North Ganalanja Aboriginal Corp & Anor v State of Qld
[1996] HCATrans 33
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B33 of 1995
B e t w e e n -
NORTH GANALANJA ABORIGINAL CORPORATION and BIDANGGU ABORIGINAL CORPORATION on behalf of the Waanyi People
Applicants
and
THE STATE OF QUEENSLAND
First Respondent
CENTURY ZINC LIMITED and CRA EXPLORATION PTY LTD
Second Respondents
Application for special leave to appeal
BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 8 FEBRUARY 1996, AT 10.28 AM
(Continued from 7/2/96)
Copyright in the High Court of Australia
________________
BRENNAN CJ: Yes, Mr Solicitor for New South Wales?
MR MASON: Your Honours, two very short points about the construction of the Act and the powers of the presidential member. The first concerns section 63(3) and I draw the Court’s attention to what textually, at least, is a reversal of the onus of persuasion. The opening part of 63(3) requires the presidential member to be “of the same opinion” of the registrar but the scheme of the subsection then requires natural justice to be given to the applicant and subsection 3(a) calls upon the applicant to:
satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out -
Now, whether anything turns upon that I really leave it to others but my submission is that arguably it, in the events of this particular case, has changed the onus of persuasion at the stage of the presidential member.
The second point ‑ ‑ ‑
BRENNAN CJ: That depends on what the presidential member has available for consideration, does it not?
MR MASON: Yes, it does, but it may impact upon whether, by the time the presidential member comes to address the matter, it is appropriate to look at material that has been gathered post lodgment of the original application.
The other point is linked with your Honour’s question and it is simply to remind the Court of a well-known passage in Cough v Leahy 2 CLR 139, at 156 and 157, where Chief Justice Griffith said that the power of inquiry of asking questions is a power which every individual citizen possesses and provided that in asking the questions he does not violate any law, what court can prohibit him from asking them?
So, in addressing the question of whether the registrar erred in receiving information and taking it on board, as the saying goes, my submission is that the presumption would be that there would be nothing wrong with a person doing that unless there was clear legislation to the contrary.
Your Honours, if, however, Mr President French erred, it is, in my submission, critical to the determination of this application to note that he is corrigible through the process of section 169(2) of the Native Title Act. The fact that that gives the Federal Court, and we see from subsection (5) the Full Federal Court, the power to correct an error of fact or law means that it is subsection 169(2) that, to use Justice Gummow’s expression, is the applicant’s route of title. And it is via 169(2) that, ultimately, the applicant comes into this Court, as it were, seeking to correct the error of which it complains.
What follows from that, your Honours, is this: the jurisdiction of the Federal Court is an original jurisdiction to be exercised by way of rehearing. That follows, in my submission, from the fact that it is an appeal from an administrative body to a court and this Court in Re Coldham; Ex Parte Brideson [No 2] 170 CLR 267, at 273, a judgment of Justices Deane, Gaudron and McHugh, near the bottom of the page cited with approval an earlier judgment of your Honour Justice McHugh in the Court of Appeal of New South Wales of Strange-Muir to the effect that where there is an appeal from an administrative body to a court, six lines from the bottom:
a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings.
Your Honours, to same effect is a discussion of your Honour Justice Kirby in a decision called Workers’ Compensation (Dust Diseases) Board v Veksans 22 NSWLR 221, at 231. Your Honours, the fact that the Federal Court can receive fresh evidence is further underlined by the relevant rule of court, and I have given your Honours’ associates a copy of order 75 rule 15 which is the rule relating to the jurisdiction of the Federal Court on appeals under section 169 of the Native Title Act. Your Honours will see 15(1)(b) refers to an appeal pursuant to section 169(2) of the Native Title Act. Subrule (4) deals with the question of parties. Subrule (10), directions about joinder of other parties and the Court was referred to that yesterday. Subrule (11) is of some importance:
At the directions hearing the Court may direct the applicant to file an affidavit providing up to date information in respect of the matters the subject of the affidavit required under subsection 62(1).
Your Honours, that being the procedure, it is then, in our submission, important to look at the powers of the Federal Court and at section 169(6) of the Native Title Act that subsection (5) gives the court the jurisdiction, but (6) is the critical power:
The Court must hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.
So what this means, in our submission, is that the question for the Full Federal Court and on appeal for this Court is not, “What should the registrar have done?” or, “What should President French have done?” but, “What should this Court now do?”, assuming it finds error in the process of the registrar and the President.
McHUGH J: Would there be any error in us, if we were in favour of the applicant, allowing the appeal, directing the President to direct the registrar to accept the claim?
MR MASON: There would be error if your Honours did that without considering the strength of the respondents’ arguments about the question of extinguishment because only by considering that issue and by considering the matters urged by the respondents as to why this Court should embrace this critical issue, only by that means can the Court properly determine what order is appropriate and that means appropriate now.
McHUGH J: But why is that, Mr Solicitor? After all, on the hypothesis I put to you, the President had no jurisdiction and neither did the Federal Court. The matter should have finished with the registrar. He should have accepted the application and the process provided for by the Act should have been followed.
MR MASON: But the process provided for by the Act includes the appellate process on fact and law and the power, which is not uncommon, for the court to make what order is appropriate, and I am not denying the court the choice, but what order is appropriate now in the light of the situation as it appears now, both evidentiary and legally.
BRENNAN CJ: That means that section 169 really is a Trojan Horse so far as the registration issue is concerned.
MR MASON: No, it is not; it means that section 169 has, where error has occurred and assuming error has occurred, provided a means of correction but a means that builds in issues of updating information and issues of the fact that it is the Full Federal Court and on appeal this Court that exercises an appellate power. It might have been left to administrative prerogative correction, but the scheme of the Act has been to do it by way of original jurisdiction appellate correction.
BRENNAN CJ: But although it is original jurisdiction, section 169(2) is expressed in the language of appeal from the decision of the Presiden.
MR MASON: Yes.
BRENNAN CJ: Now, it may be that the decision of the President was right and by reason of further evidence before the Full Federal Court it might appear that in truth the application either will or will not succeed and the President’s decision, to that extent, may be said to be wrong. Do you say that the Full Federal Court then says the President was right and we now have jurisdiction to overrule it?
MR MASON: Well, it is because the question put to the Full Federal Court is not exclusively a jurisdictional question, because it is framed in the language of appeal and because the power is ultimately to make the order it thinks appropriate. The intention is that the Court will have regard to the state of facts or law as it appears by that stage of the proceedings. Take the example of where the facts are clear - in one sense, this is this case - and the law was uncertain, but has become certain by virtue of a ruling from this Court. Is the Full Federal Court to say, well, when the registrar and President had it, it was unclear, but now at the time we are ruling upon it, the whole of Australia knows what the law is, but we think it appropriate that we go back to square one.
McHUGH J: But your argument leaves out the words “by reason of its decision”.
MR MASON: No, those words require the appellate court to decide whether or not there was error but they do not direct the appellate court as to the disposition.
TOOHEY J: But it has an odd consequence for section 163, does it not, in the sense that there could be a claim presented involving highly contentious issues of fact or law? The claim is rejected notwithstanding the language of section 63 which speaks of “prima facie case”. The matter is rejected by the registrar and then goes to the President who likewise rejects it. It finds its way to the appellate court which in the end makes a ruling supportive not of the decision of the registrar but of a view of the law which deprives the claim of any substance. But the whole question of prima facie claim has been lost by that stage.
MR MASON: It has not deprived it of any substance because the Full Court will have addressed the facts and the law in a full curial proceeding.
TOOHEY J: Yes, except that the scheme of the Act is apparently, so long as it cannot be said that there is no prima facie case, to allow a claim to be received in order that the various procedures under the Act may be availed of. If at the end of the day they do not result in an agreement, then the President is required to refer the matter to the Federal Court not by way of appeal but for determination.
MR MASON: But the scheme of the Act, like any legislation, is not self‑executing. It requires human agents to, as it were, make rulings on the way. The power of making the initial ruling is given to the registrar and the President but, in the event that one side is unhappy with the result, the power of correcting that is given to the Full Court. One cannot, in my submission, ignore the scheme of the legislation as to the remedial choice given to the appellate court in that context.
McHUGH J: They are words of general application and you want the Court to make an order which will deprive the applicants of rights which they otherwise would have.
MR MASON: That is question begging.
McHUGH J: I have to say, Mr Solicitor, having heard the argument of the Solicitor‑General on this point yesterday and yours today I find it difficult to control my anger that these points are put forward.
MR MASON: With the greatest of respect, your Honour’s way of characterising the issue is question begging because the question of whether they have those rights at this point of time is in one sense the matter in issue in these proceedings.
KIRBY J: You say it by reason of the decision of the Full Federal Court if it be right that they do not have those rights and therefore there is a futility in sending it back. Is that how you put it? Even if the Court is of the view that the procedure miscarried, it really leads nowhere.
MR MASON: I do accept that the Court, in having the power under subsection (6) to make such order as it thinks appropriate, has the choice to say, “We will put you back to where you should have been had it not been for the original error”, preserving the rights as your Honour Justice McHugh is putting to me, but it has the other choice: before it can exercise which choice to take it needs to have regard to the likelihood that those other rights are, in truth, valuable rights that will bring about a resolution of the dispute.
DAWSON J: But the negotiating rights must always - - -
MR MASON: They are negotiating rights ‑ ‑ ‑
DAWSON J: Whatever the correctness or otherwise of the Full Court decision.
MR MASON: They are negotiation rights, if you get through the first gate, and what is in issue is whether they got through the first gate and if there was an error in shutting the first gate in their face, what, in the events that have happened, this Court as the ultimate appellate court exercising that power should do. In my submission, for this Court, vested with the choice to say, “We choose uncertainty. We choose to give the bargaining chip of uncertainty to one party”, when this Court has the jurisdiction to resolve that uncertainty ‑ ‑ ‑
McHUGH J: Mr Solicitor, it is not this Court that gives it, it is the statute that gives it. I understand perfectly well why the Solicitor‑General for the Commonwealth and yourself and the other respondents want the issue of pastoral leases decided. It is an important public question. But, unless the Act dictates it, it seems to me that this Court should not enter on that question if it means depriving these applicants of the statutory rights which this piece of legislation gives them.
MR MASON: Yes.
KIRBY J: Are those statutory rights valuable in the events that have occurred given that there is now a decision of the Full Federal Court which says, in effect, that they are not valuable. When one goes back to the negotiating table is it not realistic to say that that would affect the negotiation?
MR MASON: There are now, your Honours, four Federal Court judges who have said that pastoral leases extinguish.
TOOHEY J: But this seems to me to miss the point, Mr Solicitor. True, that the Federal Court has ruled upon questions of extinguishment but the issue really is whether prima facie the claim, when presented to the registrar, could not be made out. Now, a ruling somewhere down the track adverse to the claim does not necessarily mean that the claim prima facie could not be made out at the time it is presented for acceptance by the registrar. I mean, this is a very unusual situation where we are not dealing with a strike out application in relation to a proceeding that has been commenced. It is a barrier to acceptance of the claim and one would think needs to be construed fairly carefully, particularly when non‑acceptance prevents the claimants from embarking not just upon a determination of their claim but upon the other procedures that the Act makes available to them.
