Kanak v Minister for Land and Water Conservation

[2000] FCA 257

FEDERAL COURT OF AUSTRALIA

Kanak v Minister for Land & Water Conservation [2000] FCA 257

DOMINIC WY KANAK v MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NSW
N 6016 of 1999

MADGWICK J
2 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 6016 of 1999

BETWEEN:	DOMINIC WY KANAK APPLICANT
AND:	MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NSW RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	2 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to adjourn the hearing of the respondent’s notice of motion is refused.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 6016 of 1999

BETWEEN:	DOMINIC WY KANAK APPLICANT
AND:	MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NSW RESPONDENT

JUDGE:	MADGWICK J
DATE:	2 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. On 9 November 1999 the respondent in this matter, the Minister for Land and Water Conservation of New South Wales, filed a notice of motion to strike out or dismiss the native title claim proceedings brought by the applicant, Mr Kanak.  In the course of hearing that motion, Mr Kanak (the applicant in the principal proceedings), applied to adjourn the hearing of it. 

2. I decline to grant the adjournment application.  The Minister’s strike out motion raises questions that go to whether Mr Kanak should be the initiating party at all in proceedings of this kind.  As presently advised the Minister appears to have a strongly arguable case in support of his position and to grant the adjournment would be to accord Mr Kanak a negotiating status that appears, to say the least of it, to be dubiously based in law. 

3. Secondly, as I think I said last time, it is notorious that the New South Wales Government has put in train many arrangements of an executive as well as a legislative kind to enable the Olympic Games to proceed in Sydney later this year and it is notorious that those charged with the provision of facilities for the games and/or those conducting the games with the consent of the government, have fixed on having a beach volley ball facility constructed at Bondi Beach.  There is among sections of the public considerable disquiet about this proposal and there are articulate advocates of a view that favours some alternative to the existing proposals as to such facility.  Those advocates appear, it is notorious, not to be without resources.  There are ample opportunities for the government and those parties to confer if both wish.  Mr Kanak has indicated that some such conferences may even have occurred involving him. 

4. Manifestly there has been no agreement.  I am quite satisfied that any conference that anybody might see fit to attend involving Mr Kanak, the alleged representatives of the Darug People and the Minister would be unlikely to produce agreement, hence there is no point in delay to enable any such conference.  Further, the Minister has given no indication that he is prepared to enter into such a conference which is another reason for pessimism as to the prospects of such a conference either occurring or producing anything of worth.  The adjournment application will be denied.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             2 March 2000

Solicitor for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	J Waters
Solicitor for the Respondent:	Crown Solicitor of New South Wales
Date of Hearing:	2 March 2000
Date of Judgment:	2 March 2000