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High Court of Australia Transcripts |
Last Updated: 23 February 2016
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P59 of 2015
B e t w e e n -
MINGLI WANJURRI McGLADE (FORMERLY WANJURRI-NUNGALA)
Plaintiff
and
REGISTRAR NATIVE TITLE TRIBUNAL
First Defendant
STATE OF WESTERN AUSTRALIA (SUED ON ITS OWN BEHALF AND AS REPRESENTING THE GOVERNMENT PARTIES TO THE WAGYL KAIP & SOUTHERN NOONGAR INDIGENOUS LAND USE AGREEMENT)
Second Defendant
SOUTH WEST ABORIGINAL LAND & SEA COUNCIL ABORIGINAL CORPORATION [ICN 3832]
Third Defendant
GLEN COLBUNG (SUED ON HIS OWN BEHALF AND AS REPRESENTING THE INDIVIDUALS NAMED AS “REPRESENTATIVE PARTIES” IN, AND WHO HAVE SIGNED, THE WAGYL KAIP & SOUTHERN NOONGAR INDIGENOUS LAND USE AGREEMENT)
Fourth Defendant
HAZEL BROWN
Fifth Defendant
Office of the Registry
Perth No P60 of 2015
B e t w e e n -
MERVYN EADES
Plaintiff
and
REGISTRAR NATIVE TITLE TRIBUNAL
First Defendant
STATE OF WESTERN AUSTRALIA (SUED ON ITS OWN BEHALF AND AS REPRESENTING THE GOVERNMENT PARTIES TO THE BALLARDONG PEOPLE INDIGENOUS LAND USE AGREEMENT)
Second Defendant
SOUTH WEST ABORIGINAL LAND & SEA COUNCIL ABORIGINAL CORPORATION [ICN 3832]
Third Defendant
REG YARRAN (JNR) (SUED ON HIS OWN BEHALF AND AS REPRESENTING THE INDIVIDUALS NAMED AS “REPRESENTATIVE PARTIES” IN, AND WHO HAVE SIGNED, THE BALLARDONG PEOPLE INDIGENOUS LAND USE AGREEMENT)
Fourth Defendant
Office of the Registry
Perth No P61 of 2015
B e t w e e n -
NAOMI SMITH
Plaintiff
and
REGISTRAR NATIVE TITLE TRIBUNAL
First Defendant
STATE OF WESTERN AUSTRALIA (SUED ON ITS OWN BEHALF AND AS REPRESENTING THE GOVERNMENT PARTIES TO THE WHADJUK PEOPLE INDIGENOUS LAND USE AGREEMENT)
Second Defendant
SOUTH WEST ABORIGINAL LAND & SEA COUNCIL ABORIGINAL CORPORATION [3832]
Third Defendant
NIGEL WILKES (SUED ON HIS OWN BEHALF AND AS REPRESENTING THE INDIVIDUALS NAMED AS “REPRESENTATIVE PARTIES” IN, AND WHO HAVE SIGNED, THE WHADJUK PEOPLE INDIGENOUS LAND USE AGREEMENT)
Fourth Defendant
Office of the Registry
Perth No P62 of 2015
B e t w e e n -
MARGARET CULBONG
Plaintiff
and
REGISTRAR NATIVE TITLE TRIBUNAL
First Defendant
STATE OF WESTERN AUSTRALIA (SUED ON ITS OWN BEHALF AND AS REPRESENTING THE GOVERNMENT PARTIES TO THE SOUTH WEST BOOJARAH #2 INDIGENOUS LAND USE AGREEMENT)
Second Defendant
SOUTH WEST ABORIGINAL LAND & SEA COUNCIL ABORIGINAL CORPORATION [3832]
Third Defendant
DONALD HAYWARD (SUED ON HIS OWN BEHALF AND AS REPRESENTING THE INDIVIDUALS NAMED AS “REPRESENTATIVE PARTIES” IN, AND WHO HAVE SIGNED, THE SOUTH WEST BOOJARAH NO #2 INDIGENOUS LAND USE AGREEMENT)
Fourth Defendant
NETTLE J
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO PERTH AND BRISBANE
ON WEDNESDAY, 17 FEBRUARY 2016, AT 11.30 AM
Copyright in the High Court of Australia
____________________
MR R. MERKEL, QC: If your Honour pleases, I appear with my learned friend, MS S. GORY, for the applicants in each of those matters. (instructed by Murfett Legal)
MR P.D. QUINLAN, SC: If your Honour pleases, I appear with my learned friend, MS C.I. TAGGART, in Perth, for the second defendant in each matter, the State of Western Australia. (instructed by State Solicitor (WA))
MR W. SOFRONOFF, QC: If your Honour pleases, I appear with my learned friend, MR G.J.D. DEL VILLAR, in each of the four matters for the third, fourth and fifth defendants. (instructed by Clayton Utz)
HIS HONOUR: There is a submitting appearance for the first defendant. Yes, Mr Merkel.
MR MERKEL: I assume your Honour has had the opportunity to read the material that has been filed.
HIS HONOUR: Yes, I have, thank you.
MR MERKEL: Did your Honour have the opportunity to read the proposed special case that we had put forward?
HIS HONOUR: I did.
MR MERKEL: Yes, thank you, your Honour. Your Honour, can I just explain the background to the matters, and would your Honour please forgive me if I start with an assumption that your Honour may not be familiar with the detail of the Native Title Act but I may have overtaken my expectation in that regard.
HIS HONOUR: I have looked at the provisions which are referred to in the large affidavit filed by solicitors for one of the defendants and also those which are referred to in your materials.
MR MERKEL: Thank you, your Honour. I just need to try and give your Honour a context.
HIS HONOUR: By all means.
MR MERKEL: Can I just explain at the outset, your Honour, that it seems to us that the issue today is whether the matter should or should not be remitted.
HIS HONOUR: Yes.
MR MERKEL: We put the special case forward late yesterday to the parties and to your Honour for two main purposes. The first is to show that there are no facts in issue that are relevant to the determination of the question of law sought to be raised in the special case which will be determinative of the application to show cause. So what we have done is taken the broadest view of any facts that could be relevant and we have incorporated those into a special case.
Now, we are cognisant of the fact that the special case can only proceed by agreement but we in the alternative would say, your Honour, that if your Honour indicates today that the matter is not one as at present advised that should be remitted we would expect one of two courses to be followed. The parties, we would expect, would reach agreement on a special case because that would not have the limiting factor of the case stated, but if the parties do not reach agreement we would expect that your Honour would need to be persuaded in due course as to why a case should not be stated on facts that are not in dispute and in controversy between the parties.
So your Honour is not encumbered under section 18 of the Judiciary Act by the requirement of an agreement between the parties. The only difference between the two pathways is, of course, inferences of fact are not open to be drawn on a case stated but this is not a case where inferences of fact really - inform the ultimate question.
So, your Honour, I will be addressing your Honour on what the issues are, why they are important, why they should be resolved quickly and why there would be grave prejudice, contrary to the submissions of our learned friends, if the matter were to be sent back to, say, a single judge of the Federal Court.....pathways, but I will come to that, if I may, in due course. We say on the material before your Honour today, this matter is one that should be retained in this Court.
We say that in our learned friends’ submissions there is no identification of any fact in issue so I think your Honour can proceed safely on the basis that any of the facts that are relevant to determination of the question of law are set out in our proposed special case, but if there is some additional fact we would, no doubt, accommodate it but we do not see any additional fact being relevant.
Your Honour, the context is as follows, and can I just draw a very broad picture of how the Native Title Act works without taking your Honour laboriously through the provisions? There are two core pathways for resolution of native title claims. The first is by lodging a claim with the court by applicants who must jump through the hoops under section 61 and other provisions of the Act which requires an authorisation of native titleholders that they represent them in the case and they then become registered applicants and registered native title claimants, and those persons under the Act are charged with all matters relating to the conduct of the case. They must go through the Native Title Tribunal after being authorised to act under section 251B.
Once a claim is up and running, the native title claimants, and not the registered holders, make all decisions concerning the claim, including its settlement. So that is the first pathway. Under the relevant provisions, under section 62 your Honour will see that the registered native title claimant, or applicant if more than one, must act jointly. Our learned friends have pointed to some issue in the Federal Court about whether that means by majority or unanimously, but we are not concerned with that because if your Honour looks at section 62A – sorry, your Honour will see section 61(2) - where there is a native title determination application or a compensation application, which are the two main vehicles which provide benefits to native titleholders under the Act, under (c) the following, by:
the person –
that is the registered person –
or the persons are jointly, the applicant –
and then if your Honour goes to section 62A:
Power of applicants where application authorised by group –
which is most of the native title cases, the authority under the Act to the applicant is to -
deal with all matters arising under this Act in relation to the application -
which we would take to mean conduct of the case to trial or settlement. That takes us really to the second pathway, your Honour – sorry, while your Honour is in this pathway, can I take your Honour to section 190A. I have the reprint as at 1 July, your Honour, and that would be on page 325 if that is the same reprint your Honour has.
