Ward, Ben v The State of Western Australia

[1995] FCA 1064

CATCHWORDS

PRACTICE AND PROCEDURE  -  preliminary questions  -  question of effect on native title of grant of pastoral lease  -  whether appropriate to determine questions in separate hearing.

Administrative Decisions (Judicial Review) Act 1977
Judiciary Act 1903 s 39B
The Land Act 1933 (W.A.) sub-s 106(2)
Native Title Act 1993 ss 13, 61, 74

Carl Zeiss Stiftung v. Herbert Smith & Co. [1969] 1 Ch 93
Delgamuukw v. British Columbia (1993) 104 D.L.R. (4th) 470
Famel Pty. Ltd. v. Burswood Management Ltd. [1990] A.T.P.R. 41,004
Kruger v. The Commonwealth, Unreported (High Court of Australia, Brennan J., 4 October 1995)
Mabo v. The State of Queensland (No. 1) (1988) 168 C.L.R. 186
Mabo v. The State of Queensland (No. 2) (1992) 175 C.L.R. 1
North Ganalanja Aboriginal Corporation v. The State of Queensland, Unreported (Federal Court of Australia, Full Court, 1 November 1995)
Northern Territory v. Lane, Unreported (Federal Court of Australia, O'Loughlin J., 24 August 1995)
Rocklea Spinning Mills Pty. Ltd. v. Anti-Dumping Authority (1995) 129 A.L.R. 401
Wik Peoples v. State of Queensland, Unreported (Federal Court of Australia, Drummond J., 26 May 1994)

BEN WARD AND OTHERS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES V. THE STATE OF WESTERN AUSTRALIA AND OTHERS
WAG 6001 OF 1995

LEE J.
PERTH
21 DECEMBER 1995

IN THE FEDERAL COURT      )
OF AUSTRALIA  )
WESTERN AUSTRALIA          )
DISTRICT REGISTRY              )
GENERAL DIVISION               )          NO. WAG 6001 OF 1995

B E T W E E N:  BEN WARD AND OTHERS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES

Applicants

and

THE STATE OF WESTERN AUSTRALIA AND

OTHERS

Respondents

MINUTE OF ORDER

JUDGE MAKING ORDER:    LEE J.
DATE OF ORDER:        21 DECEMBER 1995
WHERE MADE:           PERTH

THE COURT ORDERS THAT:

1.(a)Notice of Motion of the first respondents filed 30 June 1995 be dismissed.

(b)Costs reserved.

2.(a)Notice of Motion of the second respondent filed 30 June 1995 be dismissed.

(b)Costs reserved.

1. The Commonwealth Attorney-General be given leave to intervene in this proceeding.

THE COURT ORDERS THAT:

The matter be set down for directions in Kununurra on 15 March 1995.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT      )
OF AUSTRALIA  )
WESTERN AUSTRALIA          )
DISTRICT REGISTRY              )
GENERAL DIVISION               )          NO. WAG 6001 OF 1995

B E T W E E N:  BEN WARD AND OTHERS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES

Applicants

and

THE STATE OF WESTERN AUSTRALIA AND

OTHERS

Respondents

CORAM:        LEE J.
DATE :    21 DECEMBER 1995
PLACE:          PERTH

REASONS FOR JUDGMENT

The applicants claim to hold native title in relation to a substantial area of land situated in the Kimberley region of Western Australia extending into the Northern Territory. The applicants have applied under s.61 of the Native Title Act 1993 ("the Act") for the determination of native title in respect of that area pursuant to s.13 of the Act. The application was accepted by the National Native Title Tribunal ("the Tribunal") and lodged with the Court for decision pursuant to s.74 of the Act. Two of the respondents to the application, the State of Western Australia ("the State") and the Northern Territory of Australia ("the Territory"), commenced proceedings in this Court under the Administrative Decisions (Judicial Review) Act 1977 ("A.D.J.R. Act") and s.39B of the Judiciary Act 1903 seeking orders to review the decision of the Registrar of the Tribunal to accept
the applicants' application for the determination of native title.  By consent the Court ordered that certain "preliminary matters" be determined separately in those proceedings pursuant to O.29 r.2(a) of the Federal Court Rules ("the Rules").  A number of questions were dealt with in that separate hearing and it was held that the Registrar had not erred in accepting the application.  (See:  Northern Territory v. Lane, Unreported (Federal Court of Australia, O'Loughlin J., 24 August 1995.)

The claim area in Western Australia can be described as vacant Crown land, reserves and special purpose leases in and around the Kununurra townsite, land and waters associated with the Ord River Irrigation Scheme including Lake Argyle, coastal lands and waters in the Cambridge Gulf and Medusa Banks areas including several offshore islands, and a pastoral lease, Glen Hill, held by Aboriginal people. In the Northern Territory the land the subject of the claim can be described as the Keep River National Park and land held under Aboriginal freehold title (NT).