MR MASON: Yes, but it is a barrier that is only lowered in the events that have happened after a full curial proceeding and on the assumption we are making the facts are clear and it is a legal issue: do pastoral leases without reservations extinguish?
KIRBY J: We are told in the submissions that there are differentiations in different States. It is not as if it is tendered as one issue. The question, I suppose, is whether, in the events that have occurred, this issue is tendered to the Court conveniently and properly in this case.
MR MASON: Yes.
GUMMOW J: Mr Solicitor, I must say I was a little bit disquieted to hear what you were saying about section 169(6) and (7). I do not think they are unusual provisions at all, are they?
MR MASON: No, I said they were usual, your Honour.
GUMMOW J: They reflect section 44(3)(a), (4) and (5) of the AAT Act.
MR MASON: Correct, except that here the appeal is on fact or law whereas the AAT appeal is on law only ‑ ‑ ‑
GUMMOW J: That is right.
MR MASON: ‑ ‑ ‑ and that could be a critical distinction in terms of the readiness to receive fresh evidence.
GUMMOW J: I cannot understand why you rely on those provisions to resist the suggestion as to the appropriate form of order that it is put to you.
MR MASON: I am simply concerned to argue that the Court is not driven ‑ ‑ ‑
GUMMOW J: Yes. I say that because what was suggested to you as an appropriate form of order is one that is made, in my experience, very regularly in the Federal Court in AAT matters.
DAWSON J: You are not denying that, are you? You are saying, “There are two courses open and I am advocating this one.”
MR MASON: There are two courses open, yes, and I am saying that the AAT pattern is distinguishable because there the appeal is on law only. Here, there being a full appeal in the odd sense it is used here, on fact or law with this remedial choice to the appellant court and where on the facts of this case the issue is a legal one which, if anyone in Australia can resolve it, it is this Court. For this Court to choose not to do it ‑ ‑ ‑
GUMMOW J: It depends what you mean by “resolve”, it depends what you mean by “legal issue”.
MR MASON: Of course.
KIRBY J: Did you say that there were four decisions of the Federal Court or four judges?
MR MASON: Four judges. The two in this case, Justice Drummond in Wik and Justice French ‑ ‑ ‑
KIRBY J: Has the Wik Case gone to the Full Federal Court or what?
MR MASON: I think at this stage no appeal papers have been filed.
KIRBY J: Can more facts be brought in? Assume that the Court says that the procedure miscarried and it should go back to stage one. Are there more relevant facts that will be brought in in this case that would touch upon the resolution of the legal issue? You told us that all the facts or the facts are relatively clear‑cut in this case.
MR MASON: The Court should presume there are none because the full power to adduce additional facts is given by the appellant process itself, therefore, the Full Federal Court when it heard the appeal in this matter had all of the facts and had the capacity to get all of the facts that either of the parties wished to put before it.
GAUDRON J: But what was the ground of appeal to the Federal Court?
MR MASON: The ground of appeal? It was, loosely speaking, error by the presidential member, but being an appeal de novo ‑ ‑ ‑
GAUDRON J: If the appeal was on that issue, it is unlikely that it would have resulted in further facts being brought forward, whereas a different situation might arise in the event of a reference to the Federal Court by the President.
MR MASON: It may be I too readily said it is an appeal from the error. The appeal is from the decision of the President to direct non‑acceptance. The matters in issue on that appeal are such matters as the applicant wishes to raise when the matter first gets into court, namely the Full Federal Court.
GUMMOW J: Anyhow, you are an intervener. You cannot speculate on what the evidence might or might not have been. Mr Castan is not....., I would have thought.
MR MASON: Your Honours, if the choice exists, as I submit it does, the Court, in my respectful submission, needs to weigh the strength of the argument that leases extinguish and pastoral leases are no different from leases.
BRENNAN CJ: Mr Solicitor, before you develop that further, is it right to say that the existence of any choice by this Court is dependent upon the view that the Court takes as to the jurisdiction of the Federal Court in the light of the argument you have just addressed?
MR MASON: Yes, it does, that this Court is ultimately exercising the power under 169(6).
BRENNAN CJ: Yes, but if this Court construes 169(2), (6) and (7) in a way which limits the jurisdiction of the Federal Court to a consideration of whether the President was right or wrong in making the order which the President did on the material which the President had, then there is no question of choice for this Court.
MR MASON: No, because, if the President had enough material, as some have contended, to embark on the pastoral lease question, then the material is there.
BRENNAN CJ: Yes, but if it be right to say that the President’s decision was wrong because on the material that was properly before him he ought to have ordered the acceptance of the application, then there is no question further for any court to determine.
MR MASON: I agree with that. The only other thing I wish to put is, as it were, as to how the choice should be exercised. I wish to refer the Court to the recital 7 to the Native Title Act where it states the legislative understanding of what the High Court has determined in Mabo [No 2]. I refer the Court to paragraph (c) where the legislative understanding is that the High Court has held that native title is extinguished by the grant of freehold or leasehold estates. Whether that be a correct or incorrect interpretation - in my submission, it is a correct interpretation - it clearly is the legislative assumption and one which may properly inform the registrar and the presidential member. The majority of the Court in Mabo [No 2] have so held, in my submission.
To the extent that it is argued that pastoral leases raise a special question, my respectful submission is that the Court really needs to look at that in order to exercise its choice correctly. I refer the Court simply to the material on page 36 of the Commonwealth’s written submissions where various cases including the decision of this Court in O’Keefe v Williams are referred to, to the effect, in my submission, that a pastoral lease which gives exclusive possession is a lease properly so‑called. As I understand it, the Court is only considering what it should now do. My submission is it should consider the strength of that argument before exercising its choice.
Finally, as to the, as it were, discretionary aspects of the choice, my submission is that it is not appropriate to deliver the chip of uncertainty to one applicant.
BRENNAN CJ: That is scarcely a legal way of describing a decision that this Court has to make. It suggests tendentiously that there is some beneficial discretion to be exercised.
MR MASON: I had not, with respect, intended to be tendentious. I was endeavouring to pick up a suggestion that came from the Court but I have misunderstood then the thrust of what was being put yesterday.
BRENNAN CJ: No, the question is whether there is a right which is a statutorily conferred right arising upon the making of an application where the claim cannot be said to be incapable of being prima facie made.
MR MASON: Yes. Well, if the question can be put as to whether this Court, having the choice, should exercise that choice in such a way as lawfully to defeat that right, my submission is the Court should for these very brief reasons: that it was the applicant who brought the matter to this Court raising the very issue of pastoral lease and has brought the parties here ready to argue it. It is only by an amendment brought on late and by, in effect, a request by the applicant to stop at this point of time that the Court is offered that opportunity. Secondly, it is contrary to principle, in my submission. In matters of land title the law has always favoured certainty and its approach to precedent, for example, and the approach of this Court in the exercise of its special leave jurisdiction the Court has tended to favour certainty in the law rather that uncertainty.
And, finally, your Honours, the whole process of mediation is addressed in the affidavit of Janine Rosemary Ward which has been filed by the Commonwealth. I made inquiries this morning. There do not seem to be copies in Court except one that your Honour the Chief Justice has. I remind your Honour that paragraph 16 says that 42 per cent of all land in Australia is affected by pastoral leases and that paragraphs 13 and 14 deposes to the fact that the mediation process is breaking down, in effect, because the parties are unwilling to mediate as long as there is uncertainty about this critical issue. To prolong that uncertainty is going to add to cost and is going to increase expectations that if, ultimately, the matter is decided in favour of extinguishment will only be more sorely and bitterly dashed than if the Court were to take up the choice and resolve the issue now, in my submission. I am sorry I have exceeded my limit by a considerable amount.
BRENNAN CJ: None the less interesting, Mr Solicitor.
McHUGH J: Very interesting, Mr Solicitor.
BRENNAN CJ: Mr Solicitor for South Australia.
MR SELWAY: May it please the Court. Victoria makes no submission on this matter. The submissions I have put are for South Australia. South Australian submissions are directed more to the question of what the Court should now do with the matter rather than ground 1 itself. In particular, South Australia makes no submission on whether the test under section 63 is whether the claim is arguable or some other test.
We would refer the Court to section 148 of the Native Title Act. That provides that the Tribunal may, at any time after the application has been received:
dismiss an application.....if it is satisfied that the applicant is unable to make out a prima facie case in relation to the application.
And what we would put - and it follows on from the comments of some of your Honours yesterday morning - that the applicant receives no utility of an order from this Court unless the Court deals with the question of what the proper test is under section 63, and then whether, on the material at least that was properly before the President, that test applies, but we would also say that even if the President had made an error in permitting further material in, the net result of merely sending it back on that basis would be that the material would now go before the President again and, while the Full Federal Court decision remains as it is, it would appear that that section ‑ ‑ ‑
DAWSON J: But it would not remain as it is. It would be set aside.
MR SELWAY: Only if the reason for setting it aside, with respect, is that they have applied the wrong test for section 63 and that in fact the case is arguable.
DAWSON J: No, no, it is because the case should not have reached that stage, that is why it would be set aside.
MR SELWAY: I understand what your Honour is saying. What I am putting to your Honour is that if it is sent back simply on that basis, the next thing that will occur before the President is that the material that should not have been before the President will be put before the President.
BRENNAN CJ: By whom?
MR SELWAY: By the Queensland and, one assumes, the second respondent, who would then be entitled to be parties.
GAUDRON J: Well, I do not see why you say you are entitled to be parties.
MR SELWAY: Your Honour, the ‑ ‑ ‑
GUMMOW J: Parties before the registrar?
MR SELWAY: Parties before the Tribunal once the claim is accepted.
GAUDRON J: Yes, well that is ‑ ‑ ‑
MR SELWAY: I apologise if I expressed it badly. In that situation, the Tribunal will find itself shortly in exactly the same position ‑ ‑ ‑
DAWSON J: Why? If the matter goes back and the same is accepted, there follows negotiation, does there not? And if the negotiation is unsuccessful the matter is then referred to the court.
MR SELWAY: Subject to section 148 which gives the Tribunal the power at any time.
BRENNAN CJ: That is at a stage of the inquiry relating to the application.
MR SELWAY: Yes, your Honour.
MR SELWAY: Where does the Tribunal conduct an inquiry in relation to an application after registration?
MR SELWAY: I think I am right in saying, your Honour, that there is nothing within the Act that provides for a specific inquiry.
TOOHEY J: There is if you look at 137 and then again at 139.
MR SELWAY: Yes, I take your Honour’s point. Your Honours, as I understand it would be unlikely that this matter would proceed into a section 139 inquiry. It would proceed into negotiations.
KIRBY J: Is it your submission that if the matter must go back to the registrar on the footing that the registrar’s action miscarried that when it does, the registrar refers the matter to the President, he is the Tribunal, and you say then that the President, faced with the decision of the Full Federal Court, bearing in mind the duty that is imposed by section 148, would be entitled or bound to be satisfied that the applicant is unable to make out a prima facie case and that that is the reason why this Court must come to grips with the substantive or second question in the appeal?
MR SELWAY: Yes, your Honour, that is our submission.
McHUGH J: How do you say that, Mr Selway? If we hold that there was a prima facie case then what jurisdiction has the President got to contradict it? He has got none, has he?
