Home | Databases | WorldLII | Search | Feedback Australian Indigenous Law Reporter

Editors --- "Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v State of Queensland - Case Summary" [2001] AUIndigLawRpr 17; (2001) 6(2) Australian Indigenous Law Reporter 39

Court and Tribunal Decisions - Australia

Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v State of Queensland

Federal Court of Australia (French, Merkel, Dowsett JJ)

11 April 2001

[2001] FCA 414

Native title — registered native title claimants — procedural rights under the future act provisions — what is required for an act to be characterised as a future act — whether proof of the existence of native title is required before a declaration of invalidity will be made — whether the status of being a registered native title claimant is sufficient for a declaration of invalidity — whether decision is final or interlocutory — whether the Federal Court has jurisdiction to determine the validity of an act under State law — whether standing to bring claim under State law — validity of Restricted Buoy Mooring Authority under the Transport Operation (Marine Safety) Regulation 1995 (Qld)

Costs — whether costs should follow the event

Facts:

On 18 March 1995, the Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples (the native title claim group) made an application for a determination of native title over an area of sea country in the Gulf of Carpentaria. The application was subsequently registered by the Registrar of the National Native Title Tribunal, and the native title claim group became registered native title claimants under the Native Title Act 1993 (Cth) (NTA).

On 6 August 1999 the Acting Regional Harbour Master (Cairns) issued a Restricted Buoy Mooring Authority (the Authority) under the Transport Operation (Marine Safety) Regulation 1995 (Qld) to Pasminco. The Authority purported to approve Pasminco establishing a buoy mooring within the area subject to the native title determination application, for the purpose of allowing a vessel owned by Pasminco access to a safe mooring during cyclones.

No notice of the proposal to issue the Authority was given to the native title claim group.

The native title claim group challenged the validity of the Authority by filing a motion in the native title determination proceedings, seeking a declaration that the Authority was invalid, and final injunctive relief. The relief was sought primarily on the basis of non-compliance with the future act provisions of the NTA, but also for non-compliance with the laws of Queensland governing the issue of such authorities.

The native title claim group relied solely on being the registered claimants of the native title rights and interests specified in their claim as giving them statutory procedural rights in the NTA. They did not seek to demonstrate even an arguable case that they were native title holders. They submitted that their procedural rights under the NTA, including the right to be notified, gave rise to an entitlement to final and declaratory relief. No interlocutory orders were sought and no affidavits or oral evidence concerning native title were relied on.

In substance, the trial judge held that:

1. The existence of statutory procedures did not impose on Queensland or Pasminco any duty or obligation to do anything or to follow any particular procedure in doing the act. Thus no injunction of declaