Santo v David - [2010] FCA 42

FEDERAL COURT OF AUSTRALIA
Santo v David [2010] FCA 42

Citation: Santo v David [2010] FCA 42

Parties: PANCHO SANTO and CYRIL SANTO v ANNIE DAVID

File number(s): QUD 152 of 2007

Judge: LOGAN J

Date of judgment: 5 February 2010

Catchwords:
ABORIGINES – Application by members of one of the families of a Torres Strait Island People – Prior determination by the Court under the Native Title Act of the existence of communal native title rights and interest in respect of island land, including the subject land – Family part of the People determined to hold native title rights - Construction of dwelling on land alleged to be an act affective native title to be an act affecting native title and invalid – Declaratory and injunctive relief sought – Whether Applicants have standing to bring application – Where native title holder rights and interests held by determination by a prescribed body corporate holding interests on trust – Where prescribed body corporate not a party to application – Held Applicants do not have standing – Held application dismissed

Legislation:
Native Title Act 1993 (Cth) ss 13, 55, 56, 57, 61, 68, 87, 211, 223, 224, 225, 240A

Native Title (Prescribed Body Corporate) Regulations 1999 (Cth) reg 6

Cases cited: Mye on behalf of the Erubam Le v State of Queensland [2004] FCA 1573 applied
Town Investments Ltd v Department of Environment [1978] AC 359 cited
Bathurst City Council v PWC Properties Pty Limited (1998) 195 CLR 566 cited
Mabo v Queensland (No 2) (1992) 175 CLR 1 cited
Bodney v Bennell (2008) 167 FCR 84 considered

Date of hearing: 2 October 2009

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 44

Counsel for the Applicants: Mr D Honchin

Solicitor for the Applicants: Bevan & Griffin Solicitors

Solicitor for the Respondent: No appearance by the Respondent

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 152 of 2007

BETWEEN:
PANCHO SANTO
First Applicant

CYRIL SANTO
Second Applicant

AND:
ANNIE DAVID
Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

5 FEBRUARY 2010

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 152 of 2007

BETWEEN:
PANCHO SANTO
First Applicant

CYRIL SANTO
Second Applicant

AND:
ANNIE DAVID
Respondent

JUDGE:

LOGAN J

DATE:

5 FEBRUARY 2010

PLACE:

BRISBANE

REASONS FOR JUDGMENT

Messrs Pancho Santo and Cyril Santo (the Applicants) claim to be members of the Erubam Le people, inhabitants of Erub (Darnley Island) in the Torres Strait. They further claim that a dwelling has been constructed without their permission on Erub on land known as “Zaum” or “Zaum Keriem”. For present purposes I assume all of this in their favour.
The Applicants allege that this land is traditionally owned and occupied by members of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Santo v David

Details

AGLC: Santo v David [2010] FCA 42
Case: [2010] FCA 42
Decision Date

CaseChat Overview and Summary

The case of Santo v David involves Pancho Santo and Cyril Santo, members of the Erubam Le people of Erub (Darnley Island), who brought proceedings against Annie David, claiming that a dwelling was constructed on their traditional land, Zaum, without their permission. The applicants sought removal of the dwelling and restoration of the land. The applicants argued that they had standing to bring the proceedings despite the native title rights and interests being held in trust by the Erubam Le Traditional Land and Sea Owners (Torres Strait Islanders) Corporation. The central legal issue was whether the applicants had standing to bring the proceedings given the native title rights and interests were held in trust by a prescribed body corporate. The Court found that the applicants did not have standing to bring the proceedings. The determination under the Native Title Act 1993 resulted in the native title rights and interests being held in trust by the prescribed body corporate, not the applicants. Consequently, the prescribed body corporate has the standing to seek vindication or enforcement of the native title rights and interests. The applicants' role is indirect, limited to directing the prescribed body corporate to perform a function relating to native title. The Court held that the Native Title Act and the relevant regulations comprehensively address the question of standing, leaving no residual common law role for the applicants. The application was dismissed for lack of standing.

The Federal Court of Australia ordered that the application be dismissed.

Orders