Lawson v Minister for Land and Water Conservation

[2002] FCA 488

FEDERAL COURT OF AUSTRALIA

Lawson v Minister for Land & Water Conservation
for the State of New South Wales [2002] FCA 488

DOROTHY LAWSON, PHILLIP LAWSON, NOEL JOHNSON, SHEILA KIRBY AND IRENE MITCHELL ON BEHALF OF MEMBERS OF THE BARKANDJI PEOPLE v MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS

NG 6070 of 1998

DOROTHY LAWSON AND PHILLIP LAWSON v MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS
NG 6167 of 1998

WHITLAM J
19 APRIL 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6070 of 1998

BETWEEN:	DOROTHY LAWSON, PHILLIP LAWSON, NOEL JOHNSON, SHEILA KIRBY AND IRENE MITCHELL ON BEHALF OF MEMBERS OF THE BARKANDJI PEOPLE APPLICANT
AND:	MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS RESPONDENTS
JUDGE:	WHITLAM J
DATE OF ORDER:	19 APRIL 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The motion, notice of which was filed in Court on 15 March 2002 by New South Wales Native Title Services Ltd, is refused.

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 6167 of 1998

BETWEEN:	DOROTHY LAWSON AND PHILLIP LAWSON APPLICANT
AND:	MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS RESPONDENTS

JUDGE:	WHITLAM J
DATE OF ORDER:	19 APRIL 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The motion, notice of which was filed in Court on 15 March 2002 by New South Wales Native Title Services Ltd, is refused.

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 6070 of 1998

BETWEEN:	DOROTHY LAWSON, PHILLIP LAWSON, NOEL JOHNSON, SHEILA KIRBY AND IRENE MITCHELL ON BEHALF OF MEMBERS OF THE BARKANDJI PEOPLE APPLICANT
AND:	MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS RESPONDENTS
NG 6167 of 1998
BETWEEN:	DOROTHY LAWSON AND PHILLIP LAWSON APPLICANT
AND:	MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AND OTHERS RESPONDENTS

JUDGE:	WHITLAM J
DATE:	19 APRIL 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Two motions for summary dismissal have been heard together.  One relates to matter no. NG 6070 of 1998 which is a native title determination application under the Native Title Act 1993 (Cth) (“the Act”), and the other relates to matter no. NG 6167 of 1998 which is a compensation application under the Act. Each motion was made by New South Wales Native Title Services Limited (“NTS”).

2. The area covered by each application is described as the land and waters known as Lake Victoria. This is an area in New South Wales for which there is no representative body under the Act. However, a grant of money has been made to NTS under s 203FE of the Act for the purpose of enabling it to perform the relevant functions of a representative body, and so it has been joined as a party to each proceeding.

3. Only one affidavit was read in support of the present motions. That was made by Paul Hayes, NTS’s principal legal officer. Annexed to his affidavit are copies of two purported notices under s 84(3)(b) of the Act. Mr Hayes does not explicitly identify in his affidavit the “grounds” upon which the orders for dismissal are sought. However, he refers to various matters under four headings which he lists as: lack of resolution as to the parties to the proceedings, the unsatisfactory state of the representation of the applicants and of each claim group, want of prosecution of the proceedings, and confusion and complexity.

4. The NSW Minister for Land and Water Conservation (“the State Minister”) tendered a copy of the entries as at 14 April 1998 in the Register of Native Title Claims relating to the subject native title determination application.  I also had marked as an exhibit on the hearing of the motions a fax sent the day before to my chambers from Martin Irwin & Richards, a firm of solicitors at Mildura.

5. None of the applicants appeared on the hearing of the motions.  Nonetheless, they were opposed by the State Minister, Western Murray Irrigation Limited, the commercial and recreational fishing interests and the landowners for whom the NSW Farmers’ Association acts as agent.  The Commonwealth did not oppose or support the motions.

