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Federal Court of Australia (Cooper J)
5 March 1999
Real property – estate or interest in land – whether applicant has a common law right to enjoy rights in relation to the islands – whether s 223 Native Title Act 1993 (Cth) operates in a discriminatory way and is inconsistent with the Racial Discrimination Act 1975 (Cth) – whether serious question to be tried
The applicant sought declaratory orders that he held title to two islands, Deliverance and Kerr Islands, in the Torres Strait, by succession from a person named Harald August Fritz (also known as 'German Harry'). He also sought an interlocutory injunction against the respondents, who included the Torres Strait Regional Authority (TSRA), the Boigu Island People, the Badu Island People (who had lodged a native title claim over the islands) and the State of Queensland, to prevent them from interfering with the rights asserted in the application.
The applicant claimed:
1) that the two islands had not been properly annexed to Queensland;
2) that s 223 of the Native Title Act 1993 (Cth) and s 14(1) of the Torres Strait Islander Land Act 1991 (Qld) operated in a discriminatory way and were inconsistent with the Racial Discrimination Act 1975 (Cth);
3) that he had common law rights to enjoy the same kind of rights to the islands (native title rights) as the respondents enjoy;
4) that the respondents should permit him to have access to the islands to care for coconut palms, search for the remains of his ancestor, and to re-bury those remains; and
5) damages for interference with the rights asserted.
1. Because of concerns about the power of Queen Victoria to annex islands in the Torres Strait, including the subject islands, Letters Patent issued in 1878 were issued on the condition that the islands were not annexed without the consent of the Queensland legislature. This consent was given in the Queensland Coast Islands Act 1879 (Qld) which included the subject islands. In any event, the concern about the validity of the annexation was dispelled in Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1, and the Colonial Boundaries Act 1895 (Imp) had confirmed the boundaries at the date of, and in accordance with the relevant Letters Patent.
2. The assertion that the provisions of the Native Title Act 1993 (Cth) operated in a discriminatory way had been rejected by the Full Federal Court in Hollier v Registrar of the National Native Title Tribunal (1998) 82 FCR 186, relying on Western Australia v The Commonwealth (the Native Title Act case) [1995] HCA 47; (1995) 183 CLR 373. The question about the operation of the Torres Strait Islander Land Act 1991 (Qld) was purely hypothetical as there was no evidence of a claim to the islands under that Act.
3. The claim to enjoy native title rights was misconceived, as the common law only recognises rights held by the indigenous inhabitants of Australia prior to the acquisition of British sovereignty. Hollier v Registrar of the National Native Title Tribunal (1998) 82 FCR 186, applied.
4. Neither the TSRA, nor the Boigu Island People, held any estate or interest in the islands claimed. The proper respondent was the Corporation of the Director of Aboriginal and Islanders Advancement as trustee.
5. The claims for damages had no reasonable prospects of success. Even if there was some arguable basis that Harald August Fritz held rights in the islands, there was no evidence that the applicant had succeeded to those rights.
6. Because there was no arguable basis on which the application could succeed even if the proper respondent was joined, the application was dismissed.
Cooper J:
The applicant claims title to the lands comprising Deliverance and Kerr Islands in the Arafura Sea. He claims the land by succession, ultimately from a Harold August Fritz.
The first respondent is a statutory corporation set up under s 142 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). Its function, as set out in ss 142A and 142B, is principally to act in the interests of Torres Strait Islanders living in the Torres Strait area and to formulate, develop and implement programs to advance Torres Strait Islander interests and to preserve their cultural material. The Authority also acts as adviser to the relevant Minister.
The second respondent is sued in a representative capacity on behalf of the Boigu Island People. He was apparently joined as a party because the Boigu Island Council will not acknowledge the validity of the applicant's claim. The Boigu Island People and the Boigu Island Council, so far as the material discloses, make no claim to the islands.
The third respondent is sued on behalf of the Badu Island People, who have made a claim under The Native Title Act 1993 (Cth) in respect of the islands.
The fourth respondent is a department of government of the State of Queensland.
The applicant seeks the following relief :
1. A Declaration that the effect of the annexation of August 1879 did not vest in the Crown in this matter, absolute ownership of, legal possession of and exclusive power to confer title to, all land on Deliverance and Kerr islands.
2. A Declaration that the s 223 of the National Native Title Act 1993 and s 14(1) of the Torres Strait Island Land Act 1991 (Qld) operates discriminatory [sic] against the Applicant in this matter in that those said Acts are inconsistent with ss 9, 10 & 11 of the Racial Discrimination Act 1975 (Cth) and Article 5(d) of the International Convention on the Elimination of All Forms of Racial Discrimination; whereby they restrict, exclude, prejudice the equal rights and interests of the Applicant because of his race and descent.
