Risk v NT

[2001] HCATrans 521

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D13 of 2000

B e t w e e n -

WILLIAM MAXWELL RISK

Applicant

and

THE NORTHERN TERRITORY OF AUSTRALIA

First Respondent

THE HON JUSTICE H.W. OLNEY

Second Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 SEPTEMBER 2001, AT 9.26 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   If the Court please, I appear with MR S.A. GLACKEN for the applicant in this matter.  (instructed by the Northern Land Council)

MS R.J. WEBB:   If the Court pleases, I appear for the first respondent.  (instructed by Solicitor for the Northern Territory)

GAUDRON J:   I hold a certificate from the Deputy Registrar to the effect that she holds a letter from the Australian Government Solicitor informing him that the second respondent submits to any order of the Court, save as to costs.

I think the Court would be advantaged by hearing first from you, Ms Webb.

MS WEBB:   Thank you, your Honour.  Your Honour, if I could explain that the genesis for this application was a jurisdictional issue that was raised before the Aboriginal Land Commissioner and it was an essential question for him to answer before he could commence to inquire under the Aboriginal Land Rights (NT) Act.

KIRBY J:   It is under the Northern Territory Act, but it does overlap in some ways with some of the arguments that you would know of that we heard in Yarmirr and, therefore, it would seem that it ought not to be closed out now, at least until Yarmirr is delivered and on the face of things, the construction that has been adopted, albeit in the special context of a different statute which does not have many of the provisions that were debated n Yarmirr does suggest that there is a really serious and important arguable point to be looked at by the Court.

MS WEBB:   With respect, your Honour, the issues that your Honour would be referring to in Yarmirr I would take to be the question of the use and occupation of the seabed.

KIRBY J:   It was the argument that the common law ceased at the point of the low watermark and that, in that context of the federal statute which, of course, incorporates the common law principle, you do not go beyond that in respect of the seabed.  Now, here you do not have the same structure of the Act, you do not have the same provisions, you do not have the very, very many references to water that exist in the federal statute, but you do have a very important question concerning the meaning of the word “land” in the context of your statute and it does seem to me that we and the parties would be better in a position to debate that question and pass upon it finally, affecting as it does many people, with the benefit of Yarmirr and with the assistance before a Full Court of this Court.  That is at least my present feeling about the matter.

MS WEBB:   Your Honour, if I could turn to that.  There is, of course, in the Native Title Act, definition of “land” and definition of “water” which makes very clear the division as to that and, of course, the Native Title Act is concerned with the recognition of native title rights and interests.  What, however, the Aboriginal Land Rights Act does, is something different.  What it does, is it in fact, in essence, an Act that looks to convert a traditional title or an Aboriginal ownership to a fee simple under the Act.  So what it does is confer or give the opportunity for the Commissioner to inquire, to make recommendations to the Minister, who may then grant fee simple under the Act to the land trust to be held for the benefit of traditional Aboriginal owners.

If we keep that concept in mind, what we are dealing with here is whether, in the context of the Land Rights Act, “land” extends or includes the seabed.  There are different indications in the Land Rights Act quite separate from the indications you might look for in the Native Title Act.  We say that “land” does not.  It is not an issue that we see as depending on the outcome of Yarmirr.  It may be that if it were to be found that “land” did include the seabed, the question as to whether or not there would be a finding of traditional ownership in respect of the seabed, may bear some relationship to what comes out of Yarmirr.

The question of whether land that can be claimed includes the seabed, in our respectful submission, does not.  That turns entirely, we say, on the context of this Act.  Indeed - - -

KIRBY J:   We do have the instruction of Chief Justice Gibbs in Jurlama that the word has to be given in this context a very broad construction given the nature of the statute?  If one takes that view, why does it not include the seabed?

MS WEBB:   Your Honour, the first point ‑ ‑ ‑

KIRBY J:   In a sense the intellectual starting point is that it is something which it is asserted, a matter still be determined, that is important as part of the traditional law of the Aboriginal people of this country.