MR SELWAY: No, and I accept your Honour’s point. All I am putting to the Court is that the Court needs to deal with the question of whether there is a prima facie case. It cannot leave the matter simply on the basis that evidence was wrongly admitted.
McHUGH J: I understand that.
MR SELWAY: Yes, your Honour. What we would put on that question is even on the assumption that the test is a test of arguable case, we would submit that there is no arguable case. What we submit is that following the decision of this Court in Western Australia v The Commonwealth the reasoning of your Honour the Chief Justice in Mabo [No 2] now enjoys majority support in this Court. We say that that was specifically accepted in Mabo [No 2] by the then Chief Justice and by your Honour Justice McHugh and it was accepted by your Honour Justice Dawson specifically in Western Australia v The Commonwealth. We say that reasoning included that a lease, with a reservation, extinguished native title because it was a lease. It is also our submission that in Western Australia v The Commonwealth all members of this Court accepted two propositions: firstly, that the Crown may lawfully extinguish native title by a unilateral inconsistent grant; and, secondly, that it is the legal effect of that grant which determines whether native title is extinguished. In our submission, it necessarily follows from those two propositions that the grant of a fee simple, or a lease, extinguishes native title.
Consequently, we would wish to submit that it is not arguable, whether before the Full Federal Court or the President, that a lease with or without reservations does not extinguish native title. We would also submit that it is not arguable, in view of the various authorities in this Court, that a pastoral lease is not a lease. Indeed, our understanding of the applicants’ submissions is that they do not argue to the contrary. Rather, our understanding of their submissions is that they say it is irrelevant whether or not a pastoral lease is a lease.
BRENNAN CJ: Are you now dealing with the second point, or are you dealing with the question of what this Court should do in relation to the second point?
MR SELWAY: What we are trying to do, your Honour, is explain to the Court what submissions we would wish to put on the second point.
BRENNAN CJ: Is not the time not yet right for that?
MR SELWAY: Only to convince the Court the submissions we would put, in our submission, have some substance.
McHUGH J: I do not think anybody would dispute that.
TOOHEY J: I thought your submission was that they are irresistible.
MR SELWAY: Yes, your Honour, but they did not seem to convince the Full Federal Court. The submission we would wish to put is that the propositions put by my friends are not arguable; that the decision of the Full Federal Court is clearly right; and that there is no arguable proposition that can be put.
McHUGH J: Do you say Justice Lee was wrong when he said there was a prima facie case?
MR SELWAY: Yes, your Honour. In fact, we say, with respect, that Justice Lee was wrong on most of his analysis.
KIRBY J: Right or wrong, you say this is right for this Court to consider it and timely that we do and in the interests of the good administration of the Act.
MR SELWAY: Yes, your Honour, and we say it is proper for the Court to consider it, even if the question that the Court considers is merely whether the proposition is arguable, and if the Court is concerned about putting, as it were, a final proposition on it, our submission is that this Court has already determined these questions and that the Full Federal Court was bound to follow it.
McHUGH J: But if the Court took the view that there was an arguable case and that a claim should have been accepted, the application should have been accepted, is not the result of what you and the other Solicitors‑General have asked us to do is to deprive these applicants of their rights so that the general public can have a decision of this Court sooner rather than later? Do you accept that is the result?
MR SELWAY: I accept what your Honour is putting to me with this qualification, that what we are putting is that there is no arguable case and, if that is right then there is no threshold.
McHUGH J: If there is no arguable case, it is a different again, but accept that there is an arguable case and that the application should have been accepted, do you contend that nevertheless the public interests requires us to deprive these applicants of their negotiating rights in the public interests so that this question of pastoral leases should be determined?
MR SELWAY: Your Honour, what we would contend is that the public interest in this matter is clear, subject to the Native Title Act, and what your Honour puts is that the Native Title Act provides certain rights. One cannot argue with that. It does. The public interest is nevertheless clear: that the determination of this issue is of critical importance to the whole of the country.
McHUGH J: I appreciate that, but it does seem to me a large step to ask a court to sacrifice the rights of individuals so that commercially and perhaps socially we can get a quicker decision on the question of pastoral leases. It is a proposition that I find very difficult to accept.
GUMMOW J: It does not sit well with the rule of law really, does it?
MR SELWAY: I cannot take the matter any further than to say that the public interest is clear but your Honour’s view of the statute seems correct. But what we would submit is that the Court does need to determine whether this claim is arguable given the nature of the claim and some of the propositions put. It would also, in our submission, be entirely desirable for the Court to determine what is arguable. For example, some of the propositions put by the applicant include notions that fee simple does not extinguish. If that is an arguable proposition, we would say there are considerable difficulties in handling the Native Title Act. That is the first point we wish to put, your Honours.
The second point was that the Full Federal Court did not merely decide that a pastoral lease without a reservation did extinguish native title. It also decided, it appears, that a pastoral lease which contains a reservation does not. That appears in application book 161 line 18, to 162 line 8, by Justice Lee and by Justice Jenkinson and 147, point 8. So far as South Australia is concerned, our primary concern is pastoral leases with reservations given that all pastoral leases in South Australia contain them. If this Court is disposed to refer the matter back on the basis that the question is arguable, we would ask the Court to consider whether it is appropriate to say that the question is arguable in respect of all pastoral leases and not merely pastoral leases without a reservation.
The third point we would wish to make is to refer the Court to section 65 of the Native Title Act and specifically the power of the registrar to do tenure searches. The evidence provided in this case to the President went well beyond tenure searches but our submission is that section 65 does give a power to the registrar to seek further information in respect of an application. That power can only be exercised for the relevant purpose. Those purposes include the low‑level screening process under section 63 and whatever test it is that the Court determines should be applied. They also include section 64. They include, most importantly, section 78 and they include the general functions and objectives of the Tribunal under sections 108 and 109.
In determining whether the registrar is acting within the purpose, our submission would be that the Court should take a broad view of what that purpose is. At the end of the day the Act must be made workable if it can be. The searches made by the registrar as a matter of fact are probably the only way that most applicants can get hold of some of this tenure history.
BRENNAN CJ: Well now, if that is so, what is the purpose of section 64?
MR SELWAY: Your Honour, the procedure, as I understand it, is that the application is received and often is deficient in a number of details; I would not say always deficient and some applicants have access to considerable resources, but if one has a look at section 78 it specifically provides that:
The Registrar may give such assistance -
including in respect of -
the conducting of searches referred to in subparagraph 62(1)(a)(i).
BRENNAN CJ: To help people prepare applications and accompanying material, that is the purpose.
MR SELWAY: Yes, your Honour, I am not doubting that, your Honour. What concerns me is that if the Court were to say that it was inappropriate for the registrar to carry out searches - and it is another question perhaps of what use can be made of the information when received - but if the Court was to say that it was inappropriate for the registrar to carry out tenure searches, that would have significant ramifications, as we understand it, on how the scheme currently operates.
BRENNAN CJ: Well there is no doubt that, for the purpose that is there specified, the registrar has the powers that are there conferred, but looking at section 64, does it not appear with a fair degree of obviousness that what is intended, having regard to that provision, and also the provisions of sections 61(2) and 62(2), that the application must be accompanied by the relevant documents that are necessary for the formation of the opinion which the registrar or the presidential member have to form.
MR SELWAY: Yes, your Honour.
BRENNAN CJ: And therefore, when one sees what section 64 provides, the registrar is authorised to say, we have not got enough in order to make these determinations, go and get more and I will help you get it. But, if the registrar says, well I am not going to act under section 64, then there is no material other than that which is provided.
MR SELWAY: Expressed that way, your Honour, it may still be capable of working efficiently and to that extent, without putting a submission as to what section 63 means, which we are not doing, I do not resile from what your Honour puts to me.
The fourth point we would wish to draw to the Court’s attention is that all submissions put to the Court would seem to have accepted that the right to negotiate procedure only applies if the claim is accepted. Your Honours, there is Federal Court authority to the contrary and holding that the right to negotiate procedure applies upon receipt of the application, not upon its acceptance. Our submission is that that authority is wrong.
McHUGH J: Would you direct us to that authority?
MR SELWAY: Your Honour, it is referred to in paragraph 2 of the South Australian written submission. It is also referred to in paragraph 2.10 of the Commonwealth’s written submission, Northern Territory v Lane and that has been followed and accepted by the Full Federal Court in Kanak v National Native Title Tribunal.
TOOHEY J: I am not clear what you are saying the effect of those judgments is. Are you saying that the claimant whose application has not been accepted or not yet been accepted may embark upon the negotiating procedures under the Act?
MR SELWAY: Yes, your Honour. The argument is, and without taking the Court right through it, it is argued that the scheme of the Act is that the registrar must register an application on receipt, and that the people who have a right to the right to negotiate procedure are registered claimants and once you are on the register that is sufficient.
TOOHEY J: Is that drawing a distinction between registering and accepting?
MR SELWAY: Yes, it is.
TOOHEY J: What, that by registering it is not necessarily accepted?
MR SELWAY: Yes, your Honour. Of course, the problem with that is that there then does not seem to be any result or consequence of acceptance. Your Honour, our submission is that those cases are in error and for that we would adopt the Commonwealth’s submissions in paragraph 2.10 of the written submissions. However, given that the submissions that have been put to the Court have assumed it, we thought we should bring it to the Court’s attention. May it please the Court, those are our submissions.
BRENNAN CJ: Thank you, Mr Solicitor. Ms Wheeler, are we to hear from you?
MS WHEELER: Yes, your Honour, and my five minutes will be about as long as other peoples’ five minutes, I regret to say. Your Honour, we are largely content to rely on our written submissions which are in the blue volume and the relevant paragraphs of which are paragraphs presently 4 to 10. The two aspects I would particularly be concerned to develop are those which deal with the intention to be attributed to the legislature, particularly in relation to access to the right to negotiate procedure, and the question of whether for the purposes of the prima facie test one can treat issues of fact and law separately. And it is our submission that those two questions are related and that they stem from tensions between important concerns, important values which lie at the heart of the Act.
To illustrate that proposition one sees, for example, from section 3 of the Native Title Act that its objects are, as one would expect, to provide for the recognition and protection of native title and I will not read all of the objects clause, but each subparagraph deals with and refers to native title. However, the Court has already been taken to important procedures in the Act which are concerned not with native title but with possible native title. They are concerned to permit, or they go so far as to permit an arbitral body, which is the Tribunal with another hat on, to determine that certain acts may not be done notwithstanding that no determination of native title with respect to the land in question has ever been made.
Those provisions were in part referred to yesterday. They commence with section 26 which specifies the Acts in question, including:
the creation of a right to mine -
and compulsory acquisition for certain purposes. One turns then to section 29 and subject to the query raised by the Federal Court decision to which the learned Solicitor for South Australia has referred. One sees from section 29(2)(b) that notice must be given to a:
registered native title claimant -
which would appear to be a person whose claim has been accepted and placed on the register. That person is then a “native title party”. Native title parties have particular rights; the right to negotiate, but it goes, of course, further than that by section 35. It is provided that:
Any negotiation party may apply to the arbitral body for a determination in relation to the act if there is no agreement within -
a fairly tight time frame.
By a circuitous route section 253 and section 29 led to the conclusion that a negotiating party is or includes a native title party.
