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Kanak v National Native Title Tribunal

Kanak v National Native Title Tribunal

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Case Copied 27 October 1995 63 min read

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CATCHWORDS

NATIVE TITLE - Practice and procedure - Native Title Determination application - effect of application not complying with s.62 of Native Title Act 1993 (Cth) - non-complying application may not be rejected until applicant has been notified of the non-compliance and given a reasonable opportunity to rectify the non-compliance - applicant to be given reasonable opportunity to file affidavit and to pay fees or demonstrate exemption from liability to pay fees.

NATIVE TITLE - Person claiming to hold native title - requirement in s.63 that applicant show that a prima facie claim can be made out - absence of biological or adoptive relationship with groups said to be entitled to rights of enjoyment under native title - unable to show a prima facie claim.

Native Title Act 1993 (Cth), ss 61-67, 70.
National Native Title Tribunal Regulations 1993 (Cth), regs 7,8.

Mabo v The State of Queensland [No.2] (1992) 175 CLR 1.
Re Waanyi People's Native Title Application (1994) 129 ALR 100.
Re Waanyi People's Native Title Application (1994) 129 ALR 118.
In the matter of Native Title Act 1993; Re Associated Gold Fields NL and Alkane Exploration NL, National Native Title Tribunal, Olney J., 6 February 1995, unreported.
Northern Territory v Lane, Federal Court of Australia, O'Loughlin J., 24 August 1995, unreported.

DOMINIC WY KANAK v NATIONAL NATIVE TITLE TRIBUNAL & ORS
NG 6003 of 1995

Lockhart, Lee, Sackville JJ.
Sydney
27 October 1995

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) NG 6003 OF 1995
GENERAL DIVISION )

ON APPEAL FROM THE NATIONAL NATIVE TITLE TRIBUNAL
CONSTITUTED BY THE HONOURABLE JUSTICE FRENCH, PRESIDENT

BETWEEN:

DOMINIC WY KANAK
Applicant

AND:

NATIONAL NATIVE TITLE TRIBUNAL
First Respondent

THE PIPELINE AUTHORITY
Second Respondent

ICI AUSTRALIA OPERATIONS PTY LIMITED

Third Respondent

GORODOK PTY LIMITED
Fourth Respondent

CORAM:    LOCKHART, LEE, SACKVILLE JJ.
PLACE:    SYDNEY
DATE:     27 OCTOBER 1995

MINUTES OF ORDER

THE COURT:

AFFIRMS the decision of the Honourable Justice French, President of the National Native Title Tribunal, given on 23 March 1995.

ORDERS that the application be dismissed.

Makes no order as to costs.

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 ) NG 6003 OF 1995
GENERAL DIVISION )

ON APPEAL FROM THE NATIONAL NATIVE TITLE TRIBUNAL
CONSTITUTED BY THE HONOURABLE JUSTICE FRENCH, PRESIDENT

BETWEEN:

DOMINIC WY KANAK
Applicant

AND:

NATIONAL NATIVE TITLE TRIBUNAL
First Respondent

THE PIPELINE AUTHORITY
Second Respondent

ICI AUSTRALIA OPERATIONS PTY LIMITED

Third Respondent

GORODOK PTY LIMITED
Fourth Respondent

CORAM:    LOCKHART, LEE, SACKVILLE JJ.
PLACE:    SYDNEY
DATE:     27 OCTOBER 1995

REASONS FOR JUDGMENT

THE COURT:
INTRODUCTION
On 10 October 1994, in circumstances to be described, the applicant made an application to the Registrar of the National Native Title Tribunal ("the Tribunal"), as a person claiming to hold native land title. The area covered by the application was described by reference to an advertisement,

inserted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] FCA 859
Decision Date: 27 OCTOBER 1995