In the application lodged with the Court several lengthy directions hearings have been conducted in which detailed and extensive orders have been made to manage the litigation and prepare the matter for trial.

In addition to the interlocutory steps provided for
by directions made by the Court the State and the Territory has each filed a motion seeking an order from the Court that certain questions be answered as preliminary questions of law pursuant to O.29 r.2(a) of the Rules, namely, whether and, if so, to what extent, native title has been extinguished in respect of the relevant land by the grant of pastoral leases.

All parties interested in the motions were directed to file outlines of submissions.  The motions of the State and the Territory were supported by submissions filed by the Conservation Land Corporation of the Territory, the holders of several mining tenements, and several community organizations and businesses based in Kununurra.  The motions were opposed by the applicants and by the Northern Land Council and Kimberley Land Council.

In an appropriate case severance of the trial procedure into a separate hearing of preliminary questions may be the appropriate course to follow to expedite the resolution of litigation and to prevent unnecessary costs being incurred.  In the context of the Rules of this Court such an order may be regarded as an aid to the efficient management of litigation.  (See:  Famel Pty. Ltd. v. Burswood Management Ltd. [1990] A.T.P.R. 41,004 per French J. at 51,086.)

But if the separate hearing of a preliminary question is to serve those ends it must be quite plain that
the question to be decided is likely to have a decisive effect upon the conduct of the litigation and is an issue that can be dealt with without the Court being required to make findings of fact.  Unless the facts underlying the question to be determined are fully found, or agreed, there will be no utility in embarking upon a separate hearing of the question.  (See:  Rocklea Spinning Mills Pty. Ltd. v. Anti-Dumping Authority (1995) 129 A.L.R. 401.)

In support of the motions it was suggested that the proposed questions could be determined on a short statement of agreed facts, it being submitted that upon proof of the grant of the respective pastoral leases the question of extinguishment of native title consequent upon the grant of those leases was a straightforward question of law according to principles said to be established in Mabo v. The State of Queensland (No. 2) (1992) 175 C.L.R. 1.

It was also said that mediation of the litigation could not occur until the central question of law was determined and acceleration of the determination of that issue would serve the public interest as well as the interest of the parties.  At the very least, it was said, the ambit of the substantive hearing would be substantially reduced by resolution of the central question of law.

The contrary arguments to those submitted in support
of the motions are that it is unlikely that the separation of the proposed questions for early determination will lead to resolution of those issues in a single proceeding and that if leave is sought to appeal from any determination of the questions that would result in the introduction of another layer of litigation and delay.

The opponents to the motion submit that the question of extinguishment cannot be answered in the absence of findings on the nature of the rights said to be part of the native title sought to be determined.  Furthermore, it was submitted that whatever answer is provided to the questions proposed a substantive hearing would be required in relation to the proof of native title in respect of land to which the answers to the proposed questions had no application and the conduct of the separate hearing would have little or no impact upon the length of the substantive hearing in that regard.

Having considered these matters I am not persuaded that this is an appropriate case in which to direct that there be a separate hearing of the proposed questions.  There is an argument that the question of extinguishment of native title for inconsistency with the grant by the Crown of an interest in land by way of a pastoral lease depends upon consideration of the nature of the rights embodied in native title and the extent to which they may co-exist with the estate granted by way of a pastoral lease.  That is to say the intention of the
Crown to be inferred from the circumstances may depend upon a consideration of the extent to which the interest created by the Crown was inconsistent or incompatible with the continuation of the particular form of native title and rights relied upon.  (See:  Wik Peoples v. State of Queensland, Unreported (Federal Court of Australia, Drummond J., 26 May 1994) at 15-17; Delgamuukw v. British Columbia (1993) 104 D.L.R. (4th) 470.)

In North Ganalanja Aboriginal Corporation v. The State of Queensland, Unreported (Federal Court of Australia, Full Court, 1 November 1995) the lease which was held by the majority to have been fatal to the application for a determination of native title under the Act in that case did not contain a reservation for the benefit of Aboriginal people. Hill J. in North Ganalanja at p.41 noted that the effect of such a reservation on native title was a "question of considerable difficulty" which "would require findings as to the nature of native title claimed".

Formerly, pastoral leases covered most but not all of the claim area.  In Western Australia up until 30 December 1932 such leases would have contained a reservation for access by Aboriginal people.  The State asserts that two leases without such a reservation were granted over the area that is now Lake Argyle prior to the coming into operation of sub-s.106(2) of The Land Act 1933 (W.A.) on 21 January 1935.  That sub-section provides that:

"The aboriginal natives may at all times enter upon any unenclosed and unimproved parts of the land the subject of a pastoral lease to seek their sustenance in their accustomed manner."

In the Northern Territory the claim area of has been the subject of six successive pastoral leases.  The first two leases, issued between 1893 and 1926, contained a reservation of the rights of Aboriginal people and later leases were subject to a similar "reservation in favour of the aboriginal natives of North Australia".

