Lawson v New South Wales Minister for Land and Water Conservation

[2000] FCA 1864

FEDERAL COURT OF AUSTRALIA

Lawson v New South Wales Minister for Land and Water Conservation
[2000] FCA 1864

NATIVE TITLE – application for an order restraining the sale of certain fee simple land by the Dareton Aboriginal Land Council –the Aboriginal Land Rights Act 1983 (NSW) is a “special measure” under the Racial Discrimination Act 1975 (Cth) – whether native title in land granted under that Act is extinguished – whether the rights that are held by an owner in fee simple are inconsistent with the continuing exercise of the rights and interests of native title – whether an order for costs should be made despite s 85A of the Native Title Act, due to the time-consuming nature of the interlocutory application.

Native Title Act 1993 (Cth) s 47A, s 229(2)(b)(ii), s 238(3), s 85A

Racial Discrimination Act 1975 (Cth) s 8(1)

Aboriginal Land Rights Act 1983 (NSW) ss 35,36

New South Wales Aboriginal Land Council v Worimi Local Aboriginal Land Council (1994) 84 LGERA 188 followed

Fejo v The Northern Territory [1998] HCA 58 followed

DOROTHY LAWSON v NEW SOUTH WALES MINISTER FOR LAND AND WATER CONSERVATION AND ORS
NG 6065 OF 1998

DOROTHY LAWSON v NEW SOUTH WALES MINISTER FOR LAND AND WATER CONSERVATION AND ORS
NG 6066 OF 1998

DOROTHY LAWSON AND ANOR v NEW SOUTH WALES MINISTER FOR LAND AND WATER CONSERVATION AND ORS
NG 6084 OF 1998

MATHEWS J
18 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6065 OF 1998

BETWEEN:

DOROTHY LAWSON
APPLICANT

AND:

NSW MINISTER FOR LAND AND WATER CONSERVATION
FIRST RESPONDENT

NSW ABORIGINAL LAND COUNCIL
SECOND RESPONDENT

DARETON LOCAL ABORIGINAL LAND COUNCIL
THIRD RESPONDENT

WENTWORTH SHIRE COUNCIL
FOURTH RESPONDENT

JUDGE:

MATHEWS J

DATE OF ORDER:

11 DECEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1)   I decline to make the orders for interlocutory relief sought on 9 March 2000.

JUDGE:	MATHEWS J
DATE OF ORDER:	18 DECEMBER 2000
WHERE MADE:	SYDNEY

1)    I make 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 6065 OF 1998 NG 6066 OF 1998 NG 6084 OF 1998

BETWEEN:

DOROTHY LAWSON
FIRST APPLICANT

PHILLIP LAWSON
SECOND APPLICANT

AND:

NSW MINISTER FOR LAND AND WATER
CONSERVATION
FIRST RESPONDENT

NSW ABORIGINAL LAND COUNCIL
SECOND RESPONDENT

DARETON LOCAL ABORIGINAL LAND COUNCIL
THIRD RESPONDENT

WENTWORTH SHIRE COUNCIL
FOURTH RESPONDENT

TELSTRA CORPORATION LIMITED
FIFTH RESPONDENT

JUDGE:	MATHEWS J
DATE:	18 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants, Dorothy Lawson and Phillip Lawson, are, either together or separately, applicants in native title Determination applications which, inter alia, involve certain land owned by the Dareton Local Aboriginal Land Council (“the LALC”).  On 9 March 2000 they applied for interlocutory relief seeking an order restraining the LALC from proceeding with the sale of certain land within the claimed area.  Interlocutory orders were also sought against the New South Wales Aboriginal Land Council, but these were later abandoned.

2. It is unnecessary for present purposes to describe the various parcels of land which are subject to the interlocutory proceedings.  All of them, it is acknowledged, are owned by the LALC in fee simple.  The LALC proposes to sell most of the lots, and in some cases contracts have already been exchanged.  Completion has been deferred because of the present proceedings. 

3. Although it is not relevant to the legal issues raised in these proceedings, it is pertinent to note that each of the intended sales is to a member of the LALC as part of a “rent/buy” scheme devised to improve the welfare of members by increasing their level of home ownership.

4. In support of the claim for interlocutory relief, Mrs Dorothy Lawson swore an affidavit dated 15 March 2000.  Much of the material in that affidavit and in its extensive annexures related to a Framework Agreement dated 10 March 1999 which was said to be “the first step towards reaching a registered Indigenous Land Use Agreement” pursuant to the Native Title Act 1993 (Cth) (“the NT Act”).  Various issues were raised in the affidavits as to the effectiveness of that agreement, some of which depended on the validity of certain meetings apparently held by the LALC.  However Mr Dengate, who appeared for the Lawsons in these proceedings, conceded that the validity of this agreement, and therefore the validity of the various LALC meetings referred to in the affidavits, are of no relevance to these proceedings.  This, in my view, is a correct assessment of the situation.  Accordingly, most of the affidavit material presented on behalf of both parties is not material to the issues for determination here.  On this basis, neither party sought to cross-examine the deponent of the other party’s affidavits; the case was conducted, as was appropriate, according to the legal issues involved.  After hearing argument from both parties on these issues, I made an order declining to grant the interlocutory relief sought.  I indicated that I would give my reasons later.  I also reserved my judgment on the question of costs.  These are my reasons for refusing the interlocutory application and my judgment on the issue of costs.