McHUGH J: Ms Wheeler, one problem - it is not a problem so much as a lack of understanding - is that in making its determination the Tribunal is bound to look at certain criteria, one of which in 39 is:
the effect of the proposed act on:
(i) any native title -
and yet, by hypothesis, native title has not been established.
MS WHEELER: That is correct, your Honour, and it seems clear from the scheme of the Act that it need not necessarily have been established at that time.
McHUGH J: So, does that mean claim native title?
MS WHEELER: Claim native title. There does have to be an inquiry and those provisions have been referred to and they would, no doubt, cover such things as whether there appeared to be native title and, perhaps - one would submit that the arbitral body would have regard to the probability that native title could be made out or something of that kind, but it does seem clear from the scheme that what is not required is the positive determination that there is native title.
TOOHEY J: There is, is there not, in the case of an unopposed application?
MS WHEELER: Yes, your Honour, not in relation to an opposed.
TOOHEY J: Although the yardstick seems to be prima facie satisfaction.
MS WHEELER: Yes, there has to be an inquiry there too, but this applies regardless of whether the claim is disputed or not. So that very provisionally, as we would understand it, section 39(1)(a)(i), which is the one to which Justice McHugh refers, would appear, when it says:
the effect of the proposed act on:
(i) any native title rights and interests -
to be referring to the effect if those rights do, in fact, exist on that assumption and, as your Honour will note, the other matters which are referred to in section 39 are not dependent on there being any native title in existence. Under section 38 the arbitral body makes one of a number determinations and they include:
a determination that the act must not be done
or:
a determination that the act may be done subject to conditions -
and by section 41 the conditions, if any, are deemed to have the force of a contract between the parties. Now, in our submission, although acceptance of a claim has been referred to in argument as equivalent to getting into the courthouse door, because of the right to negotiate procedure it is far more significant than that. These are very significant rights to give to a person whose native title is not yet proved and, indeed, may never be proved and they are significant detriments, in our submission, if only because of the delays necessarily involved, to impose on third parties.
In considering why that might be so and why this scheme has been set up, could I suggest three factors that must, in our submission, have been of concern to the legislature in this context. First is that, in our submission, it is likely that facts either demonstrating or disproving native title, wherever the onus lies, may not be established until after very lengthy trials and, without labouring the point, one can see from this case that the tenure history alone may in some circumstances be hard to establish. Obviously because the evidence will deal with practices and customs over a very long period of time there may be incomplete and fragmentary recollections of individuals, incomplete and fragmentary official records, language difficulties, evidence taken on sites which may be inaccessible and so on. So one would expect an ultimate determination in a case where facts are in dispute to take a considerable time.
Secondly, because of the particular significance of land to native title holders and because of the way of life of some at least of those native title holders the loss of title may have more than purely financial effects, effects that cannot be compensatable in pure monetary terms, or, alternatively, the effects of a proposed act on native title holders may be able to be ameliorated by the way in which the act is done and one thinks of mining agreements, for example, in which the concern may not be so much the loss of the use of a small area of land as the influx of large numbers of people, access to alcohol and things of those kind, which can be dealt with perhaps by way of conditions on the act.
So that it follows from that that it is not good enough, or it is open to the legislature to make the judgment that it is not good enough just to allow the land to be affected with monetary compensation later if it proves that there has been native title.
The third matter, which has already been adverted to, is that the interests of members of the community generally may require a speedy decision and one thinks simply by way of example of the miner who may have invested a long period of exploration and testing, put substantial sums of money into that, hired employees to carry it out and on the strength of expectations of further development, and who may indeed be in a market such that the demand for the relevant product is going to be in existence only for a limited time.
The legislative dilemma is of course that those considerations pull in entirely different directions. In our submission, the resolution of those by the legislature is to do two things: firstly, to give certain rights to claimants, mere claimants - people whose title has not been established and may never be - and, secondly, to screen claims. In our submission, it is the nature of the dilemma which is to do with the need for caution on one hand and expectations, the need for expedition, on the other which may help elucidate the nature of the screening. Against that background, in our submission, one would expect the screening not to attempt to seek out and exclude any but, so far as the facts are concerned, the most factually impossible cases.
However, comparatively speaking, in our submission, the law may be determined relatively quickly and relatively cheaply. So that one might expect the legislature to allow room for the determination of legal questions while leaving the facts for another day altogether. In our submission, that is what the expression “prima facie” does. Broadly in other contexts one usually finds it used in relation to evidence to questions of fact, not of law. It does not have to be confined to that context.
Mr Justice French noted the dictionary meanings at page 30 of the application book but, if one goes to sources like the index to the Australian Digest - and we have not burdened your Honours with copies of that - one finds that “prima facie” generally arises in the context of determining the legal significance of evidence. An example of that of course is the prima facie case in criminal matters. As to that, we would attempt to make use of the example given by your Honour Justice McHugh yesterday in relation to the magistrate asked to commit a man for trial in relation to the alleged rape of his wife.
In some jurisdictions there has been statutory variation, but in those where the prima facie case requirement exists the question is, in our submission, is there evidence as to each element of the offence upon which a reasonable jury, properly directed, could convict?. The two features of that test that are relevant are that firstly as to the evidence, it is a low‑level preliminary kind of assessment; is there any evidence? As to the law, the test the way a properly directed jury would do, involves forming a view as to what the proper direction is; that is, involves forming a view as to what the law is. So that in your Honour’s case, it is our submission that the magistrate would have to decide whether the law was that a man could or could not be guilty of raping his wife. He is not permitted to commit anyone for trial on the basis of an arguable question of law.
McHUGH J: Supposing the Crown said, or the magistrate said, “I think what Sir Matthew Hale said in the 17th century is correct but a superior court might take a different view about it”. Is the magistrate then bound to acquit the accused so the point can never be tested?
MS WHEELER: He is bound to not to commit for trial. In some jurisdictions, and ours is one of them, there is a power to indict ex officio, so one would test it that way. Just referring to that testing, at paragraph 7 of our submissions, we refer in this context to May v O’Sullivan 92 CLR 654 and we refer to the passage often cited from page 658 which is the joint judgment of his Honour Chief Justice Dixon and Justices Webb, Fullagar, Kitto and Justice Taylor. The passage which is towards the middle of the page, the last sentence of the long paragraph reads:
It is not really correct to say that the “raising of a prima facie case” throws upon the defendant “the onus of making an answer”.
When, at the close of the case for the prosecution, a submission is made that there is “no case to answer” -
and of course, that is used interchangeably where there is a prima facie case ‑
the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law.
We would submit that it emerges clearly there that the prima facie case, which is, of course, a slightly different expression, involves a determination as a matter of law of what the effect of the facts might be were they eventually to be found as one party alleges them.
In the context of a civil matter, which related to leave to serve out of the jurisdiction, the same test was applied in the Federal Court by his Honour Justice Heerey in a case called Merpro Montassa Limited (1991) 28 FCR 387. Could I hand up to your Honours copies? I will not stop to go to it. I would simply note that at page 390 which your Honours may care to look at later his Honour took the view that because the question there arose at the outset of proceedings before there had been any discovery, issue of subpoenas or anything of that nature, then the Court will bear that circumstance in mind and might be led to draw the inference more readily in favour of an applicant. Adapting that to the circumstances of this case, we have submitted that it may be, as a general rule, that the applicant has to point only to evidence which it believes can be obtained. That may be why the Act refers not to a prima facie case but to whether a prima facie of the claim cannot or can be made out.
TOOHEY J: Where is this argument going, Ms Wheeler? Is it to the effect that while on the facts a claim would appear to be prima facie capable of being made out, nevertheless if the, in this case the registrar, is of the opinion that the law precludes or shuts out a prima facie claim, then while the law may be contentions the registrar may apply in each case her view of the law?
MS WHEELER: That puts the cart before the horse, in our submission, your Honour. The way we would prefer to approach it would be to say that the question of what it is to make out a claim involves questions of law, knowing the law - perhaps after some difficulty, no doubt - the registrar looks at the facts and then determines looking at them either that the claim prima facie cannot be made out or that the registrar is not of that opinion. So that to put it as your Honour does, in our submission, that prima facie on the facts that the claim can be made out has involved necessarily in it certain underlying assumptions of law as to what it is to make out a claim. In our submission, one has to make those explicit and when one does and says either that they are right or wrong, then one knows what the effect of the facts is.
TOOHEY J: Well perhaps I was reading too much into paragraph 7 of your submission, but it seems to involve the proposition that the law itself, even though arguable, is not an answer or is an answer to the contention that a prima facie case cannot be made out.
MS WHEELER: The law tells you whether on those facts prima facie the claim can or cannot be made out, just as it does in a committal proceeding, in our submission.
GUMMOW J: How does that fit in with interlocutory injunctions, Ms Wheeler?
MS WHEELER: Well that is why in interlocutory injunctions one moves instead to that other formulation of whether there is a serious question to be tried.
GUMMOW J: I know, but I was thinking about law in interlocutory injunction cases before Lord Diplock ‑ ‑ ‑
MS WHEELER: Yes.
GUMMOW J: And I am thinking of what this Court said in Cohen v Peko‑Wallsend 61 ALJ 57.
MS WHEELER: I do not have that in front of me, your Honour, I must confess, but ‑ ‑ ‑
GUMMOW J: ‑ ‑ ‑which is a consideration in this Court of this question - the involvement of an uncertain question of law in a prima facie case because of the pressures of time.
MS WHEELER: Yes, the interlocutory injunction context is very different, in my submission, firstly because there are pressures of time; secondly because there is that balance of convenience question, which is not dealt with at all at the time at which the application is accepted.
GUMMOW J: Yes, but that is a second step.
MS WHEELER: Yes, but still that ‑ ‑ ‑
GUMMOW J: It does involve the first step reappearing.
MS WHEELER: Yes, and we would have to say it prima facie can depend upon its context but in our submission, normally it involves ‑ ‑ ‑
GUMMOW J: But in the context of this Act, why would certain questions of law not be something within the contemplation of the scheme in this Act, given the genesis of the Act?
MS WHEELER: This Act is not concerned with fostering uncertainty, for the reasons which I have attempted to elucidate. It is concerned with preserving the position of applicants where necessarily their true legal rights cannot be determined until after what may be a protracted factual inquiry but if one does not need a protracted factual inquiry, my submission is that when one looks at the policy of the Act there is no reason to expect that the legislature would have wished to preserve their position if, as a matter of law, there are no rights.
So that, we draw the distinction in that way. It is because of the difficulty of proof and because of the length of time that it is likely to take and the effect that Acts will have upon native title holders if they be native title holders.
BRENNAN CJ: You seek to make those submissions applicable to the facts of this case?
MS WHEELER: Yes, your Honour. As to the question of the test to be applied we submit that it makes sense, when one looks at the policy tensions within the Act, to read prima facie in the prima facie case sense.
McHUGH J: Even though the registrar may be a non‑legal person?
MS WHEELER: No, the registrar cannot be a non‑legal person, your Honour.
McHUGH J: Is that right?
MS WHEELER: I was going to mention that. Section 95(3), in fact, requires the registrar to have at least five years as an enrolled legal practitioner which suggests that some degree of legal expertise is called for.