3. A Declaration that the Applicant has a common law right to enjoy the same kind of rights in relation to Deliverance and Kerr Islands and their surrounding waters, as those which the said Respondents enjoy.
4. And or in the alternative, an Order directing the first and second Respondents to comply with the provisions of the Racial Discrimination Act and to permit the Applicant unconditional access to Deliverance Island, to care for his coconut palms, to locate the remains of his ancestor and to subsequently re-bury his ancestor and conduct a traditional spirit releasing ceremony.
5. Damages: for $300 000 [sic] against the First and Second Respondent in respect of -
(a) loss of the Applicant's rights and interests to enjoy the same kind of rights in relation to Deliverance and Kerr Islands and their surrounding waters, as those which the said Respondents enjoy.
(b) loss of dignity by the said discrimination and humiliation and injury to the applicant's feelings.
6. Compensation to be paid to the Applicant by the Fourth Respondent in respect of:
(a) negligence in failing to give adequate regard to the nature and extent of the benefit or detriment that the said negligence may effect the Applicant in both his personal and commercial capacity.
7 .Costs.
8. Any such other relief as the Honourable Court thinks just.
The applicant sought the following interlocutory relief :
1. An interim order directing that the First Respondent accept service by way of A/R Registered Mail of all documents, and on behalf of the Second and Third Respondents.
2. An interim injunction that the Queensland Department of Natural Resources be restrained from making any decision either under the Torres Strait Islander Land Act 1991, nor any other Queensland Act as to the sale, lease, public auction or otherwise granting of freehold title to any person identifying themselves as Torres Strait Islanders or otherwise, or Island Community Council; concerning Deliverance and Kerr Islands until this matter is finalized by the Courts.
3. An interim injunction that the first to the fourth Respondents whether by himself, herself, itself or themselves or its, his, her or their servants, members or agents or any of them or otherwise be enjoined and restrained from hindering, preventing or attempting to hinder or prevent the Applicant from access to Deliverance and Kerr islands:
(a) to care for his property, namely the coconut palms planted there by his ancestor, his ancestor's partner and himself;
(b) to locate the remains of his ancestor and exhume those remains; and
(c) to subsequently re-bury his ancestor and conduct a traditional spirit releasing ceremony.
4. An interim injunction that the first to the fourth Respondents whether by himself, herself, itself or themselves or its, his, her or their servants, members or agents or any of them or otherwise be enjoined and restrained from interfering in any way with the grave-site and or including the remains of Mr Harald August Fritz, (commonly known as German Harry) buried on Deliverance Island.
5. An interim order, or in the alternative, an undertaking from the national Native Title Tribunal to restrain from any determination what so ever with respect to Native Title Claim lodged by the Third Respondents until this matter is resolved.
The first and second respondents seek that they be struck out as parties to the proceedings or that the proceedings be stayed against them on the basis that they are not properly parties to the litigation and have no interest in the subject matter of the litigation. Alternatively, they seek security for costs. The third respondent has not appeared. The fourth respondent seeks to have the proceedings dismissed as disclosing no cause of action or to be struck out as a party, it having no interest in the subject matter of this litigation. Alternatively, it seeks security for costs.
The applicant contends that these two islands were not annexed to Queensland in 1879. He bases this contention on an opinion given to the Marquess of Ripon by the Law Officers to the Colonial Office. In a report dated 27 February 1895, they expressed the opinion that islands in the Torres Strait annexed to the Colony of Queensland by Letters Patent of 30 May 1872 and 10 October 1878 were not annexed to, and did not form part of, the Colony of Queensland. In order to overcome the doubts arising from that opinion the Colonial Boundaries Act 1895 (Imp) ('the 1895 Act') was passed. By s 1 of the 1895 Act, it was provided :-
1 (1) Where the boundaries of a colony have, either before or after the passing of this Act, been altered by Her Majesty the Queen by Order in Council or letters patent the boundaries as so altered shall be, and be deemed to have been from the date of the alteration, the boundaries of the Colony.
(2) Provided that the consent of a self-governing colony shall be required for the alteration of the boundaries thereof.
(3) In this Act `self-governing colony' means any of the colonies specified in the Schedule to this Act.
The Colony of Queensland was specified in the Schedule.
Because of concerns as to the power of Queen Victoria, without the assent of the Queensland legislature, to annex the islands the subject of the Letters Patent of 1872 and 1878, the last of the Letters Patent was issued upon the condition that the islands were not annexed without the consent of the Queensland legislature. That consent is contained in the Queensland Coast Islands Act 1879 (Qld). That Act provided, in s 1, that the islands described in the Schedule to the Act, upon a date to be proclaimed '... become part of the Colony of Queensland and shall be and become subject to the laws in force therein.' The islands were annexed from 1 August 1879 by proclamation published in the Gazette of 21 July 1879. The islands within the schedule became part of the colony of Queensland: R v Gomez (1880) 5 QSCR 189 FC at 191. The islands the subject of the present proceedings were covered by the schedule to the Act.
