William Edward Hollier for the Holliers of the Bass Strait Islands v Registrar of the National Native Title Tribunal
[1998] FCA 757
•24 MARCH 1998
FEDERAL COURT OF AUSTRALIA
PRACTICE AND PROCEDURE - appeal under s 169(2) Native Title Act 1993 (Cth) - interlocutory nature of decision - need for leave to appeal from an interlocutory judgment - whether trial judge’s judgment attended by sufficient doubt to warrant examination by a Full Court - whether substantial injustice could result if leave refused.
NATIVE TITLE - appeal from decision of primary judge affirming direction of National Native Title Tribunal not to accept application for a determination of native title and dismissal of applicant’s application on appeal - nature of native title - whether a person who is not a descendant of the inhabitants of Australia who were in occupation of the country prior to the assertion of British Sovereignty can claim native title rights under the Native Title Act 1993 (Cth) - whether applicant’s application was self‑evidently without merit - whether Native Title Act 1993 (Cth) in breach of Racial Discrimination Act 1975 (Cth).
EXPRESSIONS - “Aboriginal people”
“Peoples of the Aboriginal race of Australia”
Native Title Act 1993 (Cth): s 13(1)(a), s 61, s 169(2), s 223(1)
Pt 3
Racial Discrimination Act 1975 (Cth): s 7(1)
Federal Court of Australia Act 1976 (Cth): s 24(1A)
North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595 - considered and followed
Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373
WILLIAM EDWARD HOLLIER FOR THE HOLLIERS OF THE BASS STRAIT ISLANDS v REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL & ORS
VG 235 of 1997
BLACK CJ, RYAN & GOLDBERG JJ
MELBOURNE
24 MARCH 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 235 of 1997
ON APPEAL FROM JUSTICE OLNEY
BETWEEN:
WILLIAM EDWARD HOLLIER FOR THE
HOLLIERS OF THE BASS STRAIT ISLANDS
AppellantAND:
REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL
First RespondentCOMMONWEALTH OF AUSTRALIA
Second RespondentSTATE OF VICTORIA
Third RespondentSTATE OF TASMANIA
Fourth RespondentJUDGES:
BLACK CJ, RYAN & GOLDBERG JJ
DATE OF ORDER:
24 MARCH 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The application for leave to appeal be dismissed.
The notice of appeal be declared incompetent for the purpose of instituting an appeal.
The appellant pay the costs of all respondents including reserved costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 235 of 1997
BETWEEN:
WILLIAM EDWARD HOLLIER FOR THE HOLLIERS OF THE BASS STRAIT ISLANDS
APPELLANTAND:
REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL
FIRST RESPONDENTCOMMONWEALTH OF AUSTRALIA
SECOND RESPONDENTSTATE OF VICTORIA
THIRD RESPONDENTSTATE OF TASMANIA
FOURTH RESPONDENT
JUDGES:
BLACK CJ, RYAN & GOLDBERG JJ
DATE:
24 MARCH 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
BLACK CJ:
Leave to appeal should be refused for the reasons given by Goldberg J. I would add only one comment. Where a judgment, although interlocutory in character, has the practical effect that a person cannot bring an application for determination by the National Native Title Tribunal, the Court should pay particular attention to the question whether, assuming the judgment from which leave to appeal is sought to have been wrong, substantial injustice would result if leave were refused. In the present case, for the reasons given by Goldberg J, no injustice would result since, as his Honour shows, the appeal for which leave is sought is without any prospect of success. I agree with the orders proposed by Goldberg J.
I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.
Associate:
Dated: 24 March 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 235 of 1997
BETWEEN:
WILLIAM EDWARD HOLLIER FOR THE HOLLIERS OF THE BASS STRAIT ISLANDS
APPELLANTAND:
REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL
FIRST RESPONDENTCOMMONWEALTH OF AUSTRALIA
SECOND RESPONDENTSTATE OF VICTORIA
THIRD RESPONDENTSTATE OF TASMANIA
FOURTH RESPONDENT
JUDGES:
BLACK CJ, RYAN & GOLDBERG JJ
DATE:
24 MARCH 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
RYAN J:
I too agree that the application for leave to appeal should be dismissed, with costs for reasons given by Goldberg J.
I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.