Your Honour will see that where claims are made to the Federal Court the claimant application must be one that goes through what I will call the required legislative hurdles, the most important relevantly for present purposes is 251B which is at page 456 which is there must be an authorisation by the native titleholders of the applicants. So the selection of the applicants to conduct the case through to trial or settlement is a carefully regulated procedure which, on its face, requires them to be acting jointly as a group; that is, capable of being by majority or unanimous but that is not the issue that arises in the case.
Could I now go to the second pathway, your Honour, which is the pathway that has most commonly been followed because native title cases have become expensive, have become bogged down with procedural and other difficulties, evidentiary difficulties - so most of the native title claims are area claims by native title group, which is the category with which we are concerned in the present case, and they can be resolved by an Indigenous Land Use Agreement, an ILUA, and that takes us into the sections with which we are concerned in the present matter, your Honour, and those sections relevantly, for present purposes, start at 24CA which is at page 40.
So we have an area agreement which must meet the requirements of 24CB to 24CE, and the relevant requirement for present purposes, your Honour, is in 24CD(1) and (2)(a) where the reference:
All persons in the native title group . . . must be parties –
and where there is a registered native title claimant all registered native title claimants must be parties.
HIS HONOUR: Yes.
MR MERKEL: It says in subsection (6):
Any other person may be a party –
Now, your Honour, what occurs under those provisions is if your Honour goes through to 24CG there is an application for registration. So there must be three steps before registration can take effect. The first is the registered native title claimants must agree to an area ILUA, and that must be an agreement that complies with sections 24CB to 24CE.
The second, your Honour, is that it must be authorised under what is a mirror image authorisation provision to registering an applicant, which is 251A which is at page 456, at which point the native titleholders get to have their say on authorisation. When that occurs the area agreement, through the various sections I have taken you through but starting with 24CG at page 44 –am I giving your Honour the right pages?
HIS HONOUR: Yes, thank you.
MR MERKEL: Your Honour will see:
Any party to the agreement may, if all of the other parties agree, apply in writing . . . for the agreement to be registered –
Then there is a notice procedure, 24CI is objections, and I think the present – I will come back to where we are in the present matter. Then, your Honour, when there is a decision about registration under 24CJ after certification that is required, the registration has the agreement operative under the statute to bind all the parties as if it were a contract. The usual endpoint of ILUAs is the extinguishment of native title claims and compensation claims, which mean that the claims are at an end and substituted entirely for the rights under the ILUAs.
Your Honour, they are the main provisions. Can I take your Honour to the present case? The present case has had six ILUAs involving I think slightly more, six or seven claims, but the six ILUAs have covered the settlement of what I will call the Noongar claims that affect the native title rights of approximately 30,000 people. The South West Aboriginal Land and Sea Council Aboriginal Corporation is the rep body that conducts the litigation, the settlement, and will be charged with administering the ILUAs and the sums that are substantial that will be payable under them.
So the native title claims in fact, as we would understand it, have ceased for some years now, pending the resolution of the ILUAs which are now at the registration process. Four of the six ILUAs on the uncontested facts have not been signed by all of the registered native title claimants. We have just selected one case to go forward - because the same issue arises in each of the cases - which is McGlade and there it is two out of three of the registered claimants in respect of what is called the Wagyl Kaip – I am probably mispronouncing it – claim.
So there are two separate claims which I would imagine are probably overlapping, and the second is the Southern Noongar claim. So all of the registered native title claimants have signed the agreement for the Southern Noongar claim but they have merged into one agreement. There are two separate native title holdings, the Wagyl Kaip, the Southern Noongar – possibly with some overlap – but all of the native title claimants under the Act, if our interpretation is correct, must be parties to the ILUA. The other ILUAs have the same issue arise. Your Honour, the problem that has arisen is that due to the decision of Justice Reeves – I am not sure whether your Honour has had a chance - - -
HIS HONOUR: Yes, I have, thank you.
MR MERKEL: - - - to look at it, but due to the decision of Justice Reeves, the whole of the native title – all native title practitioners in the country are presently operating and required to operate on the basis that his Honour’s decision is correct, and can I give your Honour where you will find - the most significant evidence of that is at page 310 of the material annexed to Mr McDuff’s affidavit, which I read. Your Honour will see – this is on the native title website - - -
HIS HONOUR: Yes.
MR MERKEL: - - - on the left-hand column, your Honour, you will see “Who must be a party” and it says “the registered native title claimant” at the first dot point. But opposite under “Did you know?”:
The law says that at least one of the persons whose name appears on the Register . . . must be named as a party to the agreement.
So what has occurred, your Honour, is that by reason of Justice Reeves’ decision – and correctly because as an administrative body, as we would understand it, the Tribunal is bound to apply the decision of a judge of the court as to the law – the Native Title Tribunal is accepting applications for registration of ILUAs if one applicant signs – there may be 20, there may be 19, but if one signs that is all that is necessary, and that is happening and has been happening throughout Australia since his Honour’s decision. It may have happened even earlier, but I do not want to go back to what may have happened in those earlier days. But we understand ILUAs are being negotiated around the country every day.
