Nettheim, Garth --- "The Wik Peoples v Queensland and Others" [1994] AboriginalLawB 18; (1994) 3(67) Aboriginal Law Bulletin 17

• The Wik Peoples V Queensland And Others

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The Wik Peoples v Queensland and Others

Federal Court of Australia, Brisbane, Drummond J

11 March 1994

by Garth Nettheim

The action was commenced on 30 June 1993 but was effectively put on hold pending enactment and commencement of the Native Titles Act 1993 (Cth) (the NTA). The principal action was based on common law grounds, principally native title (in accordance with the High Court decision in Mabo v Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1 and possessory title. The applicants applied to Drummond J to defer the proceedings to enable them to apply to the new National Native Title Tribunal for a determination of native title and compensation, under the NTA, together with any other of the various claims in the principal action that the Tribunal would hold to be within its jurisdiction. The Commonwealth, as second respondent, supported the submission. Other respondents did not. They pointed out that the proceedings under the NTA would end up in the Federal Court anyway, under s74, that a number of claims in the action would not be determined in proceedings under the NTA, and that the applicants' proposal would involve the fragmentation of the litigation.

Drummond J said:

The only advantage of any substance identified in argument was that referred to by the Commonwealth, to the effect that a determination of native title in proceedings instituted by application under the Native Title Act would constitute a judgment in rem in respect of that issue and so would be conclusive evidence for the future of the existence or non-existence of the native title here claimed, not only as between the parties to the proceedings under the Native Title Act but as against the entire world; it was submitted that, in contrast, a determination on the applicants' claim to native title in the present proceedings will only be a judgment in personam and so cannot settle the question once and for all whether or not the title claimed exists against everyone, including persons not parties to the action but who may later wish to assert that it does or does not exist. This proposition is disputed by various of the respondents. Whether it is correct is governed by the construction of quite complex provisions of the Native Title Act. The matter was argued only briefly. No attempt was made to analyse the Act in any detail and no authorities were cited. An examination of the Native Title Act to decide whether determinations of native title by the various tribunals which the Act recognises may make such decisions have the status of judgments in rem might be said to be a somewhat artificial exercise, given the lack of consistency in the way the Act deals with the activities of these various tribunals. The Act does not deal with the binding effect that the various determinations of native title referred to therein are to have. The draftsman did not turn his mind to this matter or to the significance that the characterisation of a determination of native title as one that operates in rem has. But if the Commonwealth's submission is correct, I think the advantages of obtaining a judgment in rem in respect of the applicants' claim to native title are so important that the alternative submission of the Commonwealth should be accepted. If it is not correct, I can see no reason to justify delaying the progress of this action any longer.

His Honour then proceeded to consider the law relating to judgments in rein and judgments in personam. He concluded:

As at present advised, I think that, so far as the Federal Court is concerned, the Native Title Act operates to give effect in rem only to a decision of this Court made in proceedings commenced by application to the Registrar of the Tribunal under s13(l) and then transferred to this Court under s74 of that Act. Any decision by this Court in the present proceedings, whether it be that the Wik Peoples have or do not have native title in relation to any of the lands the subject of this action, will operate only in personam and so bind only the parties to the action and those persons represented in it by the applicants, viz., all members of the Wik peoples living at the date the action was commenced.

Drummond J considered the NTA's provisions about "approved determinations of native title" and concluded that they would have the character of judgments in rem In addition, determinations of native title by the High Court would be judgments in rein but only "in actions in which the existence or non-existence of that title is an ultimate issue in the litigation, rather than merely an incidental issue that arises in the course of determining the ultimate issue".

Decisions in relation to native title made otherwise than under the NTA by the Federal Court (and other Federal and State courts and tribunals) are required under the NTA to be recorded on the National Native Title Register and notified to land titles offices (ss193(1)(c) and 199). This may (or may not) indicate that such determinations are also judgments in rem.

But, in the case of a "non-approved determination by the Federal Court", he considered that the matter was concluded by s213(1): "If, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in the Act".

This means, he considered, that in such proceedings the Federal Court should proceed i n accordance with Part 4 of the NTA. However his overall analysis led him to conclude, "albeit with some doubt", that a Federal Court determination other than one initiated with the Registrar under the NTA would not have the character of a judgment in rem. The particular proceedings before him could lead only to a judgment in personam because of the fact that the applicants, described as the Wik Peoples, were identified only in relation to 187 named individuals even though they were proceeding in a. representative capacity as well as in their own right.

His Honour concluded that the applicants should be allowed to seek a determination of native title under the NTA, subject to one qualification concerning their claim to possessory title as well as to native title. He took the view that the possessory title claim depended on the same facts as the claim to native title and could possibly be determined as part of the NTA proceedings; but even if it did not fall within the definition of native title in s223, a determination in the present proceedings would almost certainly involve an examination of much the same extensive body of evidence:

The advantage that flows from obtaining a judgment in rem in relation to native title in proceedings under the Act would not, in my view, be sufficient to outweigh the burden that the respondents would be subjected to, if they have to litigate the applicants' claim to native title and to possessory title in two quite separate proceedings, but on much the same body of evidence.

Drummond J ordered that the proceedings before him be adjourned sine die to allow proceedings to be initiated under the NTA provided the applicants, within 14 days, undertake not to prosecute further in the present proceedings their claims to Aboriginal title and possessory title. Otherwise the action was adjourned to 18 April.

Note: The applicants gave certain undertakings to the court, and proceeded to lodge applications for determination of native title and for compensation with the Native Title Register.