The opinion of the law officers on which the applicant relies was found to be erroneous and rejected by the High Court in Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1 at 14, 21, 28. In any event, the effect of the 1895 Act was sufficient to remove any doubt and to confirm the boundaries as at the date of, and in accordance with, the relevant Letters Patent: Wacando at 16, 24, 28, 30.
The applicant's claim to a declaration that the islands in question were not annexed in 1879 on the grounds he contends has no prospect of success at trial and will fail.
The applicant's contention that s 223 of the Native Title Act 1993 (Cth) operates in a discriminatory way and is inconsistent with the Racial Discrimination Act 1975 (Cth) has been considered and rejected by a Full Court of this Court (Black CJ, Ryan and Goldberg JJ) in Hollier v Registrar of the National Native Title Tribunal and Ors (1998) 82 FCR 186. In finding that the claim before it was without merit the Full Court relied upon, in part, the joint judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ in Western Australia v The Commonwealth (the Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373, where their Honours dealt with the relationship between the two Acts and said (at 483-484):
Western Australia sought to use s 7(1) as the vehicle for destruction of the substantive provisions of the Native Title Act relating to future acts. The Native Title Act was said to discriminate in favour of Aborigines and Torres Strait Islanders and thus to offend the Racial Discrimination Act. As s 7(1) preserved the operation of the Racial Discrimination Act, so the argument ran, the offending provisions of the Native Title Act 'must be regarded as inoperative'. The argument encounters considerable obstacles. In the first place, it is not easy to detect any inconsistency between the Native Title Act and the Racial Discrimination Act. The Native Title Act provides the mechanism for regulating the competing rights and obligations of those who are concerned to exercise, resist, extinguish or impair the rights and interests of the holders of native title. In regulating those competing rights and obligations, the Native Title Act adopts the legal rights and interests of persons holding other forms of title as the benchmarks for the treatment of the holders of native title. But if there were any discrepancy in the operation of the two Acts, the Native Title Act can be regarded either as a special measure under s 8 of the Racial Discrimination Act or as a law which, though it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act or the International Convention on the Elimination of All Forms of Discrimination. And further, even if the Native Title Act contains provisions inconsistent with the Racial Discrimination Act, both Acts emanate from the same legislature and must be construed so as to avoid absurdity and to give each of the provisions a scope for operation. The general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operation. But it is only to that extent that, having regard to s 7(1), the Native Title Act could be construed as affecting the operation of the Racial Discrimination Act.
Section 7(1) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act. The Native Title Act prescribes specific rules governing the adjustment of rights and obligations over land subject to native title and s 7(1) cannot be construed as intending to nullify those provisions.
Any question as to the operation of the Torres Strait Islander Land Act 1991 (Qld) is purely hypothetical. There is nothing in the material to indicate that the respondents or any of them has made a claim to the islands under that Act and whether the islands are claimable lands under s 15 of that Act. The Court will not entertain hypothetical questions for want of jurisdiction to entertain the same (In Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 264 - 267) or as a matter of discretion (Luna Park Ltd v The Commonwealth [1923] HCA 49; (1923) 32 CLR 596 at 600- 601). The applicant's claim to the second declaration sought has no prospect of success and will fail.
The claim for a declaration as against the respondents that the applicant has a common law right to enjoy the same kinds of rights to the islands and their surrounding waters as the respondents enjoy, is based on a misconception as to the relationship between native title and the common law. The same misconception arose in Hollier. In Hollier the applicant was seeking protection for possessory or proprietary rights he claimed to Deal Island in Bass Strait, which rights he said were analogous to the rights recognised under native title provisions. Goldberg J, in whose judgment the other members of the court agreed, in holding that Hollier did not hold and could not acquire native title rights or rights analogous to them, said (at 29) :-
... As the learned Deputy President said, neither the common law nor the Act confers native title on any person but rather recognises it where it exists. It is a form of title stemming from rights enjoyed by the indigenous inhabitants of Australia prior to the assertion of British sovereignty. It was only the indigenous inhabitants of Australia who had such rights. The common law doctrine of native title and the Act do not create those rights but simply recognise the historical facts of their existence: ss 3 and 10; Mabo v State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 58 - 60, 70, 88, 109-110; Kanak v National Native Title Tribunal (1995) 61 FCR 103, 131.
The applicant in the present case is in the same position as Mr Hollier, notwithstanding his claim to succession to the interests of Harald August Fritz.
