Nettheim, Garth --- "Isabel Coe on behalf of the Wirajduri Tribe v Commonwealth of Australia and the State of New South Wales" [1994] AboriginalLawB 9; (1994) 3(66) Aboriginal Law Bulletin 14

• Isabel Coe On Behalf Of The Wirajduri Tribe V Commonwealth Of Australia And The State Of New South Wales

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Isabel Coe on behalf of the Wirajduri Tribe v Commonwealth of Australia and the State of New South Wales

High Court of Australia, Mason CJ

23 December 1993, Unreported

by Garth Nettheim

On 3 June 1993 (the first anniversary of the High Court decision in Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1), Isabel Coe "on behalf of the Wiradjuri tribe" served "a general form of writ of summons" against the Commonwealth of Australia and the State of New South Wales. This document of about 4 pages, accompanied by a section of Tindale's map (Aboriginal Tribes of Australia, ANU Press, Canberra, 1974), was filed in a blaze of publicity which fanned a considerable public reaction negative to the Mabo decision and to ongoing efforts to underpin that decision by Commonwealth legislation.

A fuller Statement of Claim was filed on 6 July 1993. On 27 July both defendants took out Summons seeking orders inter alia that the Statement of Claim be struck out, and that the plaintiff pay the defendants' costs. On 17 August the plaintiff filed an outline of submissions in opposition to the defendants' applications. The hearing took place that day in Sydney before the Chief Justice, Sir Anthony Mason.

The Solicitor General for the Commonwealth, Gavan Griffith QC, said that he understood that the action against the Commonwealth was confined effectively to challenges to its sovereignty, which he argued were untenable in light of statements by the Court in Mabo (No. 2) and the earlier decision Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118.

The Solicitor General for NSW, Keith Mason QC, submitted that the "predominant purpose of bringing the proceedings" was the "spurious sovereignty claim" and that the whole proceedings were an abuse and should be stayed. Those elements in the statement of claim which did assert continuing native title within the Mabo principles did so in excessively broad terms and, in particular, failed to specify land claimed with sufficient particularity. Objection was also taken to aspects of the actions which amounted to a representative claim for compensation by the plaintiff for wrongful acts (including genocide) against the Wiradjuri people generally.

The defendants argued that, in a legitimate Mabo claim, the onus is on the claimant to establish that native title has not been extinguished. Counsel for the plaintiff, P.K. Searle, argued to the contrary. The Chief Justice pointed out that, if a claim were made to land which was subject to grants of freehold title (and, possibly, other forms of title), it would be necessary for those title-holders to be made defendants to the proceedings.

Mr Searle for the plaintiff, in argument, confined the sovereignty claim as one against NSW, rather than the Commonwealth, and spoke primarily in terms of the US doctrine of indigenous peoples constituting "domestic dependent nations". He conceded the ultimate sovereign power of the Commonwealth.

Other elements in argument were international law (both customary and treaty law), the proposition that governments are under a fiduciary duty to indigenous peoples, and an assertion that the Crown Lands (Validity of Revocations) Act 1983 (NSW) - which confirmed earlier revocations of Aboriginal reserves - was invalid for inconsistency with the Racial Discrimination Act 1975 (Cth).

Counsel for the plaintiff foreshadowed various amendments to the Statement of Claim if it were not to be struck out. (He noted that he had not himself been one of the pleaders.)

On 23 December 1993, the Chief justice decided in favour of the defendants' applications. In his reasons for judgment, His Honour ruled that the lands the subject of the action were inadequately identified. He said that much of the land to which native title was claimed had been dealt with by statutes and was the subject of grants of freehold and other titles, so that to maintain a comprehensive action, with all interested parties being joined as defendants, would mean that the proceedings would "become unwieldy in the extreme to the point of becoming unmanageable".