6. NTS pressed its case by reference to alleged deficiencies in each application, particularly as to the identity and authority of the applicants, the description of the area concerned, and the description of the relevant native title rights and interests.  NTS invoked the power of the Court under O 20 r 2 of the Federal Court Rules.  It should be noted that the subject applications were made before the commencement of the Native Title Amendment Act 1988 (Cth) (“the Amendment Act”). In substance, NTS submitted that the applications did not comply with s 61 and s 62 of the Act as in force prior to the commencement of the Amendment Act: see the transitional provisions in Sch 5, Pt 5, item 21 of that Act. The State Minister submitted that NTS’s approach engaged the power of the Court under s 84C of the Act. I accept that submission. The Federal Court Rules must give way to such a specific provision: Federal Court of Australia Act 1976 (Cth), s 59(3). The abuse of process rubric recognized in the Rules as one of the bases upon which the Court exercises its incidental and necessary power of summary dismissal is not apt for the circumstances of the present challenge, notwithstanding the terms of s 84C(4) of the Act.

7. I am prepared to assume for the sake of argument that the applications did fail to comply with statutory requirements and that the power under s 84C of the Act is enlivened. Nonetheless, I am firmly of the view that it is not appropriate to strike out the applications. An order has been made in each matter for the separate decision of carefully formulated questions under O 29 of the Federal Court Rules. No submission has been made that those questions are not suitable for decision. The State Minister has filed and served the evidence upon which he will rely for any limited findings of facts that may be required to answer those questions. The true meaning and effect of s 18 of the River Murray Waters Act 1915 (NSW), when determined, may well be dispositive of the native title determination application. The State Minister submitted, correctly, that the separate questions are only directed to establishing whether certain grants made in relation to the subject area had the legal consequence of wholly extinguishing any native title rights and interests existing in the area at the date of the grants.

8. It is unfortunate that the applicants are unrepresented by a lawyer, and I note the discord and confusion reflected in the notices annexed to Mr Hayes’s affidavit.  It is, of course, desirable that there should be a contradictor of the proposition that native title has been extinguished at Lake Victoria.  If NTS is unable to play that role, then the usefulness of its continued participation in these proceedings may be doubted.  There is no evidence or other material before me to suggest that striking out the applications at this stage will lead to any prospect that the interests of the claim groups are likely to be more effectively vindicated in fresh proceedings.  I cannot see that the continuation of the current proceedings involves any risk of injustice or unfairness to them.  The extinguishment issues will be decided without the necessity for any evidence of connection.  In any event, I must consider too the interests of the other parties.  They have a legitimate interest in having these proceedings determined in a timely fashion so long as there is no unfairness to the claim groups.  I should perhaps add that I do not, however, take into account the concern expressed in the material faxed by the Mildura solicitors about what would happen, if these proceedings were summarily dismissed, in respect of the Pooncarrie claim to the area surrounding Lake Victoria.

9. Each motion will accordingly be refused.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             19 April 2002

Counsel for New South Wales

Native Title Services Ltd:  

S B Phillips

Solicitors for New South Wales

Native Title Services Ltd:

Chalk & Fitzgerald (Sydney)

Solicitor for NSW Minister

for Land and Water Conservation:                   

Mr C O Searle of the NSW Crown Solicitor’s Office

Counsel for Western Murray Irrigation Ltd:      

J A Waters

Solicitors for Western Murray Irrigation Ltd:                

Suzanna Sheed & Associates (Shepparton)

Counsel for Peter James Middleton

and Colin John Mansell:

J A Waters

Solicitor for Peter James Middleton

and Colin John Mansell:

J G Thompson (Shepparton)

Solicitor for Robert Charles Duncan

and Annabel Mary Walsh:

Mr Robert Gorczyca of The Bruce & Stewart Commercial Practice (Sydney)

Solicitor for Attorney General of the

Commonwealth and Commonwealth of Australia:

Ms Kirsty Ruddock of the Australian Government Solicitor (Sydney)

Date of hearing:

28 March 2002

Date of judgment:

19 April 2002