McHUGH J: Yes, thank you.
MS WHEELER: The only other submission that we did wish to make on this aspect is relevant also to the question of the material the President or registrar is entitled to take into account. We submit that at the stage of accepting the application Parliament has been at pains to ensure that the registrar has a considerable quantity of information. I do not want to take your Honours through all the sections again but an application must contain at the very least, of course, the information the statute requires in section 62(1) and anything else prescribed under section 61(2) and 62(2) and we have seen that the regulations do prescribe a considerable amount of information including that dealing with searches as to existing or expired interests.
Section 78 has also been referred to. Could I just draw your Honour’s attention to a slightly curious provision in section 78(2)(b) which provides that without limiting subsection (1) the assistance the registrar can give potential applicants includes:
the conducting of searches referred to in subparagraphs 62(1)(a)(i).
If one turns to 62(1)(a)(i) one finds that it refers to the portion of the:
affidavit sworn by the applicant that the applicant:
(i) believes that native title has not been extinguished in relation to any part of the area;
It does not, on its face, mention searches at all but, in our submission, that suggests an assumption made by the legislature that the person applying must indicate some grounds for that belief in the affidavit by reference to tenure searches, or that that believe must be grounded on them and then, of course, it is not confined to the application stage but, pursuant to section 108, the registrar can conduct research on her own account including pursuant to subsection (3) research into:
the history of interests in relation to land -
Sections 155 to 159 have already been dealt with at some length and I do not revisit them.
Yet the point of that submission in relation to this aspect, the prima facie test, is simply to submit that if the registrar is obliged to accept all applications except for those which are obviously completely impossible, then all this information at the application stage, or information which may be obtained is largely wasted effort, one might legitimately wonder, in my submission, if the test is, as the applicants suggest, why so much information can be obtained why registrar needs to know anything at this point. So that in relation to this case, in my submission, it was open to the registrar to obtain the material which was obtained and obtaining it to ask the question, “How can one make out a claim in relation to an area of land covered by pastoral which has been the subject of a grant of a pastoral lease?”.
If, in the registrar’s view, the law is that one cannot do so, then no amount of other facts will assist in determining that prima facie question. The claim has to be rejected. If the registrar took the view of the law on the contrary that it depended on the terms of the lease then the registrar would say, “Well, are there any facts that suggest that there is a possibility that native title might have continued notwithstanding this lease as a matter of fact?” If there is anything, for example, that the claimants or potential claimants are still present on the land, then the registrar would accept it. It would depend upon the view of the law which the registrar formed what facts were relevant. In this case, in my submission, the facts are, as to the tenure history, assumptions have been made there in favour of the applicants as is appropriate in relation to a prima facie case.
BRENNAN CJ: You mean in relation to all the material that was before the Tribunal?
MS WHEELER: Yes. The only difference, as we apprehend it, between his Honour Mr Justice French and the Full Court in relation to that was that the Full Court held that his Honour should have assumed in favour of the applicants that had the 1883 lease issued it would have included a reservation, and how the President came to a contrary conclusion or made a contrary assumption, is not quite clear to us. Although without delaying to look for it my recollection is that his Honour says in his reasons that that is an assumption he is making in favour of the applicants. There may have been some confusion in its submission or something of that kind.
BRENNAN CJ: Am I right in thinking that you find the power to discover facts which do not appear in the documents attached to an application in section 108?
MS WHEELER: Not in section 108 alone, your Honour. I was not proposing to deal with this aspect separately, but we would adopt, with respect, the submissions that have been made in relation to Clough v Leahy that there is nothing to stop the registrar from asking questions on the status of the registrar as an administrative body which may inform itself as it sees fit, subject of course to rules of natural justice and things of that kind. On the specific statutory provisions which do allow for researches, it would seem odd, in our respectful submission, if the legislature contemplated the registrar could go off and do her own title searches, that she could not have regard to the same material gratuitously supplied to her from some other source, although we would caution of course that the registrar, in determining what the facts may be, may treat with caution material which emanates from a source which has an obvious interest in opposing the application. But that all seems to fit within the prima facie test as applied at an early stage in civil proceedings.
As to the second question upon which submissions were invited at this stage as to where the Court goes in relation to the pastoral lease issue itself, we would adopt the submissions of the Commonwealth and the other interveners and would deal with only two other issues. Firstly, factually as to the question which your Honour Justice Kirby raised on a couple of occasions as to the appropriateness of this case as a vehicle for determining those questions, we have, could I just mention, at paragraph 13 of our written submissions made the submission that tenure history in relation to pastoral leases, at least in the Western Australian experience and, we would submit, probably having regard to the passage of time in other States, is likely in most cases to be complex and uncertain and is likely to be difficult to ascertain it.
We have even gone so far as to attach a little fold‑out chart showing the results of our searches in one quite small Western Australian claim which would tend, in our submission, to suggest that this case is about as good as one is likely to get.
KIRBY J: I was looking at that chart. I cannot really understand it.
MS WHEELER: No, that is because the little red arrows, which are quite important ‑ ‑ ‑
KIRBY J: Partly because I cannot read it.
MS WHEELER: If your Honour has the chart, the little red arrows, which are quite important, have been reduced. They are on the left‑hand side and they have been reduced so far down that one cannot read figures on them.
KIRBY J: That is the problem.
MS WHEELER: They relate to the years of issue of the various leases. If one looks at the key, the little rectangles with the lines through them denote the first apparent lease over an area and we use the word “apparent” because sometimes records have been destroyed. The dates which appear in the red arrows commence in 1882 at the top. The fourth one is 1897 and the final two are 1975 and 1995. It just gives one an idea of the time frame and the numbers of leases and the interaction of transactions which can occur in what is, in our experience, not a particularly large claim. It does not inspire confidence that a more suitable case can readily be found is the only submission that we would make about it.
TOOHEY J: But it does suggest that unless some sort of answer was given in general terms in relation to pastoral leases, with or without reservation, that the answer might not prove of much use in other cases.
MS WHEELER: One would expect in arriving at a decision in this case, should the Court address the pastoral lease issue and particularly having regard to the submissions that are likely to be made, that there would be reasoning which would be capable of application and that although the specific answer in this case might not answer every other question, that at least very substantial assistance for other cases might be provided and we do not and cannot ask your Honours to answer the question for Western Australia as well. We simply submit in relation to that, that answering this question takes us some way down the track.
KIRBY J: Your point is there is never going to be the perfect vehicle, there is never going to be the universal vehicle, but sooner or later this Court is going to have to grapple with the issue and we have got 22 counsel here and people have come here to argue it and their submissions are before the Court, it cannot or should not be postponed. It can be dealt with in this case and from this jurisprudence will arise an understanding of the principles to be applied.
MS WHEELER: That is precisely our submission, your Honour. Could I just deal finally in relation to that with what your Honour Justice McHugh put to the learned Solicitor for New South Wales about the concern for sacrificing the rights of the applicants in this case in favour of the general question. As to that, of course, we make a couple of submissions. The first is properly understanding the prima facie test there is no sacrifice, but ‑ ‑ ‑
McHUGH J: Yes, if you are right on the prima facie case, the point does not arise, but assume you are wrong on that point.
MS WHEELER: If we were wrong on that point we would say only two things about it. Firstly, to the extent that your Honour’s question rests on an assumption that the Court would answer the question against the evidence or draw heart from it.
McHUGH J: I am sorry?
MS WHEELER: To the extent that your Honour assumes in that question that the question would be answered against the applicants, we find your Honour’s question comforting, but, of course, the alternative is that this Court might accept the applicants’ argument on that and might send them back with greatly enhanced - practically speaking, greatly enhanced negotiating rights. Secondly, in our submission, it is odd or would seem to be odd that one can say in relation to these applicants because the law is uncertain that they have a right and they have a right to negotiate and because of the structure of the Act it is very valuable, but next year or two years down the track when the law is known people in precisely the same position as the applicants will have no rights whatsoever. In our submission, it is odd that the legislature would have intended that result. That is all we can say about that.
McHUGH J: Not necessarily. If you can reach consensus, settle these matters by agreement rather than by determination, everybody is probably a lot happier.
MS WHEELER: As to that we would simply submit that they will not all be determined. They cannot all be determined by agreement. Sooner or later there will be a test of this issue and there will be a divide on your Honours’ view between those who got in in time and those who got in after the Court had determined the issue.
KIRBY J: And those who negotiate at the moment negotiate from the position of the position of the majority judges of the Federal Court.
MS WHEELER: Indeed, your Honour.
KIRBY J: Which may or may nor be correct.
MS WHEELER: Yes. And reference has already been made to the affidavit filed on behalf of the Commonwealth which suggests that
negotiations may be breaking down on the basis of that uncertainty. If it please the Court.
BRENNAN CJ: Mr Solicitor for Queensland, before I call upon Mr Castan to reply, if the Court were minded to accept Mr Castan’s argument on the first point what, in your submission, is the order which the Court should make in that event?
MR KEANE: In that event, in our submission, the order which the Court should make would be an order of the kind indicated by our learned friend from South Australia. It should be that if the Court, accepting what your Honour says, were minded to make such an order it should be made on the footing that the proper test is enunciated, the proper test in relation to prima facie case. If it were to be enunciated, as our learned friend suggests, that is to say that the question is whether the proposition of law is arguable, the proposition of fact is arguable, in either of those events then one has the possibility of making out a prima facie claim. The Court should make it clear that in so enunciating, that is not to suggest a view one way or the other about the arguability of any of the conclusions reached in the Federal Court, unless this Court is going to deal with them.
BRENNAN CJ: Yes. I was not seeking your assistance in relation to the manner in which the Court might express any judgment along those lines but the precise order that ought to be made.
MR KEANE: The order would be presumably to remit the matter to the registrar to deal with the applications in accordance with the law.
BRENNAN CJ: It would be the exercise of the function which the Full Federal Court ought to have exercised on the view of the law adopted.
MR KEANE: Yes, under section 169(5), I think it is.
BRENNAN CJ: Yes. Would that not lead to an order in that event corresponding with the powers which the President has under section 63?
MR KEANE: Does your Honour have it in mind that the order would be to remit it to the President?
DAWSON J: You would not have to remit it, would you?
BRENNAN CJ: You would have to simply direct.
DAWSON J: Yes. This Court has power, if it allows the appeal, to make any order which the court below should have made. The Federal Court below, if Mr Castan’s argument were accepted, should have substituted for the order made by the President an order directing the claim to be accepted. Is that not the order that this Court should make?
MR KEANE: In our submission, not, because that really involves the Court ruling on the material rather than leaving it to the registrar to act in accordance with the law as enunciated.
DAWSON J: That is exactly what the President should have done.
MR KEANE: Well, if the Court takes that view, then the appropriate order would be to set aside the orders made below and to direct the registrar to accept it, if that is the decision in substance that the Court arrives at.
TOOHEY J: The President to direct the registrar or this Court to direct the registrar? There is a problem in the sense it has passed by the registrar.
MR KEANE: Quite, I am sorry, I appreciate now the point your Honour the Chief Justice was putting to us, yes. What your Honour Justice Toohey says is probably correct in terms of the procedural steps.
BRENNAN CJ: Yes, thank you, Mr Solicitor. Mr Fraser.
