Yuin Council of Elders Aboriginal Corp v State of New South Wales
[1995] FCA 833
•23 OCTOBER 1995
CATCHWORDS
NATIVE TITLE - Extinction and revival of native title - compensation - Crown lands - roads - the Roads Act 1993 (NSW), s. 226, confers no right to compensation, but merely provides a mechanism for dealing with a right to compensation conferred elsewhere - Native Title Act 1993 - non-claimant applications - notion of revival of native title has no support.
JURISDICTION - Jurisdiction of Courts (Cross-Vesting) Act (NSW) 1987, ss. 3 and 4 - definition of 'State matter' - Federal Court of Australia Act 1976, s. 21 - whether the Court's power to make declarations extends beyond the jurisdiction conferred by the Native Title Act - Native Title Act 1993, s. 213(2) - jurisdiction under s. 213(2) is 'only in relation to matters arising under the Native Title Act itself'.
Aboriginal Councils and Associations Act 1976
Native Title Act 1993
Federal Court of Australia Act 1976
Crown Lands Act 1989 (NSW)
Roads Act 1993 (NSW)
Land and Environment Court Act 1979 (NSW)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
YUIN COUNCIL OF ELDERS ABORIGINAL CORPORATION V STATE OF NEW SOUTH WALES
NG 6004 of 1995
LOCKHART J.
SYDNEY
23 OCTOBER 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 6004 of 1995
)
GENERAL DIVISION )
BETWEEN:YUIN COUNCIL OF ELDERS ABORIGINAL CORPORATION
Applicant
AND:STATE OF NEW SOUTH WALES
Respondent
JUDGE MAKING ORDER: LOCKHART J.
WHERE ORDER MADE: SYDNEY
DATE ORDER MADE: 23 OCTOBER 1995
MINUTE OF ORDER
THE COURT ORDERS THAT:
The applicant's motion to amend the application is dismissed.
The proceeding is dismissed.
The applicant shall pay the costs of the respondent of the proceeding, including the notices of motion, and any 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 )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 6004 of 1995
)
GENERAL DIVISION )
BETWEEN:YUIN COUNCIL OF ELDERS ABORIGINAL CORPORATION
Applicant
AND:STATE OF NEW SOUTH WALES
Respondent
23 October 1995
REASONS FOR JUDGMENT
LOCKHART J.
There are before the Court two notices of motion: one filed by the respondent - the State of New South Wales - seeking an order that the application in this proceeding be stayed or dismissed pursuant to O 20 r 2; the other filed by the applicant - Yuin Council of Elders Aboriginal Corporation - seeking leave to file an amended application. By consent, the Court adopted the convenient course of hearing the argument on the basis of the proposed amended application. If the motion for summary dismissal succeeds, that will be the end of the whole proceeding; but if the respondent fails in its motion, leave will be given to allow the filing of the amended application.
The applicant seeks various declarations and orders in its proposed amended application, some of which are related, while others are not. Essentially, the case for the applicant
is that there once existed native title to two parcels of land in Bodalla on the south coast of New South Wales (the land), the holders of the native title being the Yuin Elders on behalf of the Yuin people. The two parcels of land were formerly roads which were closed on 3 June 1994. The applicant asserts that on that date the title to the land passed from the Eurobodalla Shire Council to the respondent. The applicant further asserts that although native title had previously been extinguished, presumably by the ownership of the Eurobodalla Shire Council, upon title passing to the respondent, it was revived by operation of s. 145 of the Roads Act 1993 (NSW) ('the Roads Act'). It is submitted that the closure of the roads gave rise to an entitlement to compensation for the Yuin people, by reason of the earlier extinguishment of native title. It is compensation which is the primary relief sought by the applicants.
Before turning to an analysis of relevant provisions of the Native Title Act 1993 ('the Native Title Act') and of the Roads Act, I shall state the relevant facts.
.The applicant is an organization incorporated under the Aboriginal Councils and Associations Act 1976.
.The New South Wales Government Gazette published on 3 June 1994 notified the closure of the two relevant roads in these terms:
'In pursuance of the provisions of the Roads Act 1993, the road hereunder specified is closed and the road ceases to be public road and the rights of passage and access that previously existed in relation to the road are extinguished.'