CaseChat Overview and Summary

The appeal is against a decision of the President of the National Native Title Tribunal, given on 23 March 1995, that a native title determination application made by the applicant was not to be accepted by the Registrar. The appeal was brought under s.169(2) of the Native Title Act 1993 (Cth) ("the NT Act"). The applicant, Dominic Wy Kanak, represented himself on the appeal. The second, third and fourth respondents were represented by Mr Douglas QC. The Tribunal entered a submitting appearance. The applicant relied on a number of grounds. The applicant's case was that the Tribunal should not have rejected his application, which was given to the Registrar on 10 October 1994. The applicant's application was in response to a non-claimant application made by the Pipeline Authority, the second respondent. The latter's application was accepted by the Registrar on 5 July 1994 and a notice of that acceptance was published, among other places, in the Koori Mail of 10 August 1994. The notice stated that the non-claimant application would be taken to be unopposed, unless a native title determination application, which covered any part of the area covered by the non-claimant application, was given to the Registrar within two months. The two month period expired on 10 October 1994. The applicant's application was not accepted by the Registrar on the ground that it did not comply with s.62 of the NT Act. In particular, the application was unaccompanied by an affidavit, as required by s.62(1)(a). The Registrar referred the application to the President. The President, in reasons given on 1 February 1995, concluded that the application did not comply with s.62 and that the applicant had not shown that a prima facie claim could be made out. The President directed the Registrar not to accept the application. The Court affirms the decision of the President. The Court agrees with the Court of Appeal that the statutory scheme contemplates that a non-complying application may not be rejected until the applicant has been notified of the non-compliance and given a reasonable opportunity to rectify the non-compliance. A non-complying application is not to be rejected over the counter. The applicant was given an opportunity to show that the requirements of s.62 had been complied with. The President's reasons did not advise the applicant that he could comply with the requirement in s.62(2) to pay the prescribed fee, by making the payment within such reasonable period as the President determined was appropriate. The reasons communicated to the applicant, on a fair reading, did not notify him that this alternative was open. On the contrary, the references to the regulation suggested that the applicant could satisfy the President that the requirements of s.62(2) were complied with only by demonstrating that he was exempt from liability to pay the fee. Moreover, the applicant was invited to make submissions to satisfy the President that s.62 was complied with. He was not told that he could satisfy s.62(2) by taking a particular course of action. In the Court's view, the applicant was entitled to know that, if he could not satisfy the terms of the regulation, he could comply with s.62(2) by paying the fee. The fact that he was not given this information means that he was not given the "reasonable opportunity" contemplated by s.64(2)(a). However, the Court does not consider it necessary to decide whether the failure to conform with the obligation imposed by s.64(2)(a) would justify setting aside the direction to the Registrar not to accept the application. The Court would take the view that it would, but the fact remains that another ground was available to justify the direction to the Registrar not to accept the application. The second ground upon which the President directed the Registrar not to accept the application was that he had not been satisfied that a prima facie claim could be made out on behalf of the applicant. Accordingly, his Honour gave a direction under s.63(3)(c) of the NT Act not to accept the application. No issue arises as to whether the applicant was given a reasonable opportunity, as required by s.63(3)(a), to satisfy the presidential member that a prima facie claim could be made out. Clearly the applicant was given such an opportunity, and availed himself of it. "Native title" is defined in s.223(1) to mean, relevantly, the communal, group or individual rights and interests of aboriginal peoples in relation to land or waters where, inter alia, "the rights and interests are recognised by the common law of Australia". An application for determination of native title, under s.13(1), may be made by "a person or persons claiming to hold the native title either alone or with others": s.61(1), column 3, para.(1). It follows that an application under para.(1) can be made only by a person or persons who claim to hold "the native title". The term "claim", as used in the phrase "prima facie claim" in s.63(3), is not defined. However, it is clearly intended to refer to an application made under s.13(1) for a determination of native title. Since such an application can only be made by a person or persons who claim to hold native title, the applicant must make out a prima facie claim that he holds native title, as defined in s.223(1). Thus, the applicant must satisfy the presidential member that a prima facie claim can be made out that the applicant is a person entitled to rights and interests in relation to the land and waters claimed, that are recognised by the common law of Australia. The common law for these purposes is authoritatively laid down by the High Court in Mabo v Queensland [No.2]. In Mabo v Queensland [No.2] Brennan J., with whom Mason C.J. and McHugh J. agreed, identified (at 25) the chief question in the case, albeit somewhat "oversimplified", as whether the annexation of the Murray Islands and their incorporation into Queensland in 1879 had the effect of vesting in the Crown absolute ownership of, legal possession of and exclusive power to confer title to all land in the Murray Islands. It was common ground between the parties, and accepted by Brennan J. (at 30), that the Imperial Crown acquired sovereignty over the Murray Islands on 1 August 1879, and that the laws of Queensland, including the common law, became the law of the Murray Islands on that day. It was also accepted that, under the common law, the Crown acquired an ultimate or radical title to the Murray Islands. Brennan J. considered (at 48-49) that the "notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required

Orders