MR FRASER: On the premise that your Honour the Chief Justice articulated, the appropriate order would seem to be a direction that the matter be remitted to the presidential member with a direction to the presidential member to direct the registrar to accept the application. In that respect, I have instructions to make an application if that were the order, which I understand would not be opposed by the applicants, allowing for a short period of time before the order was implemented. I am not sure if your Honours want to hear the application now or wait until after.
BRENNAN CJ: We will have to consider whether or not any such order is one that has to be made. What we needed to know in order to consider what course the Court would take is the form of order which Mr Castan is seeking, and before I call on him we wanted to know from the respondents what form of order, in their view, that would have been the appropriate one if Mr Castan were to succeed.
MR FRASER: Yes. In that event, the form of the order which I ultimately would be putting would be one which was in the form I
mentioned, that subject to a further direction that the implementation of that order itself be stayed for five days.
BRENNAN CJ: Yes. Mr Castan.
MR CASTAN: Your Honours, may I respond to the matter that has just been raised by referring the Court to page 276 of volume one of the application book in which a specific formulation of orders is set out.
TOOHEY J: There is a problem with that though, is there not? It is one of those problems that springs from using a passive rather than the active, but if you look at subparagraph (e):
order that the.....application......be accepted -
not direct the registrar or the President direct the registrar to accept. What does it mean to say “order that it be accepted”.
MR CASTAN: Sorry, your Honour. Perhaps better expressed is a order that the registrar accept - it is an order directed to the registrar.
TOOHEY J: There is a bit of problem with that, though, is there not, because it has come to us via an appeal from the President’s decision.
MR CASTAN: Yes, but the President has exercised his powers - the matter comes to the Federal Court, the Federal Court then has - this Court can make any of the orders that the Federal Court could have made, and section 169(6) and (7) deal with the kind of orders that can be made. They include:
make such order as it thinks appropriate by reason of its decision -
in section 169(6). Without limiting that subsection:
an order affirming or setting aside the decision or determination of the Tribunal.
TOOHEY J: Are there different consequences if an order were made directing the registrar to accept the application on the one hand, or directing the President to direct the registrar to accept the application on the other.
MR CASTAN: I think none at all, your Honour.
TOOHEY J: It was just you seemed to be rather keen on an order that went directly to the registrar.
MR CASTAN: Yes, we see, given that the task of the President under section 63(3) or perhaps 63(4) is that, having formed the opinion correctly the presidential member must direct the registrar to accept the application. So the ultimate form of this matter being dealt with, as we would respectfully submit properly, is a direction to accept the application. It comes from the presidential member. On appeal from the presidential member, the Federal Court can make such order as it thinks appropriate and the order that is appropriate in these circumstances is to do that which the presidential member did not do, that is to say to direct the registrar to accept the application, what the presidential member would have done if he had acted on the assumptions made for the purpose of this discussion properly and exercised his power under subsection (4). There is no problem about the Federal Court considering it appropriate to so direct under section 169(6) and this Court can exercise that power.
KIRBY J: So the registrar completely forgets for the exercise of the powers under section 63, the solemn determination by the majority of the Federal Court?
MR CASTAN: Yes, your Honour. The registrar acts in accordance with the direction of this Court and, one assumes, the reasoning ‑ ‑ ‑
GUMMOW J: But neither the registrar nor the presidential member were joined, were they? It is an odd form of direction to a third party. You are inviting us to make an order directed to a third party, are you not?
MR CASTAN: Your Honour, the registrar was served. The registrar was the only person served.
GUMMOW J: But not the presidential member?
MR CASTAN: The presidential member was not served, no.
GUMMOW J: The rules do not seem to provide for that anyway.
MR CASTAN: The only person served at the time of the appeal under section 169 in the Federal Court was the registrar. Noice was give to the other persons who had been involved and they duly applied to join but, no, not the President. In our respectful submission, there is no difficulty - it is really a matter of what order would have been appropriate for the Federal Court under section 169(6). In our respectful submission, it is appropriate for this Court to so direct. We would respectfully submit there is no difficulty with it.
KIRBY J: Could I just ask you, Mr Castan, are there any facts that you suggest that on the return of the matter to the Tribunal that you would not have had the opportunity to put before the Full Federal Court that you would, by reason of the correction of the procedures, now have the opportunity to put before the Tribunal?
MR CASTAN: That is on the assumption the matter was accepted and duly came before ‑ ‑ ‑
KIRBY J: If it goes back to the Tribunal, that the registrar registers that the matter proceeds to negotiation. There are no additional facts.
MR CASTAN: No, I do not accede to that, your Honour.
KIRBY J: You had a full opportunity, did you not, to put all facts that you considered to be relevant before the Tribunal and the Federal Court?
MR CASTAN: We had an opportunity to put facts, but perhaps can I resist your Honour’s question in this sense, that your Honour’s question assumes there will be some process of fact finding or determination or relevant decision making in the Tribunal. Now, that will only occur if there is agreement reached in mediation, this being presumably an opposed matter. It may turn out not to be the case, but we assume for present purposes it is an opposed matter and not one that will be unopposed. It will go to mediation. The mediation will be either successful, in which case no issue arises of further hearings, or unsuccessful, but there will then be necessary to have an inquiry in order to then successfully achieve a determination of native title pursuant to that agreement and there may be some further facts necessarily brought then, although unlikely.
The circumstances in which further facts will arise that might be responsive to your Honour’s question in circumstances where this is not resolved by mediation will be when the matter comes on for hearing and determination as a disputed matter, if it does go that far, in the Federal Court pursuant to section 74. Now, if I can then respond to your Honour’s question in the context of such circumstances. Our answer is there may well be further facts. I cannot rule out the possibility of further facts and I say that because their Honours themselves in their determinations below have foreshadowed the possibility of further facts.
For instance, one of the facts referred to as an uncertain matter that may still yield further useful information relates to further searches concerning the possible existence of an instrument of lease relating to the 1883 entries which are said to constitute a grant of a lease and that question is seen as one of the open issues that led their Honours to the view that assumptions should be made in favour of the applicant, but that nevertheless an instrument may be found. If found, it is expected that it would contain a reservation and if it does that would support the view of the majority below rather than the view of Justice French and so on.
TOOHEY J: Is that a matter that would lie within the power of the Federal Court exercising its powers under the Federal Court Act?
MR CASTAN: Yes, that will entirely be a Federal Court litigation matter and under its ordinary Rules together with such special Rules as have been devised for the purpose of dealing with these matters and I do not think there is any matter - or perhaps there are some matters that have so far gone.
The other matter of course which is critical to respond to your Honour’s question is that the totality of the facts as to native title have not been explored. In fact, not only has the totality not been explored; it has barely been touched on. Assumptions have been made in very general terms that it will be impossible to show a continuity of association with this particular land, but the elements that go to make up the native title have not themselves been analysed in any way at all. They in turn affect the way in which one looks at the conflict that is said to give rise to the difficulty of the grant of leases in relation to native title.
There is only an inconsistency if the kind of native title rights that are claimed are themselves inconsistent with the exercise of rights under a pastoral lease. Certainly it is the view as expressed by his Honour Justice Lee and we would respectfully support the view and advance the view that one cannot make determinations about, decisions about, issues of conflict between rights under a Crown grant generally - in particular rights under a pastoral lease - and native title rights without knowing what those native title rights are.
McHUGH J: Or the experience or the history.
MR CASTAN: Or in turn the history and experience, as we put it, even further. But certainly it is not the case that one can deal with the matter in abstract and assume that the native title rights claimed in this case or that will ultimately be established in this case are of the same quality, kind, nature exercised in the same kind of way as those, to take an obvious contrasting case, dealt with in relation to the Miriam people on Murray Island in the Mabo Case.
So that an essential component, as we would want to submit if we get to question 2, of determining the resolution of the conflict between rights under a Crown grant and native title rights is knowing what the native title rights are. If they are merely rights of ceremony which can be conducted off the relevant land and that is all there is, there may be no conflict at all. Equally, if they are rights of exclusive possession and the right to keep all other people off the land, there manifestly is a conflict between those rights and the rights of a pastoralist wanting to run his cattle on the land.
DAWSON J: These are issues which were not explored in the Federal Court; the issue was a different one there.
MR CASTAN: Precisely, your Honour.
DAWSON J: And that is the point you make. It was a different issue.
MR CASTAN: A totally different issue, but I was responding to the question about facts, and that is our answer, with respect. Perhaps I should just mention, in the context of the question of the order sought, I had not given your Honours the reference to section 37 of the Judiciary Act which your Honours will no doubt be well aware gives the Court, in the exercise of its appellate jurisdiction, the capacity to give such judgment as ought to have been given in the first instance and very wide powers are given.
Can I touch briefly on a couple of aspects of the Native Title Act that have been referred to.
BRENNAN CJ: You have general right of reply which you should exercise.
MR CASTAN: If your Honours please, there are only a very short number of matters that I wanted to take the Court to. A number of the submissions that were made in relation to section 62 and the form of the application and material to accompany the application and the regulations that have been made under section 62(2) seem to have proceeded upon the assumption that there is an obligation on the applicants to, so to speak, provide a comprehensive tenure search or tenure details but they are obliged to undertake a body of work or a task before they make their application and in our respectful submission, that runs explicitly counter to what appears in section 62(1).
In section 62(1)(a) the matter is encompassed in terms of the belief of the applicant. It is the personal belief, not whatever might be the external facts, and inevitably what is reflected here, we would respectfully submit, is the awareness of the Parliament that there will be applicants who, in many cases, have very limited resources and may have limited knowledge or no knowledge at all of prior tenure history, particularly past tenure history that is no longer current.
So that it is the belief that is referred to in section 62(1)(a) and in section 62(1)(b) it is made clear that the information to be supplied is that:
known to the applicant about interests in relation to any of the land or waters concerned -
not ‑ ‑ ‑
BRENNAN CJ: That is those that are held but the relevant ones we are looking at here come under 62(2), do they not?
MR CASTAN: And the difficulty with section 62(2) and the regulations is that it cannot be the case, we would respectfully submit, of a simple matter of construction of the section, that there can be regulations which impose in section 62(2) an obligation which goes directly contrary, as we would respectfully submit, to that which is the limitation which is inherently built into section 62(1). Having specified that an application is only to contain information known to the applicant and that all that is required is an affidavit as to belief, it would render that at naught to then provide in the regulations that independently of that and regardless of what you know you are also obliged to go about conducting searches and to undertake a full tenure history research task before you ‑ ‑ ‑
BRENNAN CJ: What is the proposition, that paragraph A8 of form 1 of Schedule 1 is ultra vires?
MR CASTAN: To the extent to which it goes beyond searches conducted in A8, such as they are, yes, it is ultra vires. That is to say, the reference to details of all searches conducted is of course perfectly within power and an applicant, if the applicant has conducted searches, gives details of those searches, but does not impose an obligation to undertake a vast research exercise. In many cases searches have been conducted as occurred in this instance, but they were limited searches and they yielded only some of the material, but they nevertheless did contain all of the searches that they had in fact conducted - that is compliance.