Associate:
Dated: 24 March 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 235 of 1997
ON APPEAL FROM JUSTICE OLNEY
BETWEEN:
WILLIAM EDWARD HOLLIER FOR THE
HOLLIERS OF THE BASS STRAIT ISLANDS
AppellantAND:
REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL
First RespondentCOMMONWEALTH OF AUSTRALIA
Second RespondentSTATE OF VICTORIA
Third RespondentSTATE OF TASMANIA
Fourth Respondent
JUDGES:
BLACK CJ, RYAN & GOLDBERG JJ
DATE:
24 MARCH 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
GOLDBERG J:
Background
The applicant appeals to the Court from the order of Olney J made on 19 May 1997 affirming the direction of Deputy President, the Hon Hal Wootten AC QC of the National Native Title Tribunal (“the Tribunal”) to the Registrar of that Tribunal not to accept the applicant’s application for a determination of native title and dismissing the application of the applicant brought pursuant to s 169(2) of the Native Title Act 1993 (“the Act”) by way of appeal from that decision.
The first respondent has not appeared at the hearing and has informed the Court that it will abide the result of the appeal. The second, third and fourth respondents have each filed a notice of motion seeking the dismissal of the appeal. They contend that the judgment, the subject of the appeal, is interlocutory in nature and as it is not brought by leave of the Court it is incompetent. Alternatively, they seek that the appeal be treated as an application for leave to appeal and that such application be dismissed. The applicant has filed a motion, albeit out of time, seeking leave to appeal from the order of Olney J.
In North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595 at 626, the High Court held that an appeal under s 169(2) of the Act does not finally determine legal rights, although the practical effect of the dismissal of such an appeal is that the applicant cannot have the application sought to be filed with the Tribunal determined. A judgment is interlocutory in nature if it does not finally dispose of the rights of the parties: Hall v Normal Defendant (1966) 117 CLR 423, 440; Licul v Corney (1975) 180 CLR 213; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Wickstead v Browne (1992) 30 NSWLR 1. Section 24(1A) of the Federal Court of Australia Act 1976 precludes an appeal from an interlocutory judgment unless by leave. Accordingly, I have approached the matter before the Court on the basis that, as the judgment appealed from is interlocutory, the applicant is applying for leave to appeal and I have therefore considered whether the learned trial judge’s judgment is attended by sufficient doubt to warrant examination by a Full Court and whether, assuming the decision below to have been wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Jarrett v Seymour (1993) 46 FCR 557.
On or about 28 September 1995, the applicant forwarded to the Registrar of the Tribunal an application for a determination of native title made pursuant to ss 13 and 61 of the Act. The application was expressed to have been made on behalf of the applicant and other persons described as “Holliers of the Bass Strait Islands”. The area covered by the application was described generally as Deal Island, Bass Strait as the principal site of the area which also included other specified areas. In his application the applicant, in response to the requirement contained in the form provided under the regulations to:
“Give information about any connection that exists or did exist between the applicant(s) and any persons with whom the applicant(s) claim(s) to hold title or the ancestors of the applicant(s) and those other persons, and the area covered by the application”,
responded:
“The applicant and the persons with whom the applicant claims to hold title are connected in being related by both blood and marrage, recognise each other and their community and are and have resident at Deal Island.” (sic)
The delegate of the Registrar formed the opinion that prima facie the claim could not be made out and on 22 February 1996, pursuant to s 63(2) of the Act, referred the application to a presidential member of the Tribunal, the Hon Hal Wootten AC QC. On 25 February 1996, the presidential member said that he was of the same opinion as the delegate and on 28 March 1996, wrote to the applicant advising him to that effect and gave his reasons. In short, those reasons were that the applicant did not point to any traditional connection to the land or water on the part of those included in the application or any other living persons. He noted that the applicant was residing on Deal Island pursuant to a one year lease with monthly hold‑over provisions entered into in 1992 and that the applicant had indicated that he had been on the island for three years. No other connection with the land and waters was suggested. Deputy President Wootten concluded:
“It appears that prima facie the claim cannot be made out because:
1.There does not appear to be an identifiable community that has enjoyed native title to the area of the application from before the time the Crown acquired radical title to the area and which continues to do so.