.Following closure of the roads the land became available for sale under s. 34 of the Crown Lands Act 1989 (NSW) (the 'Crown Lands Act').
.On 30 May 1995 approval of the sale of the land was given. Recommendations were made that approval be given under s. 34(1) of the Crown Lands Act of the sale of the land to Mr Bert Plasier, by way of treaty, for the sum of $65,000. In the meantime, Mr Plasier had filed on 9 January 1995 a non-claimant application in the National Native Title Tribunal, relating to the two closed roads which he sought to purchase from the respondent for subdivision.
.Evidence was given by Mr J P Mumbler of Bodalla, an elder of the Yuin Nation and a public officer of the applicant, that the two portions of land are within the lands normally ranged by the Yuin people, and over which Yuin customary law applies.
.On 24 January 1995 Mr Plasier's application was accepted by the Tribunal.
.On 7 April 1995, the respondent became a party to the application before the Tribunal. The respondent examined the question whether or not native title had been extinguished in the two Crown roads, and was satisfied that it had been.
.By letter dated 30 May 1995 from the Crown Solicitor for New South Wales to Mr J Butland, who is the barrister representing the applicant, it was stated that the statutory requirements of s. 34(3) of the Crown Lands Act had been complied with on 14 December 1994, and that accordingly, completion of the sale of the land to Mr Plasier would proceed. Settlement of the sale to Mr Plasier occurred on 1 June 1995. The land, in due course, was transferred by instrument of transfer from the respondent to Mr Plasier for an estate in fee simple. Mr Plasier became the registered proprietor of the land on 1 June 1995.
It is in these circumstances that the applicant claims that native title to the land, which had once been extinguished, was later revived upon the closure of the roads and the transfer of its title to the respondent.
It is convenient to commence an analysis of the statutory provisions relevant to this proceeding with the Roads Act.
Under s. 33 of the Roads Act there may be a proposal by the Minister to close a public road, or applications may be made by others for the closure of the road. Sections 35 and 36 deal with the procedural aspects of the proposal or application. Section 37(1) provides that the Minister may, by notice published in the Gazette, close the public road concerned. This is what occurred in the present case, with respect to the two parcels of roads.
Section 38 deals with the consequences of a road closure under s. 37(1), on publication of the notice closing the public road. Thereupon the road ceases to be a public road, and the rights of passage and access that previously existed in relation to the road are extinguished. The language of the subsection is reflected in the gazette notice itself.
Section 38(2)(c) (which is the relevant provision in this case) provides that the relevant land becomes, or if previously vested in the Crown remains, vested in the Crown as Crown land.
In my opinion at the time of the closure of the land it was vested in the Crown in right of the respondent. There may have been an earlier time at which some of the land had been vested in the Eurobodalla Shire Council, but upon the Roads Act coming into operation in 1993, such land vested in the Crown.
The applicant's case is that the native title which was held by the Yuin people until it was extinguished was an interest in the land for the purposes of s. 146(1)(e) of the Roads Act.
The applicant claims, as I understand its case, that it is entitled to compensation under the Roads Act on two alternative bases: first, that the native title which previously existed to the land was extinguished; and second, that the native title which was extinguished revived on 3 June 1994 by the closure of the road, followed by the sale of the land.
In regard to compensation, reliance was placed by the applicant upon s. 226 of the Roads Act, which deals with certain claims for compensation in the following terms:
'226(1)A person who is entitled to be paid compensation under this Act (Part 12 excepted) may claim compensation by serving notice of the claim on the person by whom the compensation is payable.
(2)A claim for compensation under this Act may, by agreement between the parties, be referred for arbitration under the Commercial Arbitration Act 1984.
(3)Failing agreement within 28 days after notice of the claim is served on the party against whom the claim is made, either party may refer the claim to the Land and Environment Court for determination.'
Whether s. 226(3) is a provision which confers jurisdiction on the Land and Environment Court of New South Wales, or is simply a facultative provision entitling a party to refer a claim to that Court, is not a question which I need decide; but I note that s. 19(h) of the Land and Environment Court Act 1979 (NSW) provides that that Court has jurisdiction to hear and dispose of a large number of specified matters including:
'(h)any other appeals, references or other matters which an Act provides may be heard and disposed of by the Court, being appeals, references or other matters that are not referred to in any other section of this Part.'
