Williams v Grant & Anor

[2005] HCATrans 427

[2005] HCATrans 427

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S266 of 2004

B e t w e e n -

NEVILLE WILLIAMS

Applicant

and

FLORENCE GRANT

First Respondent

MINISTER FOR NATURAL RESOURCES

Second Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 JUNE 2005, AT 12.32 PM

Copyright in the High Court of Australia

MS C.M. O’BRIEN:   May it please the Court, I appear for the applicant.  (instructed by the applicant)

McHUGH J:   The Deputy Registrar has certified that no appearance has been filed on behalf of the first respondent, Florence Grant.  An affidavit has been sworn on 4 February 2005 on behalf of the applicant proposing that the first respondent has been served with the special leave documents at her last known address, her name has been called three times outside the Court and there is no appearance.  The Deputy Registrar also certifies that she has been informed by the solicitor for the second respondent, the Minister for Natural Resources, the second respondent submits to the order of the Court save as to costs.  In the circumstances, you should proceed, Ms O’Brien.

MS O’BRIEN:   Your Honours, the special leave issue raised by this case is what is the proper approach to the construction of section 84C(1) of the Native Title Act when there is an application for strike out of an application for determination of native title on the grounds that there has been no compliance with section 251B(a) of the Native Title Act.  We say that a grant of special leave is appropriate in this instance for three main reasons. 

First, because of judicial differences in applying section 84C when authorisation is disputed, the law does require clarification.  The clarification of the law in this matter is of public and general interest because of the novel rights that registered native title applicants are able to exercise and these rights flow from the fact that legislation is beneficial legislation to promote the progress and wellbeing interests of indigenous people.  Those rights that flow from registration affect other Australians, miners, developers, not just indigenous native title applicants.

Thirdly, we say that there were errors in the court below which have brought to bear substantial injustice on Mr Williams. Let me take you to the first of our propositions which is the operation of section 84C(1) needs clarification. I wish to refer your Honours to the recent decision of his Honour, Justice Mansfield in Thomas (on Behalf of the Kokatha People) v South Australia [2004] FCA 951 at paragraph [20]. His Honour handed down his decision on 22 July 2004, about two weeks after the Full Court decision in this matter was handed down. At paragraph [20], he says:

There has not been uniformity in the approach of single judges of the Court to the question.  The approach of different judges would appear to reflect the approach of parties in particular cases, rather than to any considered view reached after full argument.

He goes on to suggest, in fact he suggests beforehand, in paragraph [18], that:

There is much to be said for approaching a strike-out application under s 84C as putting the claimants to proof of their authorisation in accordance with s 251B by the native title claim group, or as putting the party seeking the strike-out to proof of the absence of authorisation, on the balance of probabilities . . . 

[19]     Section 84C(4) contemplates the availability of a strike out application under O 20 r 2 of the Federal Court Rules. 

He then says that has a “high hurdle”.  Justice Mansfield’s decision is at variance with the decision of the Full Court in the instant case ‑ ‑ ‑

McHUGH J:   One might ask, so what?  The law is as stated by the Full Court and if his Honour has departed from that then he is wrong. 

MS O’BRIEN:   Our submission is that the Full Court was wrong and that his ‑ ‑ ‑

McHUGH J:   I understand you say that, but so far as the Federal Court is concerned, the law is as laid down by the Full Court.  Did his Honour refer to this case?

MS O’BRIEN:   Yes, he did, your Honours, in the first paragraph so he was aware of this case and yet commented in this fashion.

McHUGH J:   Anyway, you proceed.

MS O’BRIEN:   Our argument is that the law does require clarification because of the central importance of 251B in the native title process and both Justice French in Daniel v Western Australia and Justice Wilcox in Moran v Minister for Land & Water Conservation for the State of New South Wales in the Federal Court, have pointed to the central importance of the authorisation process because of the exercise of rights that flow from the registration of applicants.  Those who purport to bring such applications and to exercise such rights, on behalf of a group of asserted native title holders, have the authority of that group to do so.

