Kanak v Metrop Local Aboriginal Land Council

[1999] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S133 of 1998

B e t w e e n -

DOMINIC WY KANAK

Applicant

and

METROPOLITAN LOCAL ABORIGINAL LAND COUNCIL

First Respondent

NEW SOUTH WALES ABORIGINAL LAND COUNCIL

Second Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 JUNE 1999, AT 3.37 PM

Copyright in the High Court of Australia

MR D.W.Y. KANAK:   Your Honours, I appear for myself.

MR T.F. ROBERTSON:   If it please the Court, I appear for the first respondent. (instructed by Bruce Woolf and Associates)

MR R.T. BEECH-JONES:   If it please the Court, I appear for the second respondent. (instructed by Andrew Chalk Associates)

GUMMOW J:   Yes, Mr Kanak.

MR KANAK:   Your Honour, I ask the High Court to grant special leave to appeal a decision of the Full Court of the Federal Court.  It is a matter of public importance that any effect on the common law rights of native title holders or even potential native title holders, their rights are not allowed to be extinguished in an application to the court where initially there is no respondent.  The decision that the Full Court affirmed of the primary judge, Justice Beaumont, was initially an application by a Metropolitan Local Aboriginal Land Council and the New South Wales Aboriginal Land Council to which, until I put my notice of motion to the court, there was no respondent, so it was essentially an ex parte application.  The Full Court has confirmed the primary judge’s decision and ‑ ‑ ‑

GUMMOW J:   But it was really – you may not see it this way, but in close analysis – a matter of, what is called, practice and procedure, as to how cases are constituted and how they are run, but ordinarily, when a matter has gone from one judge of a body like the Federal Court and then there has been an application for leave to the Full Court, which has been unsuccessful, ordinarily, against that record, we do not interfere.  So, what you have against you, I think, is the ordinary disinclination to get involved in matters of practice and procedure in the other courts throughout the Commonwealth, the Federal Courts, Supreme Courts and so on.

MR KANAK:   Yes, your Honour, but my case is that in the interests of justice, this Court should examine the practice and procedure that was entertained by the Full Court in the leave application.  The practice and procedure that I think is mainly against me is the fact that the Full Court in its decision says that there was no evidence to offer to support the notice of motion, but your Honours have the transcript, which was before the Full Court of the trial before Justice Beaumont, and there are several references in the transcript where I ask his Honour Justice Beaumont if I can tender evidence that the court can examine before it goes ahead and makes the determination that there is no native title in relation to the block of land at Duffy’s Forest.  There is particular mention of it at page 43 of the application book, at the top of the page.  I say to his Honour that I do have evidence on the table today that I am attempting to tender.  When I first started to talk to his Honour, I ask that ‑ ‑ ‑

GUMMOW J:   Well when we read page 43, we have got to then go over to page 47, I think.  See it says “Judgment Delivered” at about line 17.  So we have then got to go over to page 47, which is the reasons his Honour then gave for doing what he did.

MR KANAK:   Yes, your Honour.  Your Honour, if we go a bit further into page 48, Justice Beaumont mentions the comments of Chief Justice Black in the Byron Environment Centre Case, where he says that, in relation to that part of my notice of motion that referred to my potential employment as a native title consultant, he says:

that the interests “must be capable of clear definition, and equally importantly, that they are of such a character that they may be affected in a demonstrable way by a determination”.

I said that they were affected by the fact that if the court went ahead and made a determination that there is no native title rights existing on that block of land, that effectively negated any potential employment opportunity for myself, as I came to the court as a native title consultant, but, in the interests of justice, your Honour, I would say that in this special leave application that I would ask the Court to consider my personal interest only as a secondary consideration and in the interests of justice look at the notice of motion in its entirety that was before the primary judge and to see that my appearing ‑ ‑ ‑

GUMMOW J:   Well, I think Justice Beaumont dealt with that further aspect to it, I think, on page 49, line 6, or thereabouts, in his oral submissions.

MR KANAK:   Yes, your Honour.

GUMMOW J:   What is the answer to that though?  That seems to be how the system operates?

MR KANAK:   Well, your Honour, if his Honour does not entertain on my notice of motion that I am attempting to put evidence before the Court that there are traditional owners who claim a connection to that particular parcel of land ‑ ‑ ‑

GUMMOW J:   Well, if so, they can come forward, of course.

MR KANAK:   And that was what my notice of motion asks for, your Honour.

GUMMOW J:   Yes, but they come forward.

MR KANAK:   Your Honour, whatever circumstance is on the day, the potential traditional owners for that block of land were not in court and if no one was in court then, as I said before, the application then essentially becomes ex parte ‑ ‑ ‑

GUMMOW J:   But what is the position with the main action, as it were, the application for a determination that there is no native title?  Has that been heard yet?