The Territory submits that as the factual situation with respect to these leases appears to be non-contentious and involves a discrete area of land, a hearing of the preliminary question raised with respect to the Northern Territory claim area should be held even if the effect of pastoral leases on native title is not determined as a preliminary issue in respect of the Western Australian claim area. It is not said that the incidents and exercise of native title in the Northern Territory are distinguishable from, or of less complexity than, those said to exist in the remainder of the claim area and as a result this submission simply raises the possibility that the substantive hearing of this matter could be staged by reference to discrete parcels of land.

It was submitted that particulars of the incidents of the native title claimed delivered pursuant to the directions made by the Court provided a sufficient foundation for the decision of a preliminary question in the terms proposed.  However, the particulars so provided are not facts and if the exercise to be undertaken on the hearing of the separate questions is to determine whether it was the intention of the Crown to extinguish any part of native title that could not be exercised consistently with the rights granted to the lessee of a pastoral lease, that question would require material facts to be found, or agreed, as to the nature of the exercise of the relevant incidents of native title.  (See:  Mabo v. The State of Queensland (No. 1) (1988) 168 C.L.R. 186; Mabo v. The State of Queensland (No. 2).) 

No doubt that would involve evidence of the form and degree of traditional use of, and access to, the land of the pastoral lease and assessment of how that use, or access, stood with the use of the land for pastoral purposes.  To determine such a preliminary question without findings of fact as to the nature and extent of the native title rights enjoyed would either foreclose an argument as to the construction of the Crown's intention or make the answers provided to the proposed questions of limited value.

The exercise of finding facts relevant to the issue sought to be determined as a separate question is bound up in the hearing of the cardinal issues of the application and little prospect of advancing the cause of case management would result from attempting to deal separately with that part of the trial.

There is no discrete issue of law that may be conveniently and separately determined.  In that regard the circumstances of this case may be contrasted with the question of law able to be isolated for separate determination in Kruger v. The Commonwealth, Unreported (High Court of Australia, Brennan J., 4 October 1995).

The questions proposed to a separate hearing do not involve the application of settled law.  The questions will require determination of the law as it applies to this matter and the entire factual base should be exposed before that step is taken.

Although it may be conceded that the questions sought to be determined as preliminary questions involve matters of substantial importance, such a circumstance provides cause to expedite the trial rather than separation of the trial into separate hearings.  (See: Carl Zeiss Stiftung v. Herbert Smith & Co. [1969] 1 Ch 93.)

The Attorney-General of the Commonwealth lodged submissions which supported the motions for the trial of separate questions and applied for leave to intervene in the proceeding.  That application was opposed by Kimberley Land Council and Northern Land Council.

Having determined that no order should be made for the separate hearing of preliminary questions it may be unnecessary to consider the Attorney-General's application for leave to intervene at this stage but the determination of the effect of the grant of pastoral leases upon the existence of native title is of particular importance to the operation of the Act and to the ascertainment of the extent to which rights to native title exist in respect of which compensation may become payable by reason of any act by the Commonwealth having the effect of extinguishing such title. It is appropriate to grant the Commonwealth leave to intervene in the proceeeding to assist the Court on these issues. It may be noted also that the State and the Territory are already parties to the proceeding.

I certify that this and the preceding nine  (9) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.

Associate:
  Date:

APPEARANCES BY SUBMISSIONS

Counsel for the Applicants:  L.W. Roberts-Smith Q.C.
  R.H. Bartlett

Solicitors for the Applicants:  Aboriginal Legal Service

Counsel for the First Respondents:  C.R. Humphry

Solicitors for the First Respondents:  Crown Solicitor for the  State of Western Australia

Counsel for the Second Respondent:  R.J. Webb

Solicitors for the Second Respondent:  Solicitor for the Northern Territory

Counsel for the Third Respondent:  E.R. Padarin

Solicitors for the Third Respondent:  Philip & Mitaros

Counsel for the Fourth Respondents:  R. Levy

Solicitors for the Fourth Respondents:  Northern Land Council

Counsel for the Kimberley Land Council:  G.M.G. McIntyre

Solicitors for the Kimberley Land Council:  Kimberley Land Council

Counsel for the Sixth, Ninth and Tenth Respondents:  M.A. Spillane

Solicitors for the Sixth, Ninth and Tenth Respondents:  McLeod & Co.

Counsel for the Seventh Respondents:  M.W. Hunt

Solicitors for the Seventh Respondents:  Blake Dawson Waldron

Counsel for the Eighth Respondents (Argyle Diamond Mines Joint Venture, Normandy Bow River Diamond Mine Limited)  :  P.E. van Hattern

Solicitors for the Eighth Respondents (Argyle Diamond Mines Joint Venture, Normandy Bow River Diamond Mine Limited)  :  Freehill Hollingdale & Page

Counsel for the Commonwealth Attorney-General:  E. Willheim

Solicitors for the Commonwealth Attorney-General:  Australian Government  Solicitor

Date of Judgment :  21 December 1995