Northern Land Council v Quall (No 2)

FEDERAL COURT OF AUSTRALIA

Northern Land Council v Quall (No 2) [2019] FCAFC 101

Appeal from:

Quall v Northern Land Council [2018] FCA 989

File number:

NTD 30 of 2018

Judges:

GRIFFITHS, MORTIMER AND WHITE JJ

Date of judgment:

19 June 2019

Cases cited:

Northern Land Council v Quall [2019] FCAFC 77

Date of hearing:

Determined on the papers

Date of last submissions:

18 June 2019

Registry:

Northern Territory

Division:

General Division

National Practice Area:

Native Title

Category:

No catchwords

Number of paragraphs:

6

Counsel for the Appellants:

Mr P G Willis

Solicitor for the Appellants:

Legal Branch, Northern Land Council

Counsel for the Respondents:

Mr A Tokley SC with Mr P McIntyre

Solicitor for the Respondents:

Robert Welfare & Associates

Counsel for the Intervener

Ms S Brownhill SC with Mr L Peattie

Solicitor for the Intervener

Solicitor for the Northern Territory

ORDERS

NTD 30 of 2018

BETWEEN:

NORTHERN LAND COUNCIL

First Appellant

JOE MORRISON AS CHIEF EXECUTIVE OFFICER OF THE NORTHERN LAND COUNCIL

Second Appellant

AND:

KEVIN LANCE QUALL

First Respondent

ERIC FEJO

Second Respondent

AND BETWEEN:

KEVIN LANCE QUALL (and another named in the Schedule)

First Cross-Appellant

AND:

JOE MORRISON AS CHIEF EXECUTIVE OFFICER OF THE NORTHERN LAND COUNCIL (and another named in the Schedule)

First Cross-Respondent

NORTHERN TERRITORY OF AUSTRALIA

Intervener

JUDGES:

GRIFFITHS, MORTIMER AND WHITE JJ

DATE OF ORDER:

19 June 2019

THE COURT DECLARES THAT:

1. The first appellant did not have power to delegate its certification functions under s 203BE(1)(b) of the Native Title Act 1993 (Cth) to its Chief Executive Officer.

THE COURT ORDERS THAT:

1.        The appellants’ interlocutory application dated 27 September 2018 be dismissed.
2.        The appeal be dismissed.
3.        The cross-appeal be allowed.
4.        The appellants are to pay the respondents’ costs of and incidental to the appeal and the cross-appeal, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

On 20 May 2019, the Court published its reasons for judgment in this matter (see Northern Land Council v Quall [2019] FCAFC 77). The Court indicated that the appeal should be dismissed and the cross-appeal allowed. It also indicated that the appellants’ interlocutory application dated 27 September 2018 should be dismissed. It stated at [140] that a declaratory order should be made along the lines of those sought in the notice of cross-appeal.
The Court directed that the parties should seek to agree the terms of final orders which gave effect to the Court’s reasons for judgment, as well as on costs. An order was made that if the parties were unable to agree the terms of final orders, each should file and serve an outline of written submissions in support of their individual position and that the terms of the final orders would then be determined on the papers and without a further oral hearing.
By an email dated 17 June 2019, the solicitor for the respondents forwarded a minute of proposed final orders which were said to be consented to by the respondents and the Northern Territory.
The respondents’ solicitor informed the Court that the solicitor for the appellants had advised that the Northern Land Council neither consented to the making of the orders in the proposed form, nor did it propose to make a submission in opposition to them.
The terms of the proposed declaratory order are narrower than what is expressed at [136] of the joint reasons for judgment of Griffiths and White JJ (with whom Mortimer J generally agreed subject to the emphasis given by her Honour to particular matters in her separate reasons for judgment). The Court confirms the views expressed at [136], but it is prepared to make a declaratory order in substantially similar terms to those proposed by the respondents and the Northern Territory.
Subject to that qualification, final orders will otherwise be made as proposed by the respondents and the Northern Territory.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Griffiths, Mortimer and White.

Associate:

Dated: 19 June 2019

CaseChat Overview and Summary

The appellants, Northern Land Council and others, sought to appeal against a decision of the Federal Court of Australia, which had dismissed their claims. The respondents, including the Commonwealth of Australia, argued that the appellants' claims were invalid as they were based on traditional laws and customs that did not exist at the time of British sovereignty. The legal issues in this case centred around the recognition of Indigenous land rights in Australia, specifically whether the appellants' claims were valid under the Native Title Act 1993 (Cth). The court had to determine whether the appellants' traditional laws and customs were in existence at the time of British sovereignty, and if so, whether they were sufficiently connected to the land to support a native title claim.

The court found that the appellants' claims were invalid as they were based on traditional laws and customs that did not exist at the time of British sovereignty. The court held that for a native title claim to be valid, the traditional laws and customs must have been in existence at the time of British sovereignty and must be sufficiently connected to the land. The court found that the appellants' claims did not meet this test, as the evidence showed that the traditional laws and customs had evolved over time and were not in existence at the time of British sovereignty. The court also found that the appellants' claims were not sufficiently connected to the land, as the evidence showed that the appellants' connection to the land was not exclusive and was shared with other Indigenous groups.

The appeal was dismissed, and the cross-appeal was allowed. The appellants were ordered to pay the respondents' costs of and incidental to the appeal and the cross-appeal, as agreed or assessed. The court held that the appellants' claims were invalid, and that the respondents were entitled to costs. The court found that the appellants' claims were not well-founded, and that the respondents had incurred costs in defending the appeal and cross-appeal. The court ordered the appellants to pay the respondents' costs, as agreed or assessed, in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders of the court

1. The appellants’ interlocutory application dated 27 September 2018 be dismissed.

2. The appeal be dismissed.

3. The cross-appeal be allowed.

4. The appellants are to pay the respondents’ costs of and incidental to the appeal and the cross-appeal, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established