MR KANAK:   That is still on foot, your Honour.

GUMMOW J:   That is what I thought, yes.  So these people could still come forward, could they not, or is there a time bar of some sort.

MR ROBERTSON:   If the determination of native title which my client sought, as a non-claimant applicant ‑ ‑ ‑

GUMMOW J:   Just sit down for a moment, Mr Kanak.

MR ROBERTSON: ‑ ‑ ‑for native title, was granted by Justice Beaumont on the same day that he heard the proceedings in which Mr Kanak sought leave to appear as a party, or leave to be joined as a party, that determination of native title ‑ ‑ ‑

GUMMOW J:   So that is not still pending?

MR ROBERTSON:    Has affect, indeed, and the title which my client had to the land has now been conveyed to a third party.

GUMMOW J:   Yes, I recall that now.  Yes, thank you.  Yes, Mr Kanak.

MR KANAK:   Your Honour, in answer to that – I perhaps misunderstood your question – there is an application before the Federal Court to have that determination revoked and that is the application which I said is on for hearing soon.

GUMMOW J:   Yes, I understand.

MR KANAK:   So even though Justice Beaumont has made the determination, there is provision in the Native Title Act to have such determinations revoked and that is the application that is still pending before the Federal Court, before Justice Einfeld. Your Honour, there is reference in my summary of argument to a decision by Justice Olney on section 84(2) of the Native Title Act.  I have only been able to just get that photocopied today, but if it is possible to hand it up now, and take the Court to the section that I was going to refer to.

GUMMOW J:   Yes, I am just worried that the other side knows about it; what ‑ ‑ ‑

MR KANAK:   It has been served to the respondents.

GUMMOW J:   This is the Yorta Yorta Case.

MR KANAK:   Yes, your Honour.  The reason I had difficulty getting it is because it is an interlocutory judgment as I understand made by Justice Olney, but it does refer to an application that was made in the Yorta Yorta Case to the Federal Court for parties to be joined at the stage the application came to the Federal Court.

GUMMOW J:   Yes.

MR KANAK:   I am just referring particularly to the part of his decision I have opened for your Honour where he says that:

In my opinion a person does not have to establish an interest in relation to land or waters as defined in order to be granted leave to be joined as a party pursuant to section 84(2).

And then he goes on and gives his reasons.

GUMMOW J:   Was his Honour dealing with that at a time when the Full Court had decided the Byron Case, do you know?

MR KANAK:   That was prior to ‑ ‑ ‑

GUMMOW J:   It is before the Byron Case, I think.

MR KANAK: ‑ ‑ ‑before the Byron Case, your Honour.

GUMMOW J:   Which I think took a rather narrower view perhaps.

MR KANAK:   Your Honour, but it is still my contention that a person’s employment in relation to native title is something that is clearly defined and that was what was before the primary judge.  But, as I said, in the interest of justice I am asking the Court not to look so much at my personal interest, but the injustice that works against native title holders when an application like this comes before the Court and, once a notice of motion

such as mine is dismissed, the application is essentially ex parte and does lead then to effectively the extinguishment of native title rights, without the
court having the benefit of any evidence that may come forward from either a representative who wishes to put that evidence to the court or the traditional owners themselves.

My notice of motion did ask that an opportunity be afforded traditional owners to put evidence to the court themselves and to file further affidavits.  My contention before the High Court is that the court had a duty prima facie on the fact that I was in court with a notice of motion to challenge the determination going ahead, without any further evidence.  The court had a duty then to inquire into that and if submissions were made from the Bar table that there was evidence on the table that the applicant on the notice of motion wished to hand up to the judge, then it should have at least been allowed to have been tendered and inquired into.  If there was any contra-arguments, I was available for cross-examination if the respondents wished to question the fact that prima facie I said to the court I was a representative of traditional owners.

Your Honours, as I said, it is in the interest of justice that these determinations not be made in circumstances such as these, when the non‑claimant application has come to the stage where it is before the Federal Court, someone arrives at the last moment to say, yes, well there are potential traditional owners here and he wishes the court to look at the evidence before they determine there is no native title rights existing on that particular parcel of land.

GUMMOW J:   Yes, Mr Robertson.

MR ROBERTSON:   May it please the Court, I think the fundamental difficulty with Mr Kanak’s application today is that his application before Justice Beaumont was not supported by any evidence of representativeness in so far as he sought to represent others. There was no evidence before his Honour that there was, in fact, a person claiming to have any native title in the subject land and, so far as Mr Kanak’s proposition is concerned that his personal interests were affected, we say those personal interests were purely of a remote commercial kind, too remote to be recognised by the concept of affectation spoken of in section 84, I think it was then, of the legislation. Your Honours, in the circumstances, there is no issue of principle which this Court would determine, in our respectful submission, arising from those circumstances. Those are our submissions.

