Shane John Mortimer v Land Development Agency
[2012] ACTSC 158
•19 October 2012
SHANE JOHN MORTIMER v LAND DEVELOPMENT AGENCY
[2012] ACTSC 158 (19 October 2012)
ABORIGINALS – Land Rights – application for an injunction – common law native title claim
Commonwealth of Australia Constitution Act 1900 (UK)
Human Rights Act 2004 (ACT), s 8
Native Title Act 1993 (Cth)
Australian Broadcasting Corporation v O’Neill [2006] HCA 46
Fejo v Northern Territory (1998) 195 CLR 96
Mabo v Queensland (No.2) (1992) 175 CLR 1
No. SC 104 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 19 October 2012
IN THE SUPREME COURT OF THE )
) No. SC 104 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:SHANE JOHN MORTIMER
Applicant
AND: LAND DEVELOPMENT AGENCY
Respondent
ORDER
Judge: Burns J
Date: 19 October 2012
Place: Canberra
THE COURT ORDERS THAT:
The application for an injunction is refused.
Background
On 23 April 2012 the applicant filed in this Court an Originating Application dated 18 April 2012 seeking the following:
Interlocutor (sic) Injunction to stop land sales at Lawson by the LDA or any other developer until Common Law Native Title determination and settlement with me has been finalised.
This application is supported by an affidavit affirmed by the applicant on 5 April 2012, which states:
As Traditional Owner of the proposed sub-division by the LDA at Lawson ACT, that my COMMON LAW NATIVE TITLE to the land has not been considered in relation to this proposed sub-division and that the sale of any land or the sub-division of the land is not to proceed.
(original emphasis)
On 29 May 2012 the respondent filed in this Court an Application in Proceedings dated 28 April 2012 seeking that the applicant’s Originating Application be dismissed.
No process seeking substantive relief has been lodged by the applicant.
The applicant’s argument
According to his written submissions filed 14 May 2012, the applicant claims equitable relief on the grounds that his rights under s 8 of the Human Rights Act 2004 (ACT) have been violated in relation to his common law property rights. To this end, the applicant argues that his common law native title has been ignored due to his race.
The applicant raises issues regarding the interplay between common law native title rights and interests and the extinguishment of said rights and interests by Commonwealth and Territory legislation.
The applicant also submits that his common law native title property rights over the proposed subdivision of the land in the suburb of Lawson in the Australian Capital Territory (Lawson) have not been addressed according to law, particularly the Native Title Act 1993 (Cth) and the Commonwealth of Australia Constitution Act (the Constitution). The applicant claims that the onus is on the Crown, and by this one assumes the applicant refers to the Commonwealth, to prove valid extinguishment of common law native title. In the current matter, the applicant claims that the Crown is not able to prove valid extinguishment of the applicant’s common law native title over the land in the suburb of Lawson in the Australian Capital Territory, and accordingly any subdivision would be unlawful.
Finally, the applicant also seeks for the hearing of this matter to be transferred to the Federal Court, as the matter concerns constitutional and native title matters.
The respondent’s argument
The respondent’s arguments for the dismissal of the applicant’s claim are outlined in a letter to the applicant dated 29 May 2012. According to that document, the respondent argues that the applicant has sought an injunction from this Court without having satisfied the requirements of an injunction. On that basis, the respondent seeks that the applicant’s application be struck out.
On the serious issue to be tried, namely the applicant’s common law native title claim, the respondent argues that native title over the land at Lawson was extinguished in 1833 and 1836 by sale of the relevant land by the Crown to a private land owner; a Mr George Palmer. According to the New South Wales Register of Deeds, Mr Palmer was given a fee simple title, which was then compulsorily acquired by the Commonwealth in 1915.
The respondent notes that the case of Mabo v Queensland (No.2) (1992) 175 CLR 1 supports their argument regarding the extinguishment of common law native title. Specifically in the joint judgment of Deane and Gaudron JJ at [23]:
The third limitation is related to both the first and the second. It is that common law native title, being merely a personal right unsupported by any prior actual or presumed Crown grant of any estate or interest in the land, was susceptible of being extinguished by an unqualified grant by the Crown of an estate in fee or of some lesser estate which was inconsistent with the rights under the common law native title.
And again at [60]:
The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession.
Ultimately the respondent submits that there is no substantial issue to be tried and accordingly any transfer of the current matter to the Federal Court would be fruitless.
Consideration
The applicant must first satisfy the requirements for the granting of an interlocutory injunction. The High Court in the matter of Australian Broadcasting Corporation v O’Neill [2006] HCA 46 set out the grounds upon which an interlocutory injunction can be awarded:
The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
The first step in ascertaining whether the applicant has satisfied the grounds for the granting of an interlocutory injunction is establishing whether the applicant has made out a prima facie case.
The applicant submits that his common law native title over the land at Lawson makes unlawful any subdivision or sale of the said land. However, as stated above at [9], any alleged native title held by the applicant over the land was extinguished when the land was sold by the Crown to a private land owner in a grant of fee simple.
The matter of Fejo v Northern Territory (1998) 195 CLR 96 sets out the effect of a grant of fee simple on native title at [43]:
... Native title is extinguished by a grant in fee simple. And it is extinguished because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title. An estate in fee simple is, "for almost all practical purposes, the equivalent of full ownership of the land" (see Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 656) and confers "the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination" (see The Commonwealth v New South Wales (1923) 33 CLR 1 at 42). It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title.
It is clear that a grant of fee simple has the effect of extinguishing native title. Accordingly, the sale of the land at Lawson by the grant of fee simple to a private land owner in 1833 and 1836 effectively extinguishes any subsequent claim of native title over the land. The applicant has not demonstrated that he has a prima facie case, and the application for an injunction is refused.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 19 October 2012
Solicitor for the plaintiff: The plaintiff appeared in person
Counsel for the defendant: Mr C Erskine SC
Solicitor for the defendant: ACT Government Solicitor
Date of hearing: 1 June 2012
Date of judgment: 19 October 2012
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