The claim to native title within Mabo (No. 2) principles was tenable subject to qualifications already noted (the need to identify the land in question and the need to join parties with a possible adverse interest). In addition, lands subject to Western Lands Act 1901 (NSW) leases were specifically claimed, and Mason CJ referred to what Brennan J had said in Mabo (No. 2) about the Crown acquiring the reversion on expiry of any lease. He also rejected the argument that the onus is on the defendants to prove extinguishment of native title - these are matters for a claimant to establish.

On the sovereignty claim, Mason CJ said that nothing decided in Mabo (No. 2) affected what had been said in Coe:

"Mabo (No. 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are 'a domestic dependent nation entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognized by the laws of the Commonwealth, the State of New South Wales and the common law."

The genocide claim was held untenable on the basis that international treaty law has no application in Australian law in the absence of implementing legislation, “and, in any event, the Convention post-dates most of the acts complained of”. In addition, it was not clear how those acts would entitle the plaintiff to damages or compensation. The claim that NSW lacked legislative competence was "plainly untenable". A fiduciary and trust claim was possibly arguable but the claim as pleaded was too beset by uncertainties and inadequacies to be permitted to stand. Lastly, the Chief justice took the view that the proceedings were tainted by an element of improper purpose:

"The second defendant contends that the predominant purpose of bringing the proceedings is not to litigate them to a successful conclusion but rather that they should serve as an aid to a political process or campaign foreign to the litigation, namely, to contribute to a political settlement of claims made by the Aboriginal people of Australia or by the Wiradjuri who constitute part of that people. The second defendant submits that the inference that the proceedings have been brought for this ulterior and illegitimate purpose should be drawn from the fact that the core of the plaintiffs case is the sovereignty claim, notwithstanding that it is an untenable claim. Certainly the sovereignty claim is the central element in the case pleaded in the statement of claim. Furthermore, the genocide claim features prominently in the statement of claim, despite the difficulties associated with it. In addition, there are technical shortcomings: the inadequate description of the lands claimed and the failure to join interested parties. Indeed, the unwieldy nature of the proceedings arising from the joinder of so many grounds for relief in relation to such a large area of land claimed instead of presenting manageable claims to defined parcels of land for resolution points to the purpose of using the proceedings for political purposes.

"The affidavit of Mr John McDonnell who deposes to the making of various statements by Mr Paul Coe, the brother of the plaintiff and the Chairman of the Aboriginal Legal Service which acts for the " plaintiff in these proceedings, supports the existence of this purpose. These statements indicate that the principal purpose of the proceedings is to pursue the sovereignty claim in order to play a part in creating the impression that the Aboriginal people have rationally based legal claims to much of New South Wales with the consequence that the farming community should start negotiating with the Wiradjuri with respect to the payment of royalties for occupation of traditional Wiradjuri lands. In addition, the statements indicate that the opposition of the States to the Federal Mabo legislation left Aboriginal people with no alternative but to bring land claims, such as that involved here, in the eastern States. The plaintiff has not contested the making of these statements. “In Williams v. Spautz [(1992) [1992] HCA 34; 174 CLR 509), this Court by majority held that proceedings are brought for an improper purpose and constitute an abuse of process where the purpose of bringing them is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers. It would ordinarily follow that, in view of the conclusions I have reached, this action should be stayed permanently. Such a stay would not preclude the plaintiff from bringing a fresh action to tenable claims pleaded in proper form, so long as the action was not designed to achieve a purpose foreign to the litigation. However, in the present case, in the light of the possibility that federal legislation will come into operation and might adversely affect the plaintiff's position if the plaintiff were compelled to commence a fresh action, I consider that I should do no more than strike out the entire statement of claim, leaving the plaintiff, if she be so advised, to file an amended statement of claim confined to tenable claims pleaded in proper form.

“In the result I make the following orders.
1. Strike out the plaintiffs statement of claim.
2. Grant leave to the plaintiff, if so advised, to file and serve an amended statement of claim on or before 17 February 1994.
3. The plaintiff to pay the defendants’ costs of this application.”

The plaintiff, on 11 January, lodged an application for leave to appeal against the Chief Justice's rulings. It is understood that an amended statement of claim is also being prepared.