s.127 of the Act, and as I have said, it appears to be common ground, and in any event it would be my view, that a person claiming to be the holder of a native or traditional title interest, would be an interested person for the purposes of s.127.
In my opinion there would be no useful purpose achieved if the present appeal were to be adjourned. It seems to me to be inevitable that whenever the appeal were to be heard it would fail.
I would only add that if it were possible to read what appears in Whitlam J.’s reasons (at pp.4-5) as suggesting that it is a condition precedent to establishing standing that the appellant must first show that the claim made to an interest in land is a sustainable claim, then with respect I would not go so far. However, in fairness to his Honour, I am not sure that his reasoning should be so interpreted.
For present purposes however, it is not necessary to resolve that question. On any view of the matter the appellant does not claim to have an interest in the land as a native or traditional title holder. He has no other interests which would qualify him to be an interested person for the purposes of s.127. It follows, in my view, that Whitlam J was correct in summarily dismissing the proceedings. It would further follow, in my view, that the adjournment should be refused and that the appeal should be dismissed, again with costs.
HILL J: I agree with the reasons of his Honour the presiding judge and the orders proposed. I just wish to add this. In the course of argument the appellant referred to a number of matters in addition to those mentioned by his Honour the presiding judge as being sufficient to bring him within the meaning of the words "person interested." These included that he was a person with a special interest in native title procedures, that in addition to being a stock-holder/share-holder in ICI he was also a stock-holder in another public company, AGL, presumably in the same position as ICI, that he lived in the area with which his application was concerned, that he was a member of a local environmental heritage group and that he was a member of the local environmental heritage group with concern about the areas which were the subject of the claims.
Even if these matters found support in the evidence adduced before the primary Judge in evidence, they would not, either on their own or in conjunction with any other of the matters referred to by his Honour the presiding Judge, lead to the conclusion that the appellant was a person “interested” within the meaning of the Lands Acquisition Act.
MERKEL J: I agree. I would add that in the present matter, although the precise scope of the term "interested person" in s.127 of the Land Acquisition Act 1989 was not the subject of any detailed argument, I would express a tentative view as to the meaning of those words. In my view an “interested person” for the purposes of s.127 is a person who has a bona fide and genuine claim to be the holder of an interest or interests in particular land in relation to which a claim for compensation has been or may be made under the Act. The interest claimed is one which is to be an interest as defined in s.6 and which may be acquired under s.17 of the Act.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Full Court.
Associate:
Dated:27 February 1997
Appellant:The appellant, Mr D W Kanak, appeared in person
Counsel and Solicitors for the Mr A Robertson SC
first and fourth respondents: instructed by Australian Government Solicitor
Counsel and Solicitors for the Mr A Robertson SC
second and third respondents: instructed by Mallesons Stephen Jaques
Date of hearing: 27 February 1997
Date judgment delivered: 27 February 1997
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