GUMMOW J:   Thank you.  Yes, Mr Beech-Jones.  Do you want to add anything to that?

MR BEECH-JONES:   If the Court pleases, just a couple of point, your Honour.  Could I just add, nor was that material sought to be placed before the Full Court when leave was sought; and secondly, your Honour, the decision of Justice Olney was specifically referred to in Byron Bay and their Honours agreed with Justice Olney in so far as his Honour said that “interests” in the former section 84 of the Native Title Act does not necessarily mean an interest in land and, of course, Byron Bay was the decision referred to by Justice Beaumont.  If the Court pleases.

GUMMOW J:   Yes, thank you.  Yes, Mr Kanak.

MR KANAK:   Just in reply to that, your Honour.  Your Honour, before both Justice Beaumont and the Full Court there was an affidavit which is included as part of the application book at page 99 and it is referred to as annexure “G”.  Now, in the transcript of the primary hearing, Justice Beaumont refers to this affidavit, so that affidavit was in evidence and annexure “G” to that affidavit is a notification from myself to the Metropolitan Local Aboriginal Land Council, notifying them in response to a further request of them asking me to identify anyone who may have a potential native title interest in that block of land.  The name was someone who has expressed that interest, so, in fact, there was at least evidence by way of affidavit from the respondents before his Honour that there was someone named as a potential native title holder, who expressed an interest of native title rights and interest in operating native title rights and interests in relation to that land.  So that was in evidence, albeit not my affidavit, but it was before the court, and then it came again before the Full Court as part of the booklet of evidence assembled by the respondents.

GUMMOW J:   This application concerns matters of practice and procedure in the Federal Court of Australia with respect to the joinder of parties under section 84(2) of the Native Title Act and Order 78 rule (5) of the Federal Court Rules.  Ordinarily, the Court would not grant leave in such a case.  The matters put this afternoon have not been sufficient to warrant a departure from that ordinary situation and this is not a case in which there should be a grant of special leave.  Accordingly, special leave is refused.

MR BEECH-JONES:   I seek costs, your Honour.

GUMMOW J:   That is an application for - - -

MR BEECH-JONES:   We seek costs, your Honour.

KIRBY J:   Keep your eyes downcast, Mr Robertson.

MR ROBERTSON:   They are.

KIRBY J:   Why should we grant costs in all the circumstances of this matter?

MR BEECH-JONES:   Your Honour, principally because of the finding at page 59 of the book.

GUMMOW J:   And two sets of costs, at that.  What do you say we find at 59?

MR BEECH-JONES:   Your Honours will find the finding of the Full Court as to the matter in which the appeal was conducted before that Court.  There were no costs ordered by Justice Beaumont.  Then the matter came before the Full Court and the Full Court expressed itself in strong terms that:

Despite requests for indulgence being couched with apologies –

Mr Kanak –

has, in effect, treated the Court and the respondents with contempt.

GUMMOW J:   He has not treated us that way.

MR BEECH-JONES:   No, I do not suggest that, your Honour.  But, equally, one matter we did seek to put in the submissions was there was, in effect, no submissions at all put to the Full Court.

KIRBY J:   But you are both Land Councils representing important Aboriginal interests.  This is a matter important to the applicant which he has advanced before the case.  Could it not be seen as just part and parcel of performing your functions, resisting his application?

MR BEECH-JONES:   Your Honour, my client is a publicly-funded body that has to fight, if I might say, on a number of fronts and on behalf of a number of people and this application really, with respect – all it did was simply hinder the sale of a residential property and my client came in to assist as best it could to assure that that process, the native title processes were not abused.  In those circumstances, a body such as my client, with respect, should be entitled to costs because of the function it performed.  I have nothing else to add, your Honour.

GUMMOW J:   All right.  What does Mr Robertson want to add, if anything, to that?

MR ROBERTSON:   Nothing, your Honour.

GUMMOW J:   Yes, I think it has to be with costs, Mr Kanak. 

KIRBY J:   That is the ordinary - - -

GUMMOW J:   That is the ordinary event, you see. 

KIRBY J:   You bring cases up here and you inconvenience other parties and lawyers and they have to defend their interests and have people represent them here.  It is well known that virtually always that has to be at the price of costs.

MR KANAK:   Yes, but I would ask the Court that an order for costs, if that is the order the Court is minded to make, that the order for costs just be the normal order for costs.

GUMMOW J:   Yes, we would not be granting anything other than that.

MR KANAK:   Thank you.

GUMMOW J:   So, the application then is dismissed with costs.

AT 3.59 PM THE MATTER WAS CONCLUDED