MS WEBB:   Indeed, your Honour, we accept that in respect of traditional interests that certainly Aboriginal people see the sea country as part of their land.  That is not the question here.  What you have in the Land Rights Act is some particular indications that it was not intended that the seabed would be claimable or the subject of a grant under that Act.  Your Honour, one of the indications is, in fact, the definition of “traditional owner”.  It is the essential definition, and it is in section 3 of the Act.  It is both of the books of material, your Honour.  Perhaps the easiest that I have picked up is in the material of the applicant’s at page 6.

KIRBY J:   Yes.

MS WEBB:   And it is the second part of that definition that I draw your Honours’ attention to.

KIRBY J:   This is the word “forage”?

MS WEBB:   It is the word “forage”.  Now, it is not conclusive but it is an essential part of the definition of “traditional owner” and, therefore, traditional ownership is an entitlement to forage over land and there are some conceptual difficulties with foraging over a permanently submerged seabed but there is also a focus in the Land Rights Act on use or occupation of land by Aboriginal people and at footnote 18 of our summary of argument we have made reference to a number of the provisions that refer to “use or occupation of the land by Aboriginal people”, and it is in this context that we see some difficulty.  There is also a conceptual difficulty there.  There are references:  section 69, 70 and 71 which, your Honours, I do not think are, indeed, in either of the lots of material.

KIRBY J:   Just tell us what it says.

MS WEBB:   If I could just tell you about those sections.  Section 69 is in respect of sacred sites.  It says:

Except in the performance of functions under this Act or otherwise in accordance with this Act or a law of the Northern Territory, a person shall not enter or remain on land in the Northern Territory that is a sacred site.

KIRBY J:   But what does that prove?  That is just a special offence.

MS WEBB:   It is, your Honour.

KIRBY J:   Let it be that that can only be performed on land.  What does that matter?

MS WEBB:   Your Honour, it is just indication through the Act that we are talking about, we would say land that is capable of being entered upon.  More importantly, however, is section 73, the regime in section 73, which, indeed, sets up a regime with respect to a complementary legislation whereby there is a separate regime in respect of land, we would say, and a separate regime in respect of sea and it is particularly section 73(1)(d) that I draw your Honour’s attention to and that is with respect to enabling the Legislative Assembly of the Northern Territory to make laws:

regulating or prohibiting the entry of persons into, or controlling fishing or other activities in, waters of the sea ‑ ‑ ‑

KIRBY J:   But these are special circles, but the question is, is there a large, embracing outer circle which includes in the notion of “land”, the land which is undoubtedly land, of the seabed.  We have a dissenting opinion of Justice Merkel.  We have a word “land”, which is not defined in the statute which is, at least, capable upon one view of embracing sea land.  We have the fact that it is extremely important to all communities in the Northern Territory, including the Aboriginal people.

It is just one further issue at the boundary and intersection of our law and Aboriginal customary law in the special context of the Northern Territory Act and there is a lot of sea land off the Northern Territory and a lot of Aboriginal people and, therefore, on the face of things, it is a matter which engages the attention of this Court.  You might ultimately succeed.  I do not think the forage argument is a very strong one but the last one that you put is an important matter to be considered.  But if you add to all those ingredients Chief Justice Gibbs’ instruction that we should look on it beneficially, it is strongly arguable and, therefore, it ought to be considered, I think.

MS WEBB:   Your Honour, might I answer that by saying it is, indeed, a question of statutory construction which applies only to a Northern Territory Act. 

KIRBY J:   If Justice Callinan were here, he would fall off his chair.  We are the Supreme Court of the Northern Territory as well, that is to say, the Federal Supreme Court of the country. 

MS WEBB:   I apologise, your Honour.  It is a Commonwealth Act, of course, with application only in the Northern Territory, specific ‑ ‑ ‑

KIRBY J:   You have given me a seventh reason. 

MS WEBB:   May I take back what I said.  It is indeed a Commonwealth Act with application only in the Northern Territory, and only in very specific circumstances.  Indeed, the interpretation of “land” in this Act, and in the context of the Act, simply cannot have any application to the interpretation of “land” in other Commonwealth statutes, applicable elsewhere in the country.  That is why we say it really should be not a matter that this Court would want to be concerned with. 

GAUDRON J:   But the Commonwealth Interpretation Act would bear on this Act. 