2.Neither the applicant nor the others on whose behalf native title is claimed appear to be:
a)members of any such community;
b)descendants of the indigenous people of Australia;”
The applicant was invited to make submissions to show that a prima facie case could be made out and in response by letter dated 6 June 1996, made submissions in which he said, inter alia, that as he and his family were the first inhabitants of Deal Island they were entitled to claim native title rights as the only meaning of the definition of the term “Aboriginal” in s 223(1) of the Act which was compatible with the provisions of the Racial Discrimination Act 1975 (Cth) was “first inhabitant” and that “Aboriginal race” meant the descendants of the first inhabitants.
Deputy President Wootten considered the applicant’s response, remained of the opinion that a prima facie claim could not be made out and, in a minute containing his reasons dated 26 July 1996, directed the Registrar not to accept the application. The Deputy President’s reasons were forwarded to the applicant under cover of a letter dated 29 July 1996 and I set out the last four paragraphs of his reasons as they were, in substance, adopted by the learned trial judge:
“It appears that Mr Hollier’s case is that, by reason of the Racial Discrimination Act 1975, the Native Title Act 1993 must be construed as giving rights to all persons irrespective of race who are the original inhabitants of previously unoccupied areas.
It is clear from s 223 of the Native Title Act 1993, read in conjunction with the relevant judicial decisions as to the nature of the native title recognised by the common law, that native title can only be held by descendants of the indigenous inhabitants of Australia who were in occupation of the country prior to the assertion of British Sovereignty. As neither Mr Hollier nor any person on whose behalf he claims is such a person, he is not entitled to any rights which could be registered under the Native Title Act.
Mr Hollier’s contention that this discriminates on the ground of race is based on a misunderstanding of the nature of native title and the Native Title Act 1993. Neither the common law nor the Native Title Act confers native title on any person; they simply recognise it where it exists. Native title is a form of title stemming from the rights enjoyed by the indigenous inhabitants of Australia prior to the assertion of British sovereignty. The indigenous inhabitants were the only persons who had such rights. The common law doctrine of native title and the Native Title Act 1993 simply recognise that historical fact and do not confer rights on persons by reason of race, or otherwise discriminate on the ground of race. Indeed, as was pointed out in Mabo No (2), it would have been discriminatory to refuse to recognise the property rights of indigenous people while protecting the property rights of other members of the community.
Accordingly pursuant to s 63(3)(c) I direct the Registrar not to accept the application.”
The applicant appealed to the Federal Court against the Deputy President’s direction by notice of appeal filed 23 August 1996. The notice of appeal was somewhat discursive but was accepted by the learned trial judge as raising questions of law as to the right of the applicant and his family to bring the claim. In substance, those grounds were:
(a)as the Act is subject to the operation of the Racial Discrimination Act rights given under the Act extend to all persons;
(b)the Deputy President had failed to consider the substance of the applicant’s case which appeared to include rights given to the applicant under the Act;
(c)the Tribunal was bound to register the applicant’s claim.
The applicant’s notice of appeal to this Court substantially repeated the same grounds albeit in relation to the reasoning of the learned trial judge.
The legislation
In order to put the appeal in context, it is necessary to identify those provisions of the Act which bear upon whether the applicant’s application to the Tribunal should have been accepted. By virtue of the provisions of s 61(1) and s 13(1)(a) of the Act a person or persons claiming to hold, either alone or with others, native title in relation to an area for which there is no approved determination of native title can make an application to the Registrar under Pt 3 of the Act for a determination of native title. Sections 61 and 62 specify that the application is to be made in the prescribed form accompanied by an affidavit and must contain all information known to the applicant about interests in relation to any of the land or waters concerned that are held by other persons other than the native title holders. Section 63(1) provides that, if the requirements of s 62 are complied with in relation to the application the Registrar must accept the application, unless the Registrar is of the opinion that the application is frivolous or vexatious or that prima facie the claim cannot be made out. In such circumstances, the Registrar must refer the application to a presidential member: s 63(2). If the presidential member is not of the same opinion as the Registrar, the presidential member must direct the Registrar to accept the application: s 63(4). However, if the presidential member is of the same opinion as the Registrar, the presidential member must advise the applicant in writing of that fact and give the applicant a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious or that a prima facie claim can be made out: s 63(3)(a). If the applicant so satisfies the presidential member then the presidential member must direct the Registrar to accept the application: s 63(3)(b), but if the applicant does not so satisfy the presidential member, the presidential member must direct the Registrar not to accept the application: s 63(3)(c). Section 169(2) gives a person who has given an application to the Registrar under s 61 a right of appeal on a question of fact or law from a decision of a presidential member to not accept the application.