It is clear that s. 226 does not create any right to compensation in any person. It merely provides machinery for the enforcement of a right to compensation which is found elsewhere.
The Roads Act has a number of provisions which confer rights to compensation on persons. Section 32, for example, provides for compensation where road levels have been varied, resulting in loss of access. The roads authority must pay compensation to the owner of the land for loss or damage arising from the loss of access (s. 32 must be read in conjunction with s. 29). Other sections of a similar kind include s. 68(1), which creates a right of compensation where access across the boundary between land and a public road is restricted or denied as a result of the road becoming a freeway, or a controlled access road, or in certain other circumstances.
Section 92 imposes an obligation on the roads authority to pay compensation to the owner of land for any loss or damage arising from alteration of the landform of land adjoining a public road to ensure the stability of the road.
Section 94(3) obliges the roads authority to pay compensation to a landowner for loss or damage arising from the roads authority carrying out drainage work for the purpose of draining or protecting a public road.
Sections 171 and 175(7) are other statutory provisions for compensation. Section 171 provides that the roads authority must pay compensation to the owner of land for loss or damage arising from the exercise of any power under Division 1 of Part 11 of the Roads Act relating to entry to land and other matters; but certain restrictions are imposed upon this right by the section. Section 175(7) obliges the roads authority to pay compensation to the owner of land for loss or damage arising from the exercise of any power under s. 175 - powers vested in the appropriate roads authority to carry out road work on a road or proposed road, or to provide a temporary road.
The critical point here is that s. 226 confers no right to compensation itself; it merely provides a mechanism for dealing with claims for compensation where a right to compensation is conferred elsewhere in the Roads Act. This disposes of the applicant's case based on the Roads Act. But there is another difficulty for this branch of the applicant's case.
Order 4 sought in the amended application by the applicant, is in these terms:
'4.That the applicant be permitted to cross-vest into the Federal Jurisdiction such of the jurisdiction of the NSW Land and Environment Court as may be required to determine the matter and in particular s. 226 of the Roads Act which reads ... [the section is then set out]'
Section 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act (NSW) 1987 provides that the Federal Court has, and may exercise, original and appellate jurisdiction with respect to State matters. The expression 'State matter' is defined in s. 3(1) as meaning a matter:
'(a)in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State; or
(b)removed to the Supreme Court under s. 8.'
Paragraph (b) of the definition is directed to proceedings which sometimes are commenced in State courts of New South Wales other than the Supreme Court, and allows the Supreme Court by order to remove such a proceeding to the Supreme Court. It is not helpful here. Paragraph (a) of the definition of 'State matter' also cannot be the source of the Federal Court's jurisdiction to hear the applicant's claim for compensation pursuant to s. 226 of the Roads Act. The New South Wales Land and Environment Court has jurisdiction conferred on it by s. 226 of the Roads Act, either alone, or in conjunction with the Land and Environment Court Act 1979 (s. 19(h)); but the Supreme Court of New South Wales does not have that jurisdiction, and so a fortiori, the Federal Court cannot have it under the Cross-Vesting Scheme. Hence, order 4 sought in the proposed amended application could not be made by this Court.
I turn now to the relevant provisions of the Native Title Act, on which reliance was also placed by the applicant.
First, I should mention that notice of a constitutional matter was served by the respondent on each of the Attorneys-General for the States and Territories and the Commonwealth of Australia. None of the Attorneys-General wished to intervene in the proceeding. The notice was given because the applicant had indicated that it proposed to argue, in opposition to the orders sought by the respondent in the notice of motion, that ss. 166 to 168 of the Native Title Act are unconstitutional, as infringing Chapter III of the Constitution.
It is necessary to examine the relevant provisions of the Native Title Act. Division 1 of Part 3 of the Act deals with native title and compensation applications. Section 61(1) authorizes the making of native title applications. It has a table which sets out applications that may be made to the Native Title Registrar under Division 1 of Part 3, and the persons who may make each of those applications. The relevant table provides that a person who holds an interest in relation to the whole of the area in respect of which the determination is sought, may make a native title determination application. Section 63 deals with the acceptance of applications by the Registrar.