HIS HONOUR: That is six years ago, that decision.
MR MERKEL: Yes, your Honour. So because of the difficulty of contesting cases, ILUAs have become a main pathway for resolution of native title in this country and most of them, if they are substantial, will be area claims contested - which are the subject of claims in litigation sought to be resolved by the State and the rep body through an ILUA.
Your Honour, we would believe the importance of this issue cannot really be overstated. This case is just an indication of what is actually happening with rep bodies and governments who are acting on the faith of the decision of his Honour and the Native Title Tribunal, which by its own statement on the webpage, must accept an ILUA if signed by one party.
Can I just now go to the practical consequences which our learned friends surprisingly overlook, but the practical consequences are very substantial? As your Honour will no doubt be aware, the most important witnesses in native title cases are the elderly native titleholders who are at risk of death or infirmity and courts in the Federal Court are constantly having preservation hearings because the case’s final hearing is put off to some indefinite date and, therefore, preservation hearings are necessary to ensure that the witness of elderly native titleholder – the evidence of elderly native titleholders is not lost.
Once an ILUA starts to be negotiated, the case is obviously – it stops, and these cases have stopped for years now. What our learned friends are asking your Honour to do is to continue that into the indefinite future rather than get this important issue resolved by this Court. They are asking for further and further delay, which means if these ILUAs are built on a misconception, then it continues, the cases get adjourned, more people whose evidence will be critical will die, preservation evidence will have ceased because why would you take preservation evidence when, according to the rep body, the case is settled, and this will go on indefinitely.
That is just our case, your Honour. Exactly the same will apply to every other rep body in this country conducting claims which are being negotiated towards a settlement with government under – if we are correct, a misconception as to what the Act requires. If we are incorrect, then the speedy determination will only resolve with certainty the Native Title Tribunal’s practice. But if we are correct, your Honour, fundamental error of law and a misapprehension as to the functioning of the Act will continue to be perpetrated and permeate the system with, may I say, one of the most vulnerable groups.
I can only say, your Honour, for me it is surprising that it has taken until 2016 for this point – which on any fair reading of the Act is obviously going to be contentious, at its most generous, to emerge in this jurisdiction, because the groups are represented by rep bodies - rep bodies are their legal advisers and conducting cases for them, rep bodies are proposing an ILUA, they are not looking to put hurdles in their pathway to getting an ILUA, so there is a settlement, it goes to the Tribunal, the Tribunal has already stated what the law is, it takes a case such as the present - and maybe the magnitude of the case is one of the reasons why this is the case where the issue has emerged. But now it has emerged, your Honour. We can see no good reason why there is not – it is not incumbent upon all of the parties to seek to get a quick answer to it.
I have not taken your Honour to one other section which is important and is an answer to any argument about absurdity or anomaly if one person out of 20 holds out and that is section 66B enables an application to be made to remove a registered claimant, so an applicant can be replaced. So what we really say is there is a certain symmetry about this statutory scheme with registered applicants being intended as a group jointly to conduct litigation and when it finishes all of them to be parties to the ILUA. That concludes the litigation, and the conclusion of it – again, the importance of that cannot be overstated because it is the giving up forever of all native title rights and all claims for compensation for wrongful alienation of native title forever; it is a final resolution.
So the Act has been quite careful in setting up the procedure, and section 66B is the safety valve. As is clear from the evidence, our client in McGlade refused to sign the agreement. It was open to the rep body, or whoever, to apply to remove her, at which point of time there would have been no doubt a matter before the court with all recourse and then if she was removed, the agreement would be signed by all applicants. So we say this is not a case where there is some anomaly or some Act that produces an absurd Cooper Brookes-type outcome - - -
HIS HONOUR: Would Ms McGlade have come within any of (a)(i) to (iv) of section 66B?
MR MERKEL: It could be (iii) and (iv), your Honour. I say “could be” – it is not my role to be contending why she could be replaced, but if she is no longer authorised by the group, that could mean an application under 251B or something like that.
HIS HONOUR: That could be done by a further resolution revoking her authorisation, could it, under 251B?
MR MERKEL: Yes, or exceeding her authorisation. But, your Honour, the Act has set out this scheme, it is quite consistent with the gateway that you have to go through to get there, and this is designed to ensure that the politics of the native title holding group do not permeate the authorisation that is given after the Native Title Tribunal has authorised. Here, to go through removal, it has got to be replaced by the Federal Court, for good reason. So this is a statutory scheme designed to create rights which are protective of the holders and has a carefully calibrated scheme with roles of the Native Title Tribunal and the Federal Court which would resolve the issues in the present case.