A copy of any documents that record an existing or expired interest is not to be read as a copy of any documents that exist. It is a copy of any documents that have been yielded on the searches that have in fact been conducted. What I am putting to your Honours is that one cannot read the regulations to the extent that one attempts to read the regulations in a way that imposes an obligation in effect to obtain all the documents that do record any such existing or expired interest; one would be reading them in a way that contradicts the clear intent, we would respectfully submit, of section 62(1).
BRENNAN CJ: Well, is this what you are saying, that the documents that are to be covered by 62(2), so far as A8 is concerned, are the documents which answer the descriptions (a) and (b) which are found or indicated by the official title registers which are searched?
MR CASTAN: Which are searched?
BRENNAN CJ: Which are searched.
MR CASTAN: Yes, your Honour, we stress that, and there may well be cases where ‑ ‑ ‑
DAWSON J: Would you accept that, Mr Castan, found or indicated by; would you go as far as that?
MR CASTAN: No, we would not, your Honour, on consideration; it goes too far to say indicated.
BRENNAN CJ: Which are found.
MR CASTAN: We would respectfully submit it is those that are found, that all that is imposed on the applicant is to supply that which the applicant finds.
BRENNAN CJ: And if, thereafter, there is a requirement under section 64 for further material then that is material in relation to which the registrar may assist the applicant to discover the relevant documents.
MR CASTAN: Yes. Or, alternatively, the registrar may assist the applicant under the assisting power if the applicant comes and says, “I have no resources at all but I want to make an application. Can you help me because we don’t have the resources, we don’t have the manpower, we don’t have the money, and we know nothing about these things?” And there may be such cases.
BRENNAN CJ: Yes. Thank you.
MR CASTAN: I am reminded that in Northern Territory v Lane, to which your Honours have already been referred, Justice O’Loughlin, at page 45 of the unreported judgment, and I will read it briefly to your Honours in support of what I have just put, said this:
In any event, the prescription in paragraph 62(1)(b) of the Act that the applicant must “contain all information known to the applicant about interests in relation to any land or waters . . .” has to be read, at its highest, as meaning the information that is known to the claimants at the time of the lodgment of their application.
Now, he is treating it as that which they themselves know at that time.
BRENNAN CJ: Do we have copies of that judgment?
MR CASTAN: I will ensure that your Honours are provided with it.
BRENNAN CJ: I mean, we might have them, but you could check it perhaps.
MR CASTAN: I will check it.
BRENNAN CJ: It seems that we do.
MR CASTAN: It was put by a number of those who made submissions, both respondents and interveners, that in considering the course that the Court should take it is necessary for the Court to consider the strength, as it is put, of the argument that, in the case of a pastoral lease there has been no extinguishment of native title or, alternatively, that a pastoral lease does have the effect of extinguishing for all time the recognition of native title rights in relation to the land the subject of the pastoral lease. We say no more in response to that than to point out that if the strength of that argument is to be taken into account by the Court in considering the matter as it has now been developed by the Court in terms of the procedure the Court is now adopting, then we would need some considerable time to advance the argument that demonstrates what we would respectfully submit is the substantial strength of the contrary view.
It has also been put, by a number of those who have addressed the Court, that there is a sort of inevitability about the process, that this is going to eventually come back anyhow and be decided and that all that is obtained is some kind of, as it is put by some, almost suggested, an unfair advantage because it will be resolved anyhow, in a way - what lies behind what they have said, in a way unfavourable to the applicants. That assumption should not be made by the Court for the purpose of determining the current question and it should not be made because we remain in a position in which we wish to advance argument which should be regarded by the Court as of real substance and more likely than not, as we would certainly submit, given the way in which the Court is now considering it, to persuade the Court to precisely the contrary view.
The judgment of his Honour Justice Lee on the substantive question, distinct from his argument about what we might call the procedural question, is, as we would respectfully submit, highly persuasive in relation to the limited effect of pastoral leases and no assumption should be made that all we are engaged in is some procedural exercise whereby we go back and then eventually come back here anyhow and get, what seems to be suggested by my learned friends as, some inevitable result that the native title will be found to be extinguished. That is a bold assumption to make, we would respectfully submit, in the context ‑ ‑ ‑
McHUGH J: Can I ask you about a related question? It is about the meaning of “prima facie” and issues of law. In committal proceedings it probably is the case, as Ms Wheeler pointed out, that a magistrate is bound to make a decision about what the law is before applying it to the evidence. In applications for interlocutory injunctions in determining whether there is a prima facie case, it is ordinarily the duty of the judge to apply the law but the authorities establish the judge has a discretion. Having regard to matters of urgency and complexity, he is not always required to decide questions of law to determine whether there is a prima facie case. But you have got to assert that whenever there is an arguable case the registrar has no discretion at all.
MR CASTAN: We would put it in the alternative. We say that there may be circumstances where, if we put the argument exactly in that way, there is no discretion, there is an arguable case to be made.
McHUGH J: Can I just ask you this: why should we not read “prima facie” in the same way that it would be read in relation to an equity judge, in other words, it is a matter for the registrar’s discretion? He might say, “Well, there are some serious questions to be argued here. I am not going to determine those questions. I will let it go on.” On the other hand, he might say, “Well, I think I should determine it.” If he can do that, you are in trouble, are you not?
MR CASTAN: We would say if it is a matter of discretion then this is a case in which - and the context of this Act is such that the discretion miscarried in any event. We put it in the alternative. We do not say that leads to an adverse conclusion because we say in any event then the discretion has miscarried here, particularly given the issue raised and the substantial arguments relating to the peculiar nature of the pastoral lease and the necessity to ‑ ‑ ‑
McHUGH J: Does that mean that the President’s discretion has also miscarried if he decided to go on and determine the question of law, because at the moment that seems to me to be the critical issue in the case?
MR CASTAN: Yes, it has miscarried also.
DAWSON J: But your first submission is, as I understand it, that where there is any uncertainty, even though one could resolve it perhaps by going ahead and determining the question, the applicant is entitled to the benefit of that uncertainty in the negotiating processes for which the Act provides.
MR CASTAN: That is our submission. I was being asked about ‑ ‑ ‑
DAWSON J: And that “prima facie” has to be considered in that context.
MR CASTAN: Yes, your Honour, that is our submission and I was responding to a question which was putting an alternative.
DAWSON J: Yes, I understand that.
TOOHEY J: I must say I have a lot difficulty with the idea of discretion in this area at all in that clearly there is an exercise of discretion that may be made in the case of an interlocutory injunction because you are considering corresponding advantages and disadvantages and the effect of granting or refusing an injunction, but the question here is whether a claim should be accepted in order to allow the processes of the Act to take place which, whatever view you take of it, is in an entirely different area.
MR CASTAN: That is why we say primarily there is no issue of discretion, but I was being asked whether, as it was put by his Honour Justice McHugh, do I get into trouble if it is a matter of discretion and, with respect, my answer is, no, because the discretion has miscarried.
McHUGH J: I tend to think the better view probably is that there is no discretion for the reasons that Justice Toohey has just outlined, but then that makes the choice whether he or she must always determine the question of law or whether it really means an arguable question. For the reasons that Ms Wheeler put, when one is dealing with “prima facie”, one really has a duty to decide questions of law, whether it is the magistrate or somebody else.
MR CASTAN: Yes, but there is a rather special situation here, your Honour. We are talking about commencing a process. We are talking about getting into the process of native title determination. We respectfully submit that there is a grave difficulty, given that that is where this test is placed, in applying those tests in the way in which they have been applied in those other contexts.
McHUGH J: But you have to get over that prima facie claim. I suppose it lends colour to it but obviously, for reasons I have made fairly plain, if you can get over that I think you are in a strong position in relation to the other ‑ ‑ ‑
MR CASTAN: In our respectful submission, it is clear that it is a case of rights which are conferred to those applicants who make a claim for native title and it is not contemplated by this legislation that people are to be shut out from those rights by a determination of a contested or arguable issue of law made before they even get into the process. So that the structure of the Act and the point at which the test is posed affects the question of whether it should be treated as a matter of discretion at all.
GUMMOW J: But Ms Wheeler says that is right, but what you are let into then is these rights to negotiate which, as she explains, are quite significant. She says why should you be let in to do that when there may be no legal substratum for you at all? She uses it in the opposite way you do.
MR CASTAN: Yes, but inherent in what she says is this notion that there may be no legal substratum at all. Inherent in that is what I put a few moments ago, that really, we all know that this is all doomed and it is not going to succeed and so we are just going through some motion of giving people rights that they do not really have - or giving them rights that the Act gives them because they are taking advantage of some unusual uncertainty, but it will all be sorted out in due course by this Court; and it is assumed in what she says, sorted out adversely to the applicants.
DAWSON J: Apart from that, the Act expresses a preference for settlement after negotiation rather than litigation.
MR CASTAN: Yes, your Honour.
KIRBY J: Would you help me on section 148, which is a power, as I understand it, at any time for the Tribunal to dismiss on the grounds that the applicant is unable to make a prima facie case. If it goes back to the Tribunal on the theory that you have been putting to us; is the prima facie case the colour that we have talked of to colour what prima facie case is throughout or, if it went back to the Tribunal, would the Tribunal not be entitled to say, “It is back before us. We made a mistake. We should have knocked it out at first base but it is back to us now. We have the decision of the Full Federal Court and at this level the applicant is unable to make out a prima facie case because of the legal ruling in the Full Federal Court”. I realise that in terms of order it has been set aside, but it is a holding which the Tribunal would be entitled to take into account in considering the question that section 148 poses.
MR CASTAN: Yes, and we would respectfully submit that if it came to the exercise of such a power - and again I stress it is conceivable that that power could be exercised in this case if the mediation is successful and the Tribunal has - but only if the mediation is successful and the Tribunal has to conduct an inquiry of the kind contemplated which would involve section 148. That would not be a contested inquiry because the assumption is that there has been agreement, but it would nevertheless oblige to conduct such an inquiry. So there is one scenario, yes, in which that could occur following a mediated agreement.
In those circumstances, we would respectfully submit that the decision of the Full Federal Court as it currently stands would not govern or determine the issue for the Tribunal in relation to this matter. The Tribunal would be no better off in terms of this particular matter. Assuming the matter, the legal question at issue here, had not otherwise been resolved by this Court by the time we came to such an inquiry in which section 148 became relevant, the Tribunal would not be assisted if all it had was the Full Federal Court’s decision because it would still be left with a matter that ultimately is indeterminate.
Apart from the Full Federal Court’s decision, the majority decision, there is the decision of Justice Lee in dissent, there is the other decision of Justice Lee in the Miriuwung Gajerrong Case that I think has been referred to. So that there is still an open issue, if I might say, notwithstanding a majority of the Full Federal Court has dealt with the matter in a particular way in this case. Until the matter is finally determined, it cannot be said that the applicant is unable to make out a prima facie case, we would respectfully submit.
KIRBY J: Does that not propel those who are negotiating into a position of very considerable uncertainty? It may be beneficial uncertainty but it means that for all the people who are caught up in this Act, an issue is tendered by the conflicting opinions in the Federal Court and the negotiation is carried on in the State of the current majority opinion but in the face of a different opinion which ultimately can only be resolved in this Court.
MR CASTAN: Yes, but, your Honour, that is what the legislators have said and it is not just relating to extinguishment of native title and pastoral leases. There may be many issues as to which there is uncertainty.