MS WEBB:   Indeed, your Honour, that is so.  That is, in fact, one of the arguments that the applicants put for special leave in this case.  Might I answer that by saying that the suggested conflict that there is between what Justice Mason did in Goldsworthy, and how the majority approached it in this case, is actually more apparent than it is real, because if you consider closely what Justice Mason did, what Justice Mason was considering in Goldsworthy ‑ ‑ ‑

KIRBY J:   That was in the Income Tax Assessment Act, was it not? 

MS WEBB:   It was an Income Tax Assessment Act, your Honour.  The case is Goldsworthy Mining Limited v The Commissioner of Taxation (1973) 128 CLR 199. It is in the material provided, at tab 4 of the material that has been provided. What Justice Mason was considering in that case was the question of a dredging lease which included the seabed. The focus was not on whether or not the seabed was land; the focus of the decision was on the use made of the seabed. As I understand it, it was not in contention before his Honour whether “land” comprehended the seabed, but it was something that his Honour did address in ‑ ‑ ‑

KIRBY J:   I think we have to be rather careful about using judicial observations about the Income Tax Assessment Act and bringing it into this Act.  There are different contexts, different principles, different purposes. 

MS WEBB:   Precisely, your Honour.  That is the point that I am striving to make.  It is, in fact, entirely in the context of this Act.  What his Honour said was that there was no – at page 210, point 7 of the page: 

the independent question whether the subject matter of the dredging lease is “land” within the meaning of s. 88(2) of the Income Tax Assessment Act, but for present purposes that question may be put to one side.  There is no reason for thinking that, at common law, a lease cannot be granted of portion of the sea-bed, provided that the property the subject of the grant is defined with sufficient certainty.  There may be some question whether the sea-bed answers the description of “land” in every sense in which that word is used. 

KIRBY J:   That is all you need, and you have to then say:  well, legging up from that, it does not apply to land in this context, but ‑ ‑ ‑

MS WEBB:   Indeed. 

KIRBY J:    ‑ ‑ ‑ it is still, I mean, it is land.  It is land in the ordinary meaning of that word.  It is part of the earth’s surface, above the crust, and therefore, prima facie, it is land, and it is land in a beneficial statute.  But what we would have to do is, as you were suggesting, we would have to look at the whole structure of the Act and every provision that it makes in relation to water, and whether this fits into what this federal statute was endeavouring to do before Mabo, because it did not have the enlightenment of Mabo when it approached the matter. 

MS WEBB:   In addition to looking at the statute, your Honour, there would be a need in this case to look to the very unique legislative history that has happened with this Act and that, we say, confirms what we say about the intention of the legislature or the meaning of “land” in the Land Rights Act, particularly in respect of perhaps the scheduled land which was the Aboriginal reserve land which was granted only to low watermark, despite the recommendation of Justice Woodward that there be a buffer zone ‑ ‑ ‑

KIRBY J:   Yes, the history is on your side, it seems, at the moment, but subject to what the applicant says.  You put it very persuasively and it might ultimately be that you will succeed, but it still is an arguable point and important, it seems to me.

MS WEBB:   Your Honour, I accept what you are saying about it certainly being an important point for ‑ ‑ ‑

KIRBY J:   You just say that the Court of Appeal majority got it right and we do not need to trouble ourselves.  Well, Justice Merkel did not agree, there is a dissent and it is important and arguable, and “land” includes, on the face of things, sea land, unless the structure of the Act and its purpose and history and other provisions take it outside, so - - -

MS WEBB:   Your Honour, perhaps if I could just have one last attempt and that is to say we understand that as a point of great significance to Aboriginals in the Northern Territory who have made claims to the seabed under this Act, but it is the construction of that Act that is applicable only in the Northern Territory.  We say it just simply does not raise any important question as to general rules of statutory construction that would normally command the grant of special leave.  Your Honours, there is nothing further.

GAUDRON J:   Thank you, Ms Webb.  We need not trouble you, Mr Basten. 

There will be a grant of special leave in this case.

The Court will now adjourn briefly to reconstitute for the next matter

AT 9.45 AM THE MATTER WAS CONCLUDED