So, your Honour, we would make the following submissions. Contrary to our learned friends’ submissions, this is a substantial case. The case itself is one that is a relevant consideration as to whether it should be resolved in this Court, together with the other factors. We understand it is the largest proposed settlement package of any ILUA; it is $1.3 billion, which is said to be the value. It involves the extinguishment of native title rights of over, I am told, 35,000 Noongar people in relation to over 200,000 square kilometres of land.
According to the material that our learned friends have put in, and no doubt I will be corrected if I am wrong, part of the ILUA requires certain legislative steps to be taken, and we would say there is a public interest in those legislative steps being taken on a basis of an understanding of what the law is rather than on apparent misconception on our case as to what the law is not.
So we would say when you consider the nature and extent of this ILUA and the steps being taken by the government of Western Australia to give effect to it, it is surprising to us why the government would not be supporting an early determination rather than seeking to delay a determination of these issues. But be that as it may, we say there is a clear public interest in this case being resolved.
That is the first point, but the second point, which is equally powerful in terms of the public interest, is that we understand ILUAs are being negotiated I think in Queensland, I think there is one about the Adani coal mine, but ILUAs are being negotiated all over Australia on the basis of the requirement of only one applicant having to sign. ILUAs by definition will extinguish native title rights, bind all the native titleholders who have given an authorisation to all of the applicants jointly to act under an Act that says all of the applicants, registered applicants, must agree to an ILUA. So we say this same question permeates the whole of area ILUAs, which is the main vehicle for settlement of native title claims, throughout the country on a day-to-day basis.
HIS HONOUR: Mr Merkel, accepting that it is important and has broad ramifications, why would it not be appropriate to remit it to the Federal Court, and, say, for a Full Federal Court if they think it appropriate to deal with the matter?
MR MERKEL: Your Honour, there are a few reasons. Your Honour, the first is it is said that this Court will be better informed by a view of a lower court. The answer to that is Justice Reeves has articulated the contrary view, so this Court already has that contrary view. We say that the questions of statutory construction are probably the main part of this Court’s jurisdiction, putting aside constitutional issues, and we say it is very hard to see how through that scheme that I have taken your Honour to there is any benefit in remitting this matter to a Full Federal Court, but normally it would go to a single judge.
Your Honour may say it should be determined by a Full Federal Court because a single judge would have to follow the principle of not disagreeing with Justice Reeves unless clearly wrong so, obviously, that is a hurdle that this case should not have to go through. But we would see no point or purpose served by it going to a Full Court; the issues are so substantial it will end up coming back here anyway.
Now, I understand that is often put to your Honour, but we say that for resolution of this issue throughout the country in this area that under a national statute concerning a core provision of that statute ultimately is never going to be resolved until it is resolved by this Court. So a Full Court decision, your Honour, will not resolve the dispute, even if the parties in this case accept the decision, which they may or may not do, and appeal, it still has to come back ultimately to be resolved by this Court.
HIS HONOUR: If that is so, are we not benefitted by having the two views, as it were? Both the Reeves view – and if that is adhered to, confirmation by a Full Court – or alternatively the view which the Full Court takes to the contrary which would, presumably, be opposed by the defendants on appeal to us?
MR MERKEL: Your Honour, yes and no. If this were a case that involved complex facts that required analysis, yes, clearly there would be a benefit. If they were complex issues of law or interrelated issues of statutory construction where a court could bring its expertise, if it was a tax matter involving a lot of sections of the Tax Act, and the Federal Court being the main court that deals – or the court that deals with tax matters, this Court might be assisted by the wisdom of that court in relation to those issues of substance. But, your Honour, with respect, this is a very simple issue of statutory construction and it is hard to see how any expertise of the Federal Court in dealing with native title matters would really inform in a significant way how this Court might approach it.
HIS HONOUR: All right.
MR MERKEL: We have got Justice Reeves’ view and the Court will be given the opposing view but, your Honour, there are no cases. Justice Reeves is the only decision on the point. Our learned friends have referred to the case under section 61(2) where there is division in the Federal Court, so we say this Court would not be assisted, but there is a further reason, your Honour, and a really important – two further reasons. The second further reason, your Honour, is it will necessarily be delayed by going to a Full Federal Court.
This Court will be able to determine the issue very quickly at a final hearing and the issue will be resolved once and for all under the Act. If there is a problem under the Act that our interpretation is correct, then it may be up to Parliament to change it, but if this were not a core provision I would have more difficulty in identifying to your Honour why maybe the Federal Court should not have a first hearing. But in respect of a core provision like this, there is obviously a public interest in this matter being resolved quickly.