5. The issues raised in the case were, as I have mentioned, essentially matters of law.  In spite of the complexity of the legislative provisions and the manner in which they interlock, the issues can be dealt with simply.  Given the interlocutory nature of these proceedings I propose to be brief in these reasons.

6. As I understand it, the basis of the applicants’ claim for interlocutory relief is that, notwithstanding that the relevant land is held in fee simple, the applicants maintain native title rights over the land which entitles them to restrain a use of the land which might be adverse to their interests.  The LALC, through Mr Robertson, disputes that the applicants have any continuing native title rights in the subject land.  The LALC’s primary submission is that native title has been extinguished.  Alternatively it urges that any native title rights in the land have been suppressed for an indefinite period.  I shall discuss each of these submissions in turn.

   EXTINGUISHMENT

7. It is undisputed that the land in question is held by the LALC under the Aboriginal Land Rights Act 1983 (NSW) (“the Land Rights Act”). The land was either vested in the LALC upon the commencement of that Act by dint of s 35 or was granted to it under s 36. The Land Rights Act, on its face, distinguishes between persons on grounds of race.  The Act, and any measures taken under it, would therefore be invalid under the Racial Discrimination Act 1975 (Cth) (“the RD Act”) were it not for s 8(1) of that Act. Section 8(1) exempts from the relevant portions of the RD Act “special measures” under Article 1(4) of the International Convention on the Elimination of all Forms of Racial Discrimination. If authority were needed for the proposition that the Land Rights Act was a “special measure” under the RD Act, it is to be found in New South Wales Aboriginal Land Council v Worimi Local Aboriginal Land Council (1994) 84 LGERA 188.

8. If, as must be accepted, the grant of the subject land to the LALC was a special measure under the RD Act, it follows that the grant was not invalid under that Act by virtue of its impact upon native title. The land is therefore outside the regime of the NT Act.  Native title has been extinguished.  The applicants have no rights which they can assert over any part of the subject land.

9. Mr Dengate queried, if native title has been extinguished, why it was that at least one of the native title determination applications has been accepted for registration by the National Native Title Tribunal (“the Tribunal). This is not a question which need concern me in these proceedings. For what it is worth, Mr Robertson suggested two answers: first, that the Tribunal might have made an error. Alternatively, it may have considered that s 47A of the NT Act applies in this case, with the result that native title in the land is not extinguished but is suppressed for so long as the dominant interest continues. This brings me to the LALC’s alternative submissions.

   SUPPRESSION OF NATIVE TITLE

10. Section 47A of the NT Act provides, relevantly, as follows:

    “47A   Reserves etc. covered by claimant applications

    When section applies

    (1)This section applies if:

    (a)    a claimant application is made in relation to an area; and

    (b)   when the application is made:

    (i)a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

    (ii)the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and

    (c)    when the application is made, one or more members of the native title claim group occupy the area.

    Prior extinguishment to be disregarded

    (2)For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded:

    (a)the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii);

    (b)the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services).

    Note:The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.”

11. Mr Dengate relies on this provision to establish that native title has not been extinguished over the subject land. However the situation still has its complexities. If the land is subject to the native title regime, then the grant of the land to the LALC was a “past act” under the NT Act. Although it was a grant of freehold, it is not a category A past act, by virtue of s 229(2)(b)(ii), and can only be a category D past act. As such, the non-extinguishment principle applies, but it is subject to the grant of the freehold to the LALC. Under s 238(3) of the Act, if the dominant holding is wholly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests, then native title will continue to exist, but the commensurate rights and interests cannot be exercised.

12. In Fejo v The Northern Territory [1998] HCA 58, the High Court confirmed that a grant of title in fee simple confers upon its owners “the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination”. As the court in that case emphasised, the rights that are held by an owner in fee simple are inconsistent with the continuing exercise of any of the rights or interests which go to make up native title. It follows that, for the duration of the freehold, no native title rights or interests can be exercised.

13. Foremost amongst the rights of a fee simple owner is the right to sell land. Assuming that the non-extinguishment principle applies to this land, so that native title can be revived if the dominant interest ceases to exist, this cannot prevent the transfer of fee simple from one owner to another.  Such a transaction changes only the identity of the holder of the fee simple for the time being.  It effects no additional suppression or extinction of native title over and above that which already exists.

