The Northern Territory of Australia v Griffiths & Anor [2008] HCATrans 123 (7 March 2008)

Last Updated: 12 March 2008

[2008] HCATrans 123

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D10 of 2007

B e t w e e n -

THE NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

ALAN GRIFFITHS AND WILLIAM GULWIN (ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES)

Respondents

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 MARCH 2008, AT 10.46 AM

Copyright in the High Court of Australia

MS R.J. WEBB, QC: If the Court pleases, I appear with MR M.G. STOREY for the applicant. (instructed by Solicitor for the Northern Territory - Darwin)

MR S.J. GAGELER, SC: If the Court pleases, I appear with MR S.A. GLACKEN for the respondents. (instructed by Northern Land Council)

HAYNE J: Yes, Ms Webb.

MS WEBB: Your Honours, this issue involves the interpretation of a frequently applied provision in the Native Title Act, that is, section 47B. Section 47B(1)(b)(ii) uses the phrase “public purposes or for a particular purpose”. The particular issue is whether proclamations defining the town of Timber Creek and its town lands are for public purposes or a particular purpose.

The Full Federal Court has held that the proclamations do “not define public purposes or a particular purpose within s 47B(1)(b)(ii)”. That is at application book 307 to 308, paragraph 162. In doing so their Honours followed and applied the reasoning of the Full Federal Court in Northern Territory v Alyawarr (2005) 145 FCR 442 and they narrowly construed the term “public purposes” on policy grounds. The relevant quote from the Alyawarr decision at paragraph 187 commences at application book 304 to 305 and it is in paragraph 156 of these reasons.

The narrow interpretation of “public purposes” is at odds with an interpretation by this Court which did not doubt that “public purposes” included the acquisition and subsequent administration of land for a township. The case, your Honours, is The Administration of The Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353. It is to be found in the applicant’s further authorities at tab 2. Could I take your Honours directly to Daera Guba at page 381 in the judgment of Chief Justice Barwick.

There Chief Justice Barwick was considering whether an acquisition for a township of the town of Port Moresby was for public purposes and starting at about seven lines down his Honour held that:

the acquisition of land not only for immediate government use but for later sub-sale to settlers to enable settlement to take place in a controlled fashion and for the colony to develop consistently with government policy –

was undoubtedly for public purposes. So too we say the definition of the town of Timber Creek and the setting apart of town lands with the consequences that followed, as are discussed by the Full Court at application book 307 at paragraph 161, those also enabled the orderly development of the town consistently with government policy.

This case is not concerned with acquisitions and extinguishment of native title. That matter is the subject of this Court’s consideration in Griffiths v Minister for Lands, Planning and Environment which was recently before the Court. The issue here is the circumstances which permit previous extinguishment to be disregarded for the purposes of the Native Title Act.

HAYNE J: More immediately, it is, is it not, whether the whole or a part of the land is to be used for public purposes or for a particular purpose, is it not, proclamation for use?

MS WEBB: It is indeed, your Honour, but in the context of section 47B which is a beneficial provision, 47B(2) being the relevant section, which permits there to be – to disregard extinguishment that had occurred in relation to certain areas. What 47B(1)(b) itself does is determines the scope where that disregard of extinguishment can occur. So what we have is that if the Crown has determined by way of “a reservation, proclamation, dedication, condition, permission or authority” that land is to be used for public purposes, then extinguishment is not to be disregarded. In the context of the Native Title Act it is made express in section 237A that extinguishment means permanent. This provision, 47B(2), is an exception to that and I will come to the reason why.

HAYNE J: Just before you do, which branch of 47B(1)(b)(ii) do you say is engaged? Do you say this is a reservation under which whole or part is to be used for public purposes or do you say it is a reservation, et cetera, under which the whole or part is to be used for a particular purpose?

MS WEBB: Your Honour, it is a proclamation and we say it is for both. It is either for public purposes or it is for a particular purpose. It can be both, but it is quite clearly, we say, on the High Court authority, public purposes. But use as a town could also be a particular purpose. In fact, Justice Nicholson in the Daniel’s Case which we have referred to in our submissions found that the setting aside of land for a township was undoubtedly both public purposes and a particular purpose and we say in that he was correct, your Honour.

HAYNE J: There is a great danger, is there not, in taking the words “public purpose” or “particular purpose” and separating them from the other parts of the phrase. Daera Guba was concerned with acquisition for purposes, this is concerned with use for purposes, is it not?

MS WEBB: It is, your Honour, but nonetheless, in Daera Guba there is no doubt that the Court there was also concerned with use of the land. It is specifically addressed because the variety of uses that were contemplated in the orderly development of the town, that is, enabling the sub-sale of land for orderly development, was considered to be a use for a public purpose. So we say Daera Guba in fact supports us on that as well.

Your Honours, neither the Full Court in Alyawarr nor the Full Court in the present case was referred to Daera Guba. However, the approach of Chief Justice Barwick in Daera Guba squarely accords with the land use planning purpose which the Full Court would have acknowledged as public purposes but for the narrow construction they gave to the phrase in section 47B(1)(b)(ii) on policy grounds and that we say is the error, the narrow construction that was given to it.