Section 66 provides for giving notice of the acceptance of an application by the Registrar under s. 63. Under s. 66(1), the Registrar is obliged to give notice to a range of persons. Section 66(2) provides that the Registrar is taken to have given notice to all persons whose interests may be affected by a determination in relation to an application if the Registrar gives notice containing certain specified details of the application to the persons mentioned in the subsection. Section 66(3) deals with the contents of the notice given by the Registrar; and it relevantly provides that a notice under subsection (2) must state that:
'(a)if the application is a non-claimant application - the application will be taken to be unopposed unless the condition in subsection (4) is satisfied within the period of 2 months starting on the day the notice is given;'
Section 66(4) provides that the condition mentioned in s. 66(3)(a) is:
'that a person or persons who claim to hold native title give a native title determination application, that covers any part of the area covered by the non-claimant application, to the Registrar ...'
I observe at this stage that there was a non-claimant application made in this case by Mr Plasier, and notice was given by the Registrar which stated the matters to which reference is made in s. 66(3)(a).
One then turns to s. 67 which in subsection (1) states that s. 67 applies to a non-claimant application made in relation to an area other than by a person or persons claiming to hold the native title. Subsection (2) provides that if, within the period specified in the notice under s. 66, a person claiming to hold native title gives to the Registrar a native title determination application (the claimant application) that covers any part of the land covered by the non-claimant application, and the claimant application is accepted, then for all purposes the non-claimant application is taken, after the claimant application is given to the Registrar, not to relate to the area covered by the claimant application (s. 67(2)(d)).
Subsection (4) of s. 67 provides that if a non-claimant application is not taken to have been dismissed under subsection (2), the application is taken to be unopposed for the purposes of s. 70.
Section 70 provides that the Tribunal may make a determination in the case of unopposed applications which have been accepted under s. 63.
The evidence establishes that the non-claimant application with which this case is concerned was taken to be unopposed within the meaning of the Native Title Act. The notice of inquiry issued pursuant to s. 139(1) of that Act records in paragraph (4) that the application was taken to be unopposed. It further states that the application by Mr Plasier was accepted by the Registrar on 24 January 1995, and in paragraph (3):
'The period of notice specified by section 66(3)(a) of the Native Title Act 1993 (the Act) has expired and no person or persons claiming to hold Native Title has given a Native Title determination application covering any part of the area covered by the non-claimant application to the Registrar ... within that period.'
Paragraph (4) records that pursuant to s. 67(4) of the Act, the application was taken to be unopposed and that the Tribunal could proceed to make a determination in or consistent with the terms sought by the applicant, if the Tribunal was satisfied that the applicant had made out a prima facie case for determination in those terms and the Tribunal considers the determination to be just and equitable in all the circumstances (s. 70(1)).
The applicant's application, in regard to the Native Title Act, is based primarily upon s. 213 of that Act, which provides that, if, for the purpose of any matter or proceeding before this Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in the Native Title Act. The section also provides that subject to the Native Title Act, this Court has jurisdiction in relation to matters arising under that Act. (The application and other documents filed by the applicant wrongly refer to s. 213 as s. 231, but this is plainly a mistake and nothing turns on it, as it was accepted by counsel for the respondent that the reference should be to s. 213).
Section 213(1) does not confer jurisdiction of any kind on this Court; it is simply a procedural provision with respect to the exercise by the Court of jurisdiction which it acquires elsewhere.
Subsection (2) of s. 213 is the relevant provision since it provides that, subject to the Native Title Act, this Court has jurisdiction in relation to matters arising under that Act.
Another section upon which reliance is placed by the applicant as a basis for its application is s. 24 of the Native Title Act. It concerns, amongst other things, unopposed non-claimant applications, and it is a provision which creates a right to compensation. Section 24(2) provides that native title holders may recover compensation from the Crown in right of a State if the act which gives rise to the right to compensation is attributable to the State.