There are further difficulties confronting the applicant in seeking the third declaration and in seeking orders against the first and second respondent requiring that they permit the applicant unrestricted access to the islands for the stated purposes. Neither the first nor second respondent claim for themselves any interest in, possession of, or right to control access to either of the islands. In fact the islands were dealt with under the Land Act 1962 (Qld) by Order in Council of 3 August 1978. On that day it was ordered that the islands, together with other islands in the Torres Land Agents District, be reserved and set apart for departmental and official purposes and vested in and placed under the control of the Corporation of the Director of Aboriginal and Islanders Advancement as trustee. So far as the materials disclose, the land remains in trust under the control of the Corporation or its successor. The materials also suggest that the islands are under the local government control of the Boigu Island Council, a body corporate established under s 51 of the Community Services (Torres Strait) Act 1984 (Qld). It is the trustee whose title to the islands the applicant challenges and who has the right to grant or refuse permission to go on to the islands. If the claims give rise to any serious question to be tried, it would be the trustee who was the proper contradictor.
The claim for damages against the first and second respondents has no reasonable prospect of success and is embarrassing. Those respondents, on the material before the Court, did nothing which caused the applicant to lose any 'rights or interests to enjoy Deliverance and Kerr Islands'. They were not in any position to grant, withhold, withdraw or extinguish any rights or interests of the applicant in or to the islands. Similarly, there is no arguable case of negligence against the fourth respondent entitling the applicant to compensation in his dealings with it seeking to obtain a lease over the islands to establish an aquaculture business.
Even if there was some arguable basis that Harald August Fritz acquired an interest in or rights of enjoyment of these two islands, the material discloses no basis in law that the applicant is entitled to those interests or rights or that they vested in him.
The material includes a letter from Reginald Charles Hockings, who was the holder of a Special Lease Number 1531 over Deliverance Island issued in 1911 under the Land Act, to the Protector of Aboriginals at Thursday Island dated 22 December 1924. That letter records the death of Harald August Fritz on 16 November 1924 and includes the deceased's last Will and Testament. That document, or a copy of it, is not contained in the material and there is no evidence of its contents. To establish a right to succession, the applicant relies upon an affidavit of his father, Mr Leslie Fritz, who claims to have been given the islands by his father who had assured Harald August Fritz 'that he would ensure that the inheritance of those two islands' went to the present applicant's father. He deposes that 'I passed my inheritance of Deliverance and Kerr Islands to my son when he demonstrated to me that he believed that Deliverance Island had accepted him.' Mr Leslie Fritz lists ten immediate aunts and uncles, the father of whom was one of four brothers of Harald August Fritz. It is assumed that Harald August Fritz was not survived by a spouse or any children. If the line of succession to any interest in the two islands is not through testamentary disposition contained in the last Will and Testament, no attempt has been made to demonstrate why other lineal descendants are excluded or did not take in priority on an intestacy, or that such rights, if any, as Harald August Fritz had to either of the islands did not pass to the Crown as bona vacantia. As to the difficulties confronting the applicant's claim to the beneficial interest as either a real property interest or as personal property passing on an intestacy in 1924, see Bailey 'The Law of Wills' Pitman (1973) at 31-35; Re Bonner (Deceased) [1963] QdR 488. How Mr Leslie Fritz effectively disposed in law of his interest, if any, in the islands during his lifetime to the present applicant is not explained. There is no basis to conclude that there is any likelihood that the applicant will ever establish an entitlement at law to the estate of Harald August Fritz or any part of it by succession or disposition inter vivos.
In my view, the applicant has failed to show that there is a serious question to be tried which would entitle him to the relief claimed in the principal application. There being no serious question to be tried, interlocutory relief is refused.
Because there is no serious question to be tried, no question of security for costs remains. Each of the first, second and fourth respondents seek orders dismissing the proceedings against them or seek to be dismissed as a party. The proceedings should not be allowed to continue further. The proceedings should be dismissed against all respondents.
In my view, the applicant's claim, as formulated, is self-evidently without merit and will fail and it cannot be cured by amendment or by the addition of present title holder of the islands. In short, there is no real question to be tried: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.
The application should be dismissed with costs.
Order:
1) The applicant's application for declaratory and other orders, including interlocutory orders, be dismissed.
2) The applicant pay the respondents' costs of and incidental to the proceedings, including reserved costs, to be taxed if not agreed.
Applicant in Person: Dennis Melvin Fritz
Counsel for the First and Second Respondents: E Ford
Solicitors for the First and Second Respondents: Torres Strait Regional Authority
No appearance for the Third Respondent
Counsel for the Fourth Respondent: M O Plunkett
Solicitors for the Fourth Respondent: Crown Solicitor
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1999/29.html