HAYNE J: Could I just understand that a little better than I do. I can understand Daera Guba saying that acquisition to ensure orderly planning is an acquisition for a public purpose. Why do you say this is a proclamation under which the land is to be used for public purposes?

MS WEBB: Because it is a proclamation, your Honour, and a setting apart of lands which the Crown clearly intends will be used as a township. Use as a township might be use by private persons or use by the government, indeed, in granting and selling land. That is a government purpose, but it is a use nonetheless, your Honour.

Your Honours, to return to the construction, the narrow construction that their Honours gave to public purposes in the section, the meaning of a provision in an Act including a beneficial provision must be construed by reference to the context and tenor of the legislation as a whole and in the context of the Native Title Act it is expressed, as I said, that extinguish is permanent. If I could quote directly from section 237A which says:

The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.

So the purpose of section 47B is in that respect beneficial. If your Honours were to go to the application book at page 166 in the reasons of Justice Weinberg at paragraph 682 his Honour there sets out the second reading speech and, as his Honour said:

As the Attorney-General observed in the second reading speech when the section was introduced, it was designed to:

“...enable indigenous people who are in occupation of an area where there are no longer any competing third party rights to claim native title and have the court disregard the tenure history of the area in determining that claim.”

So provided it applies, section 47B(2) provides an exception to permanent extinguishment by providing that extinguishment “by the creation of any prior interest” is to be disregarded. But section 47B(1) in its entirety defines and confines the areas to which 47B(2) applies. Section 47B(1)(b) excludes from the scope at 47B(2) those areas for which the Crown has granted rights to third parties or has determined an intended use. The Full Court treats 47B(1)(b)(ii) as a qualification on the application of section 47B which, at application book 304 at paragraph 156, it says is:

no doubt intended to minimise the impact of native title determination applications on areas set aside by proclamation or otherwise under statutory authority for public or particular purposes.

So, accordingly, the Full Court gives the phrase “public purposes” in the subsection a narrow construction to accord, it says, with – and reading further on:

a comprehensible policy that, in the public interest, prior extinguishment which might obviate public exposure to compensation claims or a future act process should be continued in force.

But, with respect, there is nothing in the Act or the extraneous material which suggests such a policy and the Full Court points to none. Indeed, the Native Title Act provides expressly for permanent extinguishment. It sets up detailed regimes for compensation in future Acts, notably there is no reference in the explanatory memoranda or, indeed, in the second reading speech to considerations for liability for compensation, an application of future Act process in respect of sections 47, 47A or 47B, all of which permit previous extinguishment to be disregarded in particular circumstances.

In our submission, there is no legitimate policy basis for construing the phrase “public purposes” narrowly as the Full Federal Court has. The policy of section 47B is discernible in the second reading speech where there are no third party interests or any intended use of the land by the Crown. The policy is to recreate native title where indigenous people remained in occupation of lands but would have had their common or native title rights extinguished by historical tenure.

The specified exclusions where native title is not recreated by section 47B(2) are set out in subsections 47B(1)(b)(i), (ii) and (iii). If your Honours read those sections together, one can see that the areas to which the beneficial intent of section 47B(2) is to apply might well be seen as what historically has been termed “wastelands of the Crown” or “lands for which the Crown has not yet determined a purpose or granted an interest to others”.

It might be noted that in order to set up the town the Crown revoked part of the existing proclamation of a commonage reserve insofar as it applied to what is now the town of Timber Creek. It is curious that had the land remained a proclaimed commonage reserve, there would be no argument that 47B(2) did apply because it would have been excluded from its scope either by way of a proclaimed commonage reserve for either a public purpose or a particular purpose. Your Honours, we deal with the error of the court in relation to particular purpose in our summary of argument. It is crystallised in our reply at application book 355, paragraph 10.

Could I turn to why special leave should be granted in this case. It is an important point. The narrow construction of the phrase “public purposes” in section 47(1)(b)(ii) of the Native Title Act has wider implications than just in this case. It has implications for the application of 47B(2) to any area covered by “reservation, proclamation, dedication, condition, permission or authority” wherever it occurs in the Commonwealth. Even when confined to the application of section 47B(2) to land within a town, this issue potentially arises at all jurisdictions which similarly proclaim, declare or dedicate land as towns.

HAYNE J: But are you aware of any other pending litigation outside the Territory?

MS WEBB: Indeed I am, your Honour. There is one case which has been argued before the Full Federal Court in relation to Broome. There is another claim which is over the southern part of Western Australia which includes not only Perth but a number of towns in that region where it is a very live issue, your Honour. In the Northern Territory there are numerous towns, smaller towns, but including Katherine, Jabiru, Batchelor, Borroloola, Adelaide River and many others.