The merits of the application
As the learned trial judge pointed out, the proceeding before the Court raises the question whether a person who is not a descendant of the inhabitants of Australia who were in occupation of the country prior to the assertion of British Sovereignty can claim native title rights under the Act. The learned trial judge decided that question in the negative and, in my opinion, did not err in law in so doing. As Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ pointed out in North Ganalanja Aboriginal Corporation v State of Queensland (supra) at 624, an appeal under s 169(2) of the Act:
“is not a judicial proceeding inter partes nor does it finally determine legal rights. It is a proceeding designed to ensure that applications that are not self‑evidently without merit are resolved by agreement or determined by the Federal Court so as to bind the ‘parties’ interested. An appeal under s 169(2) is not itself the occasion for final determination of questions of law that are fairly arguable. In other words, in a case where a presidential member’s direction that an application be not accepted is taken on appeal to the Federal Court under s 169(2), the question for the Court is not whether the presidential member was right in his conclusion about a contested point of law that is not settled but whether the point of law was fairly arguable.”
The learned trial judge correctly directed himself in the application of these principles and then identified the information which the applicant had provided to the Registrar and later to the presidential member. This information was that the applicant had resided on Deal Island for about three years under an arrangement entered into with the Commonwealth and that neither he, nor any of those persons on whose behalf the claim is made, was a descendant of the people who occupied Australia prior to the acquisition of radical title by the Crown. The applicant’s submission was that prior to his residing on Deal Island it had been uninhabited since the last ice age and that, as he and his family were the first inhabitants of the island, they should properly be regarded as its indigenous inhabitants.
The question of law which the learned trial judge then identified as arising before him is whether an application under s 61 of the Act made by or on behalf of persons who make no claim of being descended from persons who enjoyed native title to the area in question since before the Crown acquired radical title to the area is “self‑evidently without merit”. The learned trial judge concluded that the present application was self‑evidently without merit and he based his reasoning on a number of definitions and provisions in the Act. Section 223(1) of the Act defines the expression “native title” as meaning:
“the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.”
Section 253 of the Act defines “Aboriginal peoples” as meaning “peoples of the Aboriginal race of Australia”.
It is then necessary to refer to the preamble to the Act which states:
“The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.
...The High Court has:
(a)rejected the doctrine that Australia was terra nullius (land belonging to no‑one) at the time of European settlement; and
(b)held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands; and
(c)held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates.”
As the learned trial judge noted, the term “indigenous inhabitants” in the context of the preamble was a reference to the descendants of the people who occupied Australia prior to European settlement and the acquisition of radical title by the Crown. He concluded that in the context of the Act the expression “peoples of the Aboriginal race of Australia” used in s 253 had the same meaning. In my opinion, the learned trial judge was correct as a matter of statutory construction.
There was no material placed before the Registrar, nor is there any evidence to the effect that the applicant or those on whose behalf he claims or any identifiable indigenous community, at any time, held rights and interests of the type referred to in s 223(1) of the Act in respect of the area, the subject of the claim. The delegate of the Registrar and the Deputy President made their decisions upon the information provided in the claim and on additional material supplied by the applicant and this approach is consistent, and in conformity, with the approach taken in North Ganalanja Aboriginal Corporation v State of Queensland (supra).
According to the information supplied to the Registrar, the applicant and those on whose behalf the application was made, are not “Aboriginal people” within the meaning of the definition of that expression in the Act, that is to say they are not descendants of the people who occupied Australia prior to European settlement and the acquisition of radical title by the Crown. Thus, they have no right under the Act to make a claim to hold or in respect of native title.
