McIntyre, Greg --- "Francis Djaigween and Others v Malcolm Douglas Trading as Broome Crocodile Park; the State of Western Australia Intervening" [1994] AboriginalLawB 17; (1994) 3(67) Aboriginal Law Bulletin 16

• Francis Djaigween And Others V Malcolm Douglas Trading As Broome Crocodile Park; The State Of Western Australia Intervening

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Francis Djaigween and Others v Malcolm Douglas Trading as Broome Crocodile Park; the State of Western Australia Intervening

Federal Court of Australia, Perth, Carr J

4 March 1994

by Greg McIntyre

On 13 September 1993, representatives of the Yawuru Peoples of Broome filed an application in the Federal Court claiming traditional native title or possessory title to areas of land near Broome, including the area of a proposed Crocodile Park, and sought an injunction preventing the granting of the lease to Broome Crocodile Park and an injunction preventing any development of the Crocodile Park. It was claimed that the issue of a special lease would:

• impair the title of the Yawuru People;
• be in breach of fiduciary duty;
• be contrary to ss9 and 10 of the Racial Discrimination Act 1975 (Cth) (RDA); and
• breach the Aboriginal Heritage Act 1972 (WA) because it would have the effect of altering an Aboriginal site when the consent given by the Western Australia Minister for Aboriginal Affairs under that Act was void.

On 8 October 1993, French J made an order, pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), transferring the application to the Supreme Court of WA. He held that a claim involving consideration of a number of State statutes, and their interaction with the RDA and the Commonwealth principles arising in Mabo v The State of Queensland (No.2)[1992] HCA 23; (1992) 175 CLR 1 were not matters within the jurisdiction of the Federal Court other than by virtue of the cross-vesting legislation.

On 9 December 1993, Owen J, after hearing evidence, came to a tentative view that the Applicants had not made out a case for an injunction restraining the issue of the lease for the Crocodile Park. Owen J was considering whether the evidence disclosed a prospect of immediate and irretrievable damage to the "cultural activity and social fabric" of the Applicants if the crocodile farm went ahead before trial. He concluded that the land included an initiates track, and as there was some uncertainty as to the exact location of the initiates track, suggested that the parties endeavour to identify the area concerned so that the lease could exclude this track.

On 18 January 1994, Owen J dismissed the application for an Interlocutory Injunction after hearing further evidence. In his written reasons, published on 4 February 1994, he concluded as follows:

• That there was a serious question to be tried as to the existence of traditional native title or possessory title over the land.
• That a further serious question to be tried was that none of the dealings with the land had extinguished the native title asserted.
• That there were further issues to be tried under the Aboriginal Heritage Act 1972 (WA).
• That damages would not be an adequate remedy.
• That it was not necessary to form a concluded view on the absence of any "meaningful undertaking" from the Applicants to pay compensation should they fail in the action.
• That the evidence did not reveal that it would be against the balance of convenience to decline the application. He said:

I am not convinced that the spiritual and cultural integrity of the Yawuru is seriously at risk by an interference with what is a relatively small and discrete portion of the total area claimed ...
The resumption of ceremonies that would require use of the track is not imminent. It may or may not occur. If it were to occur, the use would be intermittent ... It was submitted that the element of secrecy would be compromised by the initiates having to pass in close proximity to a crocodile park ... The lease abuts a major road and a minor road and is in an area that already has various forms of development ... Levy banks ...will preserve some measure of privacy ... The rite of passage is carried out 'under the cover of darkness'. For all these reasons, I do not think the issue of secrecy is sufficient to tip the balance. I am satisfied that the Third Defendant has a legitimate and significant commercial interest in the lease being issued promptly ... the grant of an injunction could well be the equivalent of final relief against him.

On 28 January 1994, the Applicants applied to the Supreme Court for an injunction restraining the issue of the lease pending an appeal against the decision of Owen J. That application was refused.

On 31 January 1994, a special lease was issued for the purpose of a crocodile farm.

On 2 February 1994, the Applicants applied under the Native Title Act 1993 (Cth) (NTA) for a native title determination and commenced proceedings in the Federal Court on the same date seeking injunctions restraining Douglas from altering the land leased or excluding the Applicants from entering the leased land.

On 4 March 1994, Carr J held as follows:

l. The Federal Court has jurisdiction to grant injunctive relief pursuant to s23 of the Federal Court of Australia Act 1976 (Cth). The Court has jurisdiction to grant an injunction to restrain activities which might wholly or partially destroy the right to benefits flowing from the registration of Native Title under the NTA.

2. If it is found that the Applicants did have native title, then their rights as claimed would be severely affected if the construction of the proposed crocodile farm proceeded.

3. The proposed development works would constitute "an impermissible future act" under the NTA.

4. The factual basis of the claim in the Federal Court is identical with that of the Supreme Court. "Significant new facts" which have come to light since the hearing before Owen J are not matters which have only become known to the Applicants since the hearing before Owen J. They have always been known to the Applicants and, for perfectly understandable reasons, the Applicants chose not to disclose this information to their anthropological and legal advisers.

5. While coming very close to a decision that the bringing of these proceedings in the Federal Court was, in all the circumstances, seriously and unfairly burdensome, prejudicial or damaging to the Respondent, but bearing in mind the rule that the power to strike out for abuse of process should only be used sparingly, the proceedings should be transferred to the Supreme Court of WA pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). 6. Section 82 of the NTA which provides that the Court in conducting proceedings must take into account the cultural and customary concerns of Aboriginal and Torres Strait Islander peoples and is not bound by technicalities, legal forms or rules of evidence, only applies to proceedings in relation to applications lodged under s74 of the NTA, and the application for Interlocutory Injunction is not lodged under that section.

Final note: the Federal Minister for Aboriginal Affairs, Robert Tickner, made an emergency declaration under s9 of the Aboriginal and Torres Strait Islanders (Heritage Protection) Act 1984 (Cth), which lasted for 30 days and was extended for another 30 days, preventing work on developing the Crocodile Park until 5 April 1994 and appointing Mr Fred Chaney to mediate between the parties and provide a report as to whether a permanent declaration should be made. On 5 April 1994, based on the Chaney Report, the Minister made a declaration pursuant to s10 prohibiting development for five years. Douglas and the state of WA have lodged applications in the Federal Court seeking declarations that the Minister's decision(s) under s9 are void, and are expected to lodge similar applications in relation to the slO decision. A motion by the Minister to strike out the applications concerning the s9 decision(s) has been argued and Carr J has reserved his decision. Meanwhile, Mr Douglas has closed the gates of his existing crocodile farm.