HIS HONOUR: Very well.
MR MERKEL: So the third reason, your Honour, is this Court will always be sensitive to costs. Now, there is no financial benefit of any kind in this for any of the applicants. They obviously would prefer their native title rights to giving them up. We say that having to incur costs and going to the Federal Court will incur a lot more costs and one has to ask, on a costs benefit analysis, is this really an appropriate case to remit? We say for those reasons this is not a matter that ought to be remitted. In effect, our learned friends have not really grappled with the alternative question. If they are wrong, would they not want to know quickly?
Take the rep body - it is representing all the native titleholders. If they are acting on a misconception of law, surely it is their duty to get this resolved as quickly as possible. Take the State of Western Australia - surely it is its duty to get this resolved and not have its own Parliament misled. I mean, we say that - - -
HIS HONOUR: We had better be speedy about this; they are going to pull the plug on us at 11.30, I understand – or 12.30.
MR MERKEL: Your Honour, I think I have covered the main points. Would your Honour just excuse me for a minute?
HIS HONOUR: Certainly.
MR MERKEL: I am reminded by my learned junior, your Honour, that one other problem – one other issue is the objection process that is currently running through the Tribunal with 107 objections.
HIS HONOUR: Yes.
MR MERKEL: Now, that is not going to stop but, again, all the difficulties of expense and time that is being spent there will continue through to a resolution. So because the Native Title Tribunal has to accept Justice Reeves’ decision, in this very matter, your Honour, there are problems of delay and there will be applications for a stay on any decision, pending a court case and so forth. So we see that both logic and the public interest would support our application for this matter to remain in the Court.
HIS HONOUR: Thank you, Mr Merkel.
MR MERKEL: If your Honour pleases.
HIS HONOUR: Mr Quinlan.
MR QUINLAN: If your Honour pleases. With your Honour’s leave, I have discussed the matter with my learned friend, Mr Sofronoff, who has in addition to other matters an affidavit he seeks to read, and with your Honour’s leave it is proposed that he go first.
HIS HONOUR: Yes, very well. Thank you. Yes, Mr Sofronoff.
MR SOFRONOFF: Your Honour, I seek leave to file and read an affidavit of Mark Andrew Geritz, filed on 16 February 2016 in matter P59 of 2015, which I read in all matters.
HIS HONOUR: Yes. Can I take it there is no objection, Mr Merkel?
MR MERKEL: No, your Honour.
HIS HONOUR: Yes, thank you. I will take that as read, Mr Sofronoff.
MR SOFRONOFF: Thank you, your Honour. Your Honour, I can be succinct. There is no advantage for the clients whom I represent in any delay of the matter being heard. We put forward.....namely, whether
this.....is considered.....on all sides a simple matter of construction whether it should trouble the High Court in its original jurisdiction in the first instance or not.
Secondly, it is not just a matter of sending it to a trial judge. We would – that is, my clients would co-operate with the plaintiffs, if they wished, to agree a case to be determined by the Full Court of the Federal Court. It is not correct, in our respectful submission, to think that if the Full Court determined this case one way or the other it would inevitably have to be decided again by the High Court.
Whether the Full Court decided the matter unanimously or by majority, one side or the other side of the parties on the question might accept that determination as final. There is no reason to suppose that a hearing before a Full Court of the Federal Court in any capital city of the country would not be much faster than waiting for the High Court to find time within its calendar to deal with the matter.
So, in our respectful submission, both by reason of the nature of the question and the availability of a procedure by which the Full Court of the Federal Court could determine the matter, and perhaps finally if all parties agreed or if special leave were refused, there is no reason why the High Court should seek to accommodate this case in its calendar. Having said those things, there is no tactical or practical reason why my client would strongly urge one course or the other. Those are our submissions, your Honour.
HIS HONOUR: Yes, thank you, Mr Sofronoff. Mr Quinlan.
MR QUINLAN: If your Honour pleases, I can be brief as well. From the State of Western Australia’s perspective, we do not in any way doubt the importance of the issue, nor for the need for the matter to be determined without delay. The issue that we raised in our submissions concerned the fact that the correctness or otherwise of Justice Reeves’ decision may not ultimately be the only issue which arises in the application that has been made by the plaintiffs.
We raised in our outline of submissions the fact that there are other possible constructions of the Act, including the fact that the native title holding group itself in these cases according to the affidavits filed by the other defendants, authorised the registered native title claimants to act in the way that they did; that is, to execute the agreement by one or more of the persons who jointly comprise the native title claimants.