The applicant’s response to this conclusion was to submit that if the Act be so construed then it was in breach of the provisions of the Racial Discrimination Act. However, this submission, as the learned Deputy President pointed out to the applicant in his letter of 29 July 1996, is based on a misunderstanding of the nature of native title and the Act. As the learned Deputy President said, neither the common law nor the Act confers native title on any person but rather recognises it where it exists. It is a form of title stemming from rights enjoyed by the indigenous inhabitants of Australia prior to the assertion of British sovereignty. It was only the indigenous inhabitants of Australia who had such rights. The common law doctrine of native title and the Act do not create those rights but simply recognise the historical facts of their existence: ss 3 and 10; Mabo v State of Queensland (No 2) (1992) 175 CLR 1, 58 ‑ 60, 70, 88, 109 ‑ 110; Kanak v National Native Title Tribunal (1995) 61 FCR 103, 131.
It appeared from the applicant’s oral submissions that he was not so much seeking a determination of native title but rather seeking protection for possessory or proprietary rights which he said were analogous to the rights recognised under native title provisions. He submitted that by reason of the provisions of the Racial Discrimination Act and the effect given to that Act by the Native Title Act, the mechanism of the Native Title Act should be equally available to him and those on whose behalf he claims.
In making this submission the applicant has proceeded on the basis of a misunderstanding of the effect of the Racial Discrimination Act. He proceeded on the basis of a similar misunderstanding when he raised in his notice of appeal s 7 of that Act and stated the proposition that the Native Title Act 1993 “can neither override, exclude or be contrary to the Racial Discrimination Act which clearly states that all legal forms and interests must be equally available to all people”. This submission and ground of appeal fails to recognise and take into account the construction of s 7 and the relationship between the two Acts identified by the majority of the High Court in Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373. At 483 ‑ 484 Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said:
“Western Australia sought to use s 7(1) as the vehicle for destruction of the substantive provisions of the Native Title Act relating to future acts. The Native Title Act was said to discriminate in favour of Aborigines and Torres Strait Islanders and thus to offend the Racial Discrimination Act. As s 7(1) preserved the operation of the Racial Discrimination Act, so the argument ran, the offending provisions of the Native Title Act ‘must be regarded as inoperative’. The argument encounters considerable obstacles. In the first place, it is not easy to detect any inconsistency between the Native Title Act and the Racial Discrimination Act. The Native Title Act provides the mechanism for regulating the competing rights and obligations of those who are concerned to exercise, resist, extinguish or impair the rights and interests of the holders of native title. In regulating those competing rights and obligations, the Native Title Act adopts the legal rights and interests of persons holding other forms of title as the benchmarks for the treatment of the holders of native title. But if there were any discrepancy in the operation of the two Acts, the Native Title Act can be regarded either as a special measure under s 8 of the Racial Discrimination Act or as a law which, though it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act or the International Convention on the Elimination of All Forms of Discrimination. And further, even if the Native Title Act contains provisions inconsistent with the Racial Discrimination Act, both Acts emanate from the same legislature and must be construed so as to avoid absurdity and to give to each of the provisions a scope for operation. The general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operation. But it is only to that extent that, having regard to s 7(1), the Native Title Act could be construed as affecting the operation of the Racial Discrimination Act.
Section 7(1) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act. The Native Title Act prescribes specific rules governing the adjustment of rights and obligations over land subject to native title and s 7(1) cannot be construed as intending to nullify those provisions.”
This passage is a complete answer to the applicant’s reliance on s 7 of the Racial Discrimination Act.
It follows in my opinion, that the applicant’s claim is self‑evidently without merit and the appeal was properly dismissed by the learned trial judge. It follows that as no doubt attends the learned trial’s judge’s judgment, leave to appeal should be refused.
For the reasons explained earlier the appeal instituted by the notice dated 29 May 1998, having been brought without leave, is incompetent. I would refuse leave to appeal and order the applicant to pay the costs of the second, third and fourth respondents.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of their Honours
Associate:
Dated: 1998
Counsel for the Applicant: in person Counsel for the Second Respondent: Mr C Caleo Solicitor for the Second Respondent: Australian Government Solicitor Counsel for the Third Respondent Mr C Caleo Solicitor for the Third Respondent Victorian Government Solicitor Counsel for the Fourth Respondent Mr W C R Bale QC S-G Solicitor for the Fourth Respondent Director of Public Prosecutions, Hobart Date of Hearing: 24 March 1998 Date of Judgment: 24 March 1998
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