Why this is important is that, although the authorisation process is central to the proprietor of the native title application, the Registrar, in considering whether to register an application, is not bound to look at whether the authorisation is proper and my authority for that is Northern Territory v Doepel.  So you have a situation where people can become registered, they can negotiate agreements with proponents, receive compensation, sign up to perhaps the destruction of sites of cultural heritage, all because they are registered native title owners but their authorisation has not been tested in any significant way.

McHUGH J:   This seems to me to be an area like the income tax law where, ordinarily, the Full Court of the Federal Court should be the final arbiter of questions arising under this legislation and only in very exceptional cases would this Court grant special leave to appeal.  It is a very specialised jurisdiction.

MS O’BRIEN:   Yes, your Honours, it is and one reason why we say that the question should be considered by the High Court is the apparent disconformity between the interpretation of the phrase, “traditional laws and customs” when it comes to section 251B and that which this Court canvassed extensively in its decision of Yorta Yorta.  It seems that when the 251B matters are considered, any evidence is good enough to say it is a traditional law and custom.  That runs very much counter to ‑ ‑ ‑

McHUGH J:   One of the problems of this case is that, given the representation in the courts below, it is not really a suitable vehicle for determining any questions of general importance, is it?  You have a non‑lawyer being allowed to appear for your client, there is a lot of evidence that one might have thought should have been called or should have been objected to and it is not a very suitable vehicle to be determining important questions of principle.

MS O’BRIEN:   Yes, your Honours, I take that point and very much so, but there is an issue of the administration of justice.  I know that Mr Williams was not represented in the courts below and I, too, can see the grave shortcomings of that way of approaching things and not picking the issues or marshalling the evidence or the materials but, to be honest, why should he be cut out from the native title process on his country because of that?

McHUGH J:   Well, for this reason, that you are asking us to lay down important principles of law which will apply generally and you are asking us to do it in a case where the evidence and guidance on these issues that one would hope to get from the Full Court just is not there and it is because of the way the case has been conducted.  There seems to be very little coincidence between the way you are putting the case now and the way it was put on your client’s behalf down below.

MS O’BRIEN:    Yes, your Honours, I was not involved in this case ‑ ‑ ‑

McHUGH J:   I know and you put it in a much elaborate ‑ ‑ ‑

MS O’BRIEN:    Yes, and I am trying to say that there is a major point here that there seems to be this disparity between what this Court has said in Yorta Yorta about how you would get up on traditional laws and customs and the complete inadvertence to that judgment when people are talking about 251B(a) which, after all, incorporates that very same terminology and it just seems that that is an issue that is quite important.  If authorisation is central and people are able to say “I am traditionally authorised”, but they do not have to come up to a Yorta Yorta standard and never will, then there seems to be something amiss in the process, awry, and that in turn affects – because the registered native title applicants are the only ones who, you know, have officially a right to negotiate, it could result in people being cut out of the process because that issue has not been properly examined and that is the main thrust of my argument really.

McHUGH J:   Well, we appreciate your argument.  I hope we understand it and I am sure I do because you put your points clearly in your written submissions, but it does raise this question of whether it is a suitable vehicle to raise these issues which, in another setting, may well call for a grant of special leave to appeal.  After all, the Full Court has expressed a view about 84C(1).  Justice Mansfield says, as you point out to us, that these matters do not seem to have been fully argued in various cases.  Prima facie, I have to say that the view of the Full Court seems to me the proper approach but that – with full argument one may get a very different view of it and that is the way you put it, but it is not the best vehicle for determining what may be, on one view, important questions of rights of native title holders. 

MS O’BRIEN:    If I can be of any further assistance, your Honour.

McHUGH J:   Thank you very much.

Despite the clear submissions of Dr O’Brien on behalf of the applicant, we are of the view that, having regard to the way the case was conducted in the courts below where the applicant was not legally represented, the case is not a suitable vehicle for the grant of special leave to appeal.  In saying that, we do not mean to say that in an appropriate case the issues that Dr O’Brien seeks to raise may well warrant the grant of special leave.  Given the evidentiary material and the importance of the issues which she seeks to litigate, we are of the view that this case is not a suitable vehicle.  Accordingly, the application for special leave to appeal is refused. 

The Court will now adjourn.

AT 12.48 PM THE MATTER WAS CONCLUDED