14. Mr Dengate sought to argue that the title held by the LALC is circumscribed by conditions which will not apply to purchasers who buy land from it.  Thus, he urged, the title which the LALC is seeking to transfer is greater than that which it owns.  However Mr Robertson countered this submission, correctly in my view, by pointing out that there is a difference between conditions which affect the title to land and those which circumscribe the use to which the land might be put.  The LALC acquired the freehold title in the subject land and it is the freehold title which it is seeking to transfer.  This it is entitled to do.  The mere fact that there are statutory limitations on some of the LALC’s dealings with the land does not affect the nature of its title, which remains freehold.  Nor does the fact that native title might revive if the freehold is somehow relinquished in the future affect the rights of the freehold owners to deal with the land in the meantime in a manner which is consistent with their full ownership rights.

15. In my view, the submissions presented on behalf of the LALC are unanswerable.  Even if native title was not extinguished by the grant of freehold title to the LALC, it was suppressed until such time it might be surrendered or otherwise lost.  In the meantime there are no residual native title rights which can be asserted in relation to this land.  It is for this reason that I declined to make the interlocutory orders sought by the applicants.

16. That leaves outstanding the matter of costs.

17. Mr Robertson sought an order that the applicants pay the LALC’s costs. He acknowledged that, pursuant to s 85A of the NT Act, the parties to native title proceedings will normally bear their own costs. Section s 85A provides as follows:

    “85A   Costs

    (1)Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

    Unreasonable conduct

    (2)Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.”

18. Mr Robertson, pointed out that the application for interlocutory relief was made in March 2000 but was not ready for hearing until nine months later.  The LALC’s program of “managed disposal” of its land was disrupted in the meantime.  The interlocutory claim was based on a false premise and a misunderstanding of the way the native title regime operates.  Moreover, as Mr Robertson pointed out, the applicants’ affidavit raised matters which the LALC, as a matter of prudence, felt obliged to answer, most of which, as Mr Dengate later conceded, were irrelevant to the main issues in the proceedings.

19. The matter of costs has caused me considerable disquiet, for there is much in Mr Robertson’s submissions.  The interlocutory claim was, in my view, clearly based on a misconception of the relevant legal principles.  However the legal principles are by no means simple, and I do not think that the applicants’ action in seeking this relief should be categorised as “unreasonable”.  In all the circumstances therefore I do not propose to make any order as to costs.

20. I confirm my order dated 11 December 2000 dismissing the application for interlocutory relief made on 9 March 2000.  I make no order as to costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated:             18 December 2000

Representative for the Applicant:	M Dengate
Counsel for the First Respondent:
Solicitor for the First Respondent:	Crown Solicitor’s Office
Counsel for the Second Respondent:	Ms S Phillips
Solicitor for the Second Respondent:	Native Title Unit, NSW Aboriginal Land Council
Counsel for the Third Respondent:	Mr T Robertson
Solicitor for the Third Respondent:	Andrew Chalk Associates
Date of Hearing:	11 December 2000
Date of Judgment:	18 December 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6066 OF 1998

BETWEEN:

DOROTHY LAWSON
APPLICANT

AND:

NSW MINISTER FOR LAND AND WATER CONSERVATION
FIRST RESPONDENT

NSW ABORIGINAL LAND COUNCIL
SECOND RESPONDENT

DARETON LOCAL ABORIGINAL LAND COUNCIL
THIRD RESPONDENT

WENTWORTH SHIRE COUNCIL
FOURTH RESPONDENT

TELSTRA CORPORATION LIMITED
FIFTH RESPONDENT

JUDGE:

MATHEWS J

DATE OF ORDER:

11 DECEMBER 2000

PLACE:

SYDNEY

THE COURT ORDERS THAT:

1)   I decline to make the orders for interlocutory relief sought on 9 March 2000.

JUDGE:	MATHEWS J
DATE OF ORDER:	18 DECEMBER 2000
PLACE:	SYDNEY

1)   I make 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 6084 OF 1998

BETWEEN:

DOROTHY LAWSON
APPLICANT

AND:

NSW MINISTER FOR LAND AND WATER CONSERVATION
FIRST RESPONDENT

NSW ABORIGINAL LAND COUNCIL
SECOND RESPONDENT

DARETON LOCAL ABORIGINAL LAND COUNCIL
THIRD RESPONDENT

JUDGE:

MATHEWS J

DATE OF ORDER:

11 DECEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1)   I decline to make the orders for interlocutory relief sought on 9 March 2000.

JUDGE:	MATHEWS J
DATE OF ORDER:	18 DECEMBER 2000
PLACE:	SYDNEY

1)   I make no order as to costs.

Note:               Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.