KIRBY J: But this is a critical one, we are told by an affidavit, it affects very many cases, very many in every State.
MR CASTAN: Yes, there may be many other ‑ ‑ ‑
KIRBY J: It will not go away and although you say it will take considerable time, with emphasis on the considerable, it will have to be grappled with at some time.
MR CASTAN: Yes, but what your Honour is putting to me is no doubt correct, it will have to be dealt with, there is no question about that, but the legislature perhaps has confidence in processes other than the legal processes as the means of resolving conflict in the community.
KIRBY J: These are duties of imperfect obligation though. You cannot force people; you can require them to come together and negotiate, but if they start from a premise that the law knocks this case out, then the negotiation has an element of the artificial about it.
MR CASTAN: Well, it does if they start with that premise and it does not if they start with the premise that maybe the law does not knock it out. I mean, what the legislature has said is that the legal processes are no doubt our traditional mode of resolving conflict, but there are other means, particularly in this area where the conflicting interests have such diverse starting points, and I do not mean just legally. There are many other diverse aspects of the ways in which these parties are coming together, unrelated to the diversity of view about the legal issues that your Honours referred to.
We in the legal profession, and I include all of us, Judges and counsel, tend to look at issues in terms of the diversity of legal approach or the diversity of legal analysis or legal dispute, but the range of dispute and the range of different perspective on differing world view, if one could put it that way, when parties of this kind come together, are enormous, and experience under the Aboriginal Land Rights Act negotiating procedures for many years now tells one that legal differences may be relevant, but they may turn out to be not the major issues that bring people apart nor resolution of them necessarily that which brings people together. There are wider issues at stake, there are wider interests at stake and there are differing perspectives in the way people look at these problems, and the legislature, we would respectfully submit, is conscious of this, and all those who have had experience in the processes under the Northern Territory legislation are conscious of it, that these matters can be resolved by processes of - there are processes of mutual education about differing world views that do occur.
KIRBY J: Well I have no doubt that there is a lot of good sense in what I understand you to be saying; there are social and economic forces at work here. But there is a Damoclean sword hanging over all of these negotiations in every part of the country and you may get through this negotiation but, ultimately, the issue will have to be addressed. If it is addressed in one particular way there may well be legislative responses. If it addressed another way, the position of your clients is significantly improved in negotiation.
MR CASTAN: Yes.
KIRBY J: You want to negotiate in a state of uncertainty. That seems curious.
MR CASTAN: We want to negotiate because we have a right to negotiate and we are there now and as it turns out that is the state of affairs now. In five years time there may be a different state of affairs in which our rights to native title, subject to showing continuity of connection with land, are absolutely certain and beyond doubt because there has been successful submissions accepted by this Court in relation to pastoral lease land.
I again stress that I respond to your Honour in a context in which no assumption should be made that somehow, really, all this will be resolved in a way that puts all of the native title claimants out of court in relation to pastoral lease land. The assumption should be made that it is an open issue and one must look at the negotiation on the basis that it may be those on the other side of the negotiating table who will be very adversely affected by the decision when it is in due course handed down.
KIRBY J: Well, they may be but they ask us to resolve the point.
MR CASTAN: They do, your Honour, but, in our respectful submission, until it is resolved we have been deprived of the capacity to be there at the negotiating table and that is what the legislature contemplated and to pick up something your Honour put to me yesterday, the legislature contemplated that process would start when the Act was passed. The legislature was aware of the fact there will be open issues that will need resolution by the courts but that if we wait until the courts and the litigators try and resolve it all, nothing will happen and that was said, I think, in the second reading speech that it is necessary to get the process going.
McHUGH J: Paradoxically, uncertainty is more likely to lead to agreement, is it not, rather than - - -?
MR CASTAN: In some instances that will happen. In some instances it will drive people apart, and in some instances it will hover over them but they will find other reasons why, regardless of it, they should come together because of all sorts of other sorts of pressures or interests or concerns. So that, in our respectful submission, it does not follow as a matter of course that, either, it will be decided one way or that the uncertainty will drive people apart. Those who otherwise might not have talked may find it very appropriate to talk given the fact that this issue is uncertain, and vice versa. There are no other matters which we seek to put in reply. If the Court pleases.
BRENNAN CJ: Yes, thank you, Mr Castan. The Court will adjourn now until quarter past two at which time the Court hopes to be in a position to indicate the course which this litigation will further take.
MR CASTAN: Can I mention though, before the Court rises, that the Court has had mentioned to it the possibility of an application being made depending on which way the Court goes to - I think it was put to stay or ‑ ‑ ‑
TOOHEY J: Suspend, I think.
MR CASTAN: Suspend any decision for at least some days. I think I should indicate to the Court that ‑ ‑ ‑
TOOHEY J: Is was not the suspension of a decision. It was the suspension of any order that might be made.
MR CASTAN: The suspension of making of any order. Yes, well, perhaps all I need to indicate is that we would not oppose such an application.
BRENNAN CJ: Perhaps if the occasion arises, if any order were made, I think the appropriate course would then be to call upon those affected by the order to say what they want to say about the suspension of the order for any period of time.
MR CASTAN: If the Court pleases.
BRENNAN CJ: The Court will adjourn till 2.15.
AT 12.42 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
BRENNAN CJ: The Court has come to a conclusion which allows it now to make an order in this matter. The order of the Court is:
1.The applicants have special leave to appeal from the whole of the judgment of the Full Court of the Federal Court of Australia given on 1 November 1995.
2. The appeal be allowed with costs.
3The orders of the Full Court of the Federal Court made 1 November 1995 be set aside.
4.In lieu of the said orders of the Full Court of the Federal Court, order:
(i)that the appeal from the decision of the President of the National Native Title Tribunal dated 14 February 1995 be allowed with costs;
(ii)that the decision of the President of the National Native Title Tribunal dated 14 February 1995 be set aside;
(iii)that the President direct the Registrar of the National Native Title Tribunal pursuant to section 63(3)(b) of the Native Title Act 1993 (Cth) to accept the applicants’ Application for a Determination of native title No QN 94/9 which was lodged on 24 June 1994.
I said earlier that the appeal would be allowed with costs. I should have said the appeal will be allowed and the Court will now hear argument as to a stay of this judgment and as to costs. It will not be necessary I think for the Court further to consider the application by Mr McIntyre for leave to intervene.
I should make it clear, as is obvious, that the Court has considered, of course, only the first of three points that was raised and the order that has been made is based, of course, upon the course that the argument has taken.
MR CASTAN: May it please the Court, I ask for an order for costs. It is put that costs should follow the event in the usual way and that in the circumstances - subject to any stay, of course - that the order should include ‑ ‑ ‑
TOOHEY J: Although the Court has not found it necessary to reach the second and third grounds on which special leave is sought?
MR CASTAN: Yes, your Honour. We brought the application on three grounds. It is determined on one, and we succeeded. It is respectfully submitted we are entitled to our costs of the application and the appeal.
BRENNAN CJ: We will hear from the respondents.
MR KEANE: Your Honours, in relation to the application for costs, we accept costs should follow the event in favour of the applicants, having regard to the success. In our submission, it would be appropriate that some order be made limiting those costs to the costs incurred in relation to the first question. One does not wish to rehearse the history of events but the fact is that the ground on which the applicants have succeeded was a ground not originally taken in the application for special leave; was added by leave on 15 December and the matters which have brought us here did involve incurring a substantial cost in relation to issues which our learned friends for the applicants have invited the Court not to deal with. In our respectful submission, the applicants should not have the totality of the costs of the case; there should be some order limiting those costs.
Your Honours, might I say that on behalf of the State of Queensland, we are instructed to support any application for a stay or suspension of the order foreshadowed by our learned friends for the second respondents.
BRENNAN CJ: Yes, thank you, Mr Solicitor. Mr Fraser?
MR FRASER: Your Honours, my clients do not wish to be heard on the question of costs. Do your Honours wish to hear me on the application for a partial stay?
BRENNAN CJ: Yes. You do not wish to say anything with regard to costs?
MR FRASER: No, your Honour.
BRENNAN CJ: All right.
MR FRASER: In relation to the stay the application relates only to the third aspect of the fourth order of the Court which is the order, in effect, directing - which will result in the acceptance of the application. In that respect, your Honour, the purpose of the application for a stay of the implementation of the order, which I might mention is unopposed by the applicants, as I understand it, and the State, is to facilitate the continuation of long-standing negotiations in an attempt to lead to a resolution which would permit the commencement of a mining project within a particular time frame. So far as that is concerned, the application is for a stay of the implementation of the order for five days. It is not sought to stay any other order and in terms of the Court making the order, may I mention that given the attitude of all of the parties to the litigation and the underlying philosophy of the Act which would, no doubt, be reflected in the Court’s reasons for making the orders it has made it would, in my submission, be appropriate to make the order which is sought.
BRENNAN CJ: What is the form of order which you would seek?
MR FRASER: An order that the implementation of order No 4.3 be stayed for five days from today’s date.
McHUGH J: Is five days sufficient? There will be a weekend intervening.
MR FRASER: I can only say five days because, to date, my instructions are that that is what is unopposed.
McHUGH J: Thank you, Mr Fraser.
MR FRASER: I have got some more up-to-date information, your Honour. I am told that what is unopposed is “until 4.15 pm on 13 January, 1996”.
GAUDRON J: February.
TOOHEY J: That will not help you very much, will it?
MR FRASER: 14 February 1996- I was reading the words, your Honours, and in a spirit that underlies the application. I am content with that. That is all I wish to say.
BRENNAN CJ: Yes, thank you, Mr Fraser. Mr Castan?
MR CASTAN: The application for a stay in those terms is not opposed, your Honour.
BRENNAN CJ: Yes.
MR CASTAN: So far as costs, we press the request for costs in the terms in which we have sought them.
BRENNAN CJ: The Court will adjourn briefly in order to consider the application for costs.
AT 2.29 PM SHORT ADJOURNMENT
UPON RESUMING AT 2.36 PM:
BRENNAN CJ: The formal order of the Court reads as follows. The order of the Court is:
1.The applicants have special leave to appeal from the whole of the judgment of the Full Court of the Federal Court of Australia given on 1 November 1995.
2. The appeal be allowed.
3.The orders of the Full Court of the Federal Court made 1 November 1995 be set aside.
4.In lieu of the said orders of the Full Court of the Federal Court, order:
(i)that the appeal from the decision of the President of the National Native Title Tribunal dated 14 February 1995 be allowed with costs;
(ii)that the decision of the President of the National Native Title Tribunal dated 14 February 1995 be set aside;
(iii)that the President direct the Registrar of the National Native Title Tribunal pursuant to section 63(3)(b) of the Native Title Act 1993 (Cth) to accept the applicants’ Application for a Determination of native title No QN 94/9 which was lodged on 24 June 1994.
5.Order that order 4(iii) be stayed until 4.00 pm on 13 February 1996.
6.Order the respondents to pay the applicants the costs of this appeal limited in the case of the first respondent to the costs incurred in or in connection with paragraph 2(aa) of the grounds of appeal in the amended draft notice of appeal.
The reasons for this judgment and order will follow in due course. Adjourn the Court until 10.15 am on Monday next.
AT 2.38 PM THE MATTER WAS CONCLUDED
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