To determine how native title holders are to enforce their right to compensation, one turns to Division 5 of Part 2 of the Native Title Act. Section 48 provides that compensation payable under Division 2, 3 or 4 in relation to an act is only payable in accordance with Division 5. Division 3 is the relevant Division because it includes s. 24. In Division 5, s. 50(1) provides that determination of compensation may only be made in accordance with s. 50. Section 50(2) provides that an application may be made to the Registrar, under Part 3, for determination of compensation. Section 50(3) provides that nothing in Division 5 affects the jurisdiction of a Court to hear appeals against a determination of compensation made in accordance with Division 5.
Section 63 has been mentioned earlier, and so has s. 70. Section 70 deals with applications accepted under s. 63 that are unopposed, and empowers the Tribunal to make a determination in or consistent with the terms sought by the applicant, if the Tribunal is satisfied that the two matters to which reference is made in paragraphs (a) and (b) are established. Section 71 requires the Tribunal to make a determination in accordance with or consistent with the terms of an agreement reached between the parties. Section 72(1) relates to the holding of a mediation conference.
So, a compensation application is made to the Registrar in accordance with s. 50, and it is then dealt with in the manner mentioned in ss. 70, 71, 72, 73 and 74. If there is no determination by the Tribunal under any of those provisions, the Registrar lodges the application with the Federal Court.
Section 81 then comes into play. It confers jurisdiction on this Court to hear and determine applications lodged with it under s. 74, and that is an exclusive jurisdiction.
The argument of counsel for the applicant was as follows. Section 5(2) of the Federal Court of Australia Act 1976 provides that the Court is a superior court of record, and a court of law, and of equity. Section 19 of that Act confers upon the Court such jurisdiction as Parliament grants to it. The Federal Court has jurisdiction under s. 213(2) of the Native Title Act, so the argument goes, which is a jurisdiction of both law and equity.
The essential point made by counsel for the applicant was that because the power of this Court to make declarations is a very wide one (s. 21), the Court must have jurisdiction to simply declare that someone has established a native title claim over a given piece of land. Counsel argued that, although native title is enshrined in the Native Title Act, it is fundamentally a common law concept.
The argument is fallacious, because this Court had jurisdiction conferred upon it under s. 213(2) only in relation to matters arising under the Native Title Act itself. This Court does not have jurisdiction in a case such as the present one to hold that native title existed at certain times. Carr J. said in Djaigween v Douglas (1994) 48 FCR 535 at 541 and 542, that there is no provision in the Native Title Act for an applicant to initiate proceedings in the Federal Court by way of an application for determination of native title, as that is a function of the Registrar. I agree with Carr J.'s observations.
The proposed amended application makes a claim for compensation in this Court ab initio. This is clear from the orders sought numbered 7, 8 and 9. The essential relief claimed is to be found in those orders. The earlier orders sought are merely preparatory or preliminary to them.
The applicant asserts that there once was native title to the land which was extinguished but revived on 3 June 1994 by the closure of the roads. Then there was a sale of the land which gave rise to an entitlement to compensation in circumstances where there has been an unopposed non-claimant application.
The notion of re-establishment of native title has no support from the authorities and in my opinion is inconsistent with the whole concept of native title. The order for payment of compensation sought by the applicant must involve the notion that there has been an extinguishment of native title. Otherwise, there is nothing for which compensation can be given. (Also, the reliance of the applicant on s. 145 of the Roads Act is impermissible. The relevant provision of the Roads Act which authorizes the closure of roads is s. 37, not s. 145 (see also s. 38).)
In my opinion the prospective amended application, if the amendment were to be allowed, must fail, as no reasonable cause of action is disclosed. The applicant's motion to amend the application would serve no purpose in the circumstances. Accordingly, the applicant's motion is dismissed with costs, and the proceeding is dismissed. The applicant must pay the costs of the respondent of the proceeding, including the notices of motion.
I certify that this and the preceding eighteen (18) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.
Associate
Dated: 23 October 1995
Counsel for the Applicant : Mr J Butland
Solicitors for the Applicant : La Fontaine
Counsel for the Respondent : Mr L Katz
Solicitors for the Respondent : Crown Solicitor
Date of Hearing : 11 July 1995
Date of Judgment : 23 October 1995
0
1
0