CRENNAN J: Can I just ask you this in that context. How do you put the point or how do you answer the point that the reservation for town lands obviously raises an issue of various possible purposes and that is one reason
why such a reservation expressed in those terms is one which it would be difficult to describe as being a setting aside for a particular purpose?

MS WEBB: Your Honour, that might be so with particular purpose, but there are any number of particular purposes in relation to it. One is sufficient. It only has to be a part of the area to be used for a particular purpose. That is one answer to it in relation to particular purpose. The other of course is that you can have both a public purpose but within it a number of particular purposes.

CRENNAN J: But you are relying on both, are you not?

MS WEBB: We rely on both, your Honour. In short, the only issue in dispute is the interpretation of a provision in Commonwealth legislation, “frequent application”. This is not a case best left to the Federal Court to deal with matters under the Native Title Act. There is an important question of principle raised where the narrow construction of the phrase “public purposes” by the Full Court is at odds with the approach of the High Court to public purposes. Both cases involved a town site.

The wrong approach of the Full Court we say is to utilise the beneficial aspirations of section 47B(2) as a basis to read down a broad interpretation of public purposes as applied by decisions of this Court. This is an occasion to visit the issue unlike the situation with the town of Hatches Creek, Timber Creek is a real township, albeit a small one, there is a real issue. The High Court has recently heard argument in Griffiths v Minister for Lands, Planning and Environment. In that appeal - - -

HAYNE J: There is no relevant question of intersection between the issues agitated in that litigation and this, is there?

MS WEBB: There is an intersection, your Honour, but - - -

HAYNE J: But does it bear upon the immediate application?

MS WEBB: To the extent that in that application the Territory argued that the purpose of the government – it was a purpose of government to make land available for private use within a town site. This extends that as to whether that could be characterised as a public purpose or a particular purpose.

In conclusion, your Honour, we say that this provision has been sufficiently examined by the Full Federal Court and the matter is now ripe for resolution by this Court and in this case. If the Court pleases.

HAYNE J: Yes, Mr Gageler.

MR GAGELER: Your Honours, there are two very basic problems with the Northern Territory’s argument. One is that it ignores the critical temporal element of section 47B. The other is that it ignores the provisions of the Crown Lands Act (NT). If your Honours look at section 47B, you see it all over the place in the materials but for example behind tab 8 in the authorities at page 153 what you see is that it is focused on:

(b) when the application is made –

The question that paragraph (b)(ii) raises is this. At the time the application is made, can it be said that the land is to be used for purposes that can properly be characterised as public or for a purpose that can properly be characterised as particular. The really great difficulty for the Northern Territory just not faced up to in the present case is at the time when these applications were made, 1999, 2000, if you look at the terms of the Northern Territory legislation then applicable, the only consequence of land being set aside as town land is that if a particular sort of subdivision of a lease occurred, then certain procedural requirements ordinarily applicable did not apply. That is it. That is the only statutory consequence of land being set aside as land in a town.

That cannot in any sense be described as requiring the land to be used for anything. So land set aside as town land did not have to be used for anything. Witness Hatches Creek, the last case to come up before your Honours; it just does not mean anything in the statutory sense. Our learned friends try to get a great deal out of Daera Guba. Daera Guba is a case that concerned the construction of a telegram. Chief Justice Barwick’s reference to “public purposes” at page 381 was him paraphrasing the terms of a telegram that is set out at the top of page 420. It was not even the language. It was not statutory language. It was the language of a telegram. The language of the telegram, top of page 420, referred to:

compulsory purchase, except for objects of public utility.”

Really that sort of throwaway line goes nowhere. There is a whole line of cases that could be explored as to what “use for a public purpose” means. There are rating cases and similar local government cases. All of them suggest that what is required is some sort of commitment to use the land in some way that is public rather than private. One cannot point to any commitment to use this land in any way. You do not even get to that inquiry in the present case. If the Court pleases.

HAYNE J: Thank you, Mr Gageler. Yes, Ms Webb.

MS WEBB: Your Honour, in respect to the telegram in Daera Guba, of course the telegram was an instruction. More importantly, the temporal argument advanced makes no difference. In fact, the Court in this case found that. The purpose of the proclamation in 1975 was to facilitate the orderly development of the town. While the legislative machinery for this purpose facilitated in 2000 was different from that in 1975, the purpose of the proclamation remained the same. The detail of the legislation under which this was achieved subsequent to the proclamation is irrelevant to the issues in the special leave application and on this appeal.

But, further, while this contention was noted, as I said, in the Full Federal Court, in this case it was not adopted. That is at application book 310, paragraph 170. But more importantly, and in fact relevantly, it does represent a departure from the approach of the Full Federal Court in Alwayarr and also in Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 where this very point was considered and rejected. If your Honours please.

HAYNE J: Thank you, Ms Webb.

In our opinion an appeal in this matter would enjoy insufficient prospects of success to warrant a grant of special leave. Special leave, accordingly, is refused. It must be refused with costs.

The Court will adjourn to reconstitute.

AT 11.10 AM THE MATTER WAS CONCLUDED