So that there is not simply an all or nothing issue as to whether it is simply one or, as the plaintiffs would have it, the entirety of the persons who jointly comprise the claimants, but also whether the nature of the authorisation given by the larger group in the authorisation meetings satisfies the requirements for entering into the agreement.
Now, we raise that because, in our respectful submission, it raises other issues – potentially other issues of fact which would be relevant. Can I say in relation to that that our learned friend’s draft special case – which we are grateful for having received last night – does endeavour to deal with that in paragraph 16 of the draft special case, namely, by the plaintiff agreeing solely for the purpose of the special case that the resolutions to give effect to the agreement were passed in accordance with the authorised decision-making process under the Act; that is, the plaintiff proposes solely for the purpose of the special case that the process for execution of the agreements was authorised by the persons who hold or may hold native title.
That is a matter which, in our respectful submission, were it agreed would in all likelihood deal with the factual issues that we raised, although if it is agreed solely for the purpose of the special case and thereby, in effect, assumed, there would need to be work in relation to what the question was asked because the question of authorisation, that is, whether or not these agreements were properly authorised is, we understand, the subject of objections before the National Native Title Registrar and would need to be considered in due course.
HIS HONOUR: Mr Quinlan, is this a question which, as it were, is in addition to the correct construction of 24CD or something which informs the correct construction?
MR QUINLAN: It is, in our respectful submission, both; that is, there is separate statutory requirement that the agreements be authorised by the relevant persons who hold or may hold native title.
HIS HONOUR: Yes.
MR QUINLAN: And in accordance with the approach to construction adopted in other parts of the Native Title Act concerning the actions of registered native title claimants, the nature of the authority informs the manner in which the native title claimants can perform their functions. So it is in effect both, although we accept that agreeing that that authorisation were made would be a matter which may well address the factual issues that we raised. But as my learned friend, Mr Sofronoff, has said, those matters are matters which could also form a stated case before the Full Court of the Federal Court to be dealt with in an expeditious way.
Can I say this in relation to the assistance which this Court may derive from the consideration of the matter by the Full Court of the Federal Court? There is an aspect of the Federal Court being the specialist court dealing with native title that is relevant to this resolution because while it concerns the construction largely of sections 24CD and the subsections to that, the issue which arises, which is the manner in which registered native title claimants perform their functions, is one which arises not only in this context in the Act but also, as we have set out in our submissions, in the context of applications before the Court, and also in relation to other provisions of the Act concerning future Acts where it is necessary for there to be negotiation with native title claimant parties, and in that area the Full Court of the Federal Court has also expressed views as to the circumstances in which the native title parties appearing on the register are to be engaged with.
So that yes it is an important and particular question of construction of section 24CD, but it is an issue which, in our respectful submission, would be informed by the general operation of the Act in relation to the actions taken by persons who are authorised by native title holding groups to take steps under the Act.
HIS HONOUR: So your submission is that it is preferable that it go to the Federal Court, preferably the Full Federal Court, rather than directly to this Court?
MR QUINLAN: Yes, your Honour. Those are our submissions.
HIS HONOUR: Yes, thank you. Mr Merkel, anything in reply?
MR MERKEL: Yes, your Honour. At the risk of repeating myself on one matter we say this is such a threshold and important provision - the authority of this Court rather than the Full Federal Court is where this matter should be resolved. Whether it comes by way of appeal from the Federal Court or not, we say the issue is of such importance for the industry as a whole it should not be just this case that is the vehicle, the only vehicle, for it. That is why we say it should ultimately be resolved by this Court.
On my learned friend, Mr Quinlan’s, point; your Honour, we have incorporated his authorisations in our two resolutions and we have framed a question which limits the question to the construction of 24CD(1) and (1)(a). We do not wish, and are not asking the Court to go outside that question. If it is answered in our favour, what we ask is are we entitled to relief and, if so, if it is answered against us what is the relief the defendant should get.
There are no facts that our learned friends have identified that are outside the special case that we have put forward that could possibly inform or affect the answers to those questions. Having said that, if your Honour indicates that at this stage the matter – proposed that the matter should remain in the Court, we are in a position to talk to our learned friends and take on board any suggestions they may make as to this special case.
At the moment nothing has been put forward that suggests it is not able to go forward in the form it is in, but if your Honour finds at this stage it is not appropriate to remit the matter we would then seek to have the parties agree on the special case and come back within, say, a week or a very short time with an agreed case or further submissions on what may or may not be in disagreement.
We have shown to date we are seeking to accommodate everything our learned friends put forward by adding to the special case the resolutions, which we say cannot inform the construction but they wish to rely on it, so we do not wish to say to the Court that these are not matters that should not be before it and for the purposes of this case we have agreed that that is the fact. What happens in the Tribunal, of course, is an entirely different matter. So we say that no good reasons have been put forward why your Honour, at this stage, should remit the matter to the Federal Court.
HIS HONOUR: Thank you. Mr Sofronoff, can you hear me?
MR SOFRONOFF: Yes, your Honour.
HIS HONOUR: I wanted to ask you because I was not sure whether the position of your client remains that you would prefer the matter go to the Federal Court rather than be dealt with in this Court to begin with, or whether it has altered as a consequence of the moves that Mr Merkel’s clients made in the last couple of days.
MR SOFRONOFF: No, your Honour, it remains the same, that our preference would be that the matter go to the Federal Court.
HIS HONOUR: Is the reason for that that you perceive it would be dealt with there with greater speed or something else?
MR SOFRONOFF: It is the speed, your Honour.
HIS HONOUR: Yes, thank you.
I have before me four proceedings which have been instituted in the original jurisdiction of this Court. In each matter, the plaintiff seeks an order to show cause why prohibition should not go to the Registrar of Native Title Tribunal to prohibit the Registrar from taking any steps under ss 24CG, 24CH, 24CJ or 24CK of the Native Title Act 1993 (Cth) (“the Act”) in relation to an application for registration of an indigenous land use agreement which, it appears, is designed to give effect to a settlement, or at least a proposed settlement, between the State of Western Australia and the Noongar people of all extant Noongar native title determination applications relating to Perth and the remainder of the south-west region of Western Australia.
Having had the benefit of written submissions filed on behalf of the second, third and fourth defendants, and of a draft proposed special case filed on behalf of the plaintiff in advance of the hearing, and having this morning heard counsel for the plaintiff and counsel for the second, third and fourth defendants, I have concluded in each proceeding that the matter should be remitted to the Federal Court of Australia.
In brief substance, my reasons are as follows. First, although I am persuaded that each proceeding raises an important question as to the correct construction of s 24CD(2)(a) of the Act, it does not appear to me that there is any sufficient reason why that question cannot be resolved by the Federal Court. Admittedly, the decision of Justice Reeves in QGC Proprietary Limited v Bygrave (No 2) [2010] FCA 1019; (2010) 189 FCR 412 is opposed to the construction of the section for which each plaintiff contends, but if the matter is remitted to the Federal Court it will be open to each plaintiff to seek to persuade, probably, another judge of that court, or, preferably, a Full Court, to depart from Justice Reeves’ reasoning. If there is later an application for special leave to appeal from the decision of the Federal Court to this Court, this Court will have the signal benefit of the Federal Court’s consideration of the issues.
Secondly, despite the submissions advanced by counsel for the plaintiff, I consider that it is at least possible, if not probable, that the correct construction of s 24CD is, to a considerable extent, informed by other interlocking provisions and comparable provisions of the Act and that the Federal Court’s experience with the Act would be of considerable benefit in formulating and informing the considerations which lead to the correct construction of s 24CD.
Thirdly, although I am persuaded that there may be some degree of prejudice to the plaintiffs in any further delay in the determination of the issue, it is some six years since the decision in QGC Proprietary Limited and, in any event, I think it likely that the matter could proceed to a hearing before the Full Federal Court, especially as it appears to be the case that the parties are prepared to agree a special case for that purpose, with greater speed than the matter could be heard in this Court given the current workload of the Court.
Finally, although it is plain that those who represent the plaintiff have done a considerable amount and would, in all probability, do a great deal more to agree facts necessary for the determination of the issue, it is said by counsel on behalf of the second defendant that it is not clear that the concessions which counsel for the plaintiff has signalled the plaintiff would be prepared to make go as far as would be necessary to conclude a point which is said to be based upon s 251A of the Act as somehow informing the construction of s 24CD.
It is not immediately apparent to me why that should be so but, for the purposes of the exercise, I am bound to accept the submission advanced by Senior Counsel that it is possible and therefore I treat it as a relevant consideration.
In the result, I shall order pursuant to s 44 of the Judiciary Act 1903 (Cth) that each of these matters be remitted to the Federal Court of Australia and that all further proceedings in each matter shall be as directed by that court. Ladies and gentlemen, is anything further required?
MR MERKEL: Would your Honour reserve costs?
HIS HONOUR: I take it that is agreed to?
MR QUINLAN: If your Honour pleases.
HIS HONOUR: Thank you. I shall make an order for costs.
MR SOFRONOFF: Yes, your Honour.
HIS HONOUR: The costs of the proceeding thus far be reserved. I am grateful to counsel for their assistance. Thank you. I will adjourn now.
AT 12.26 PM THE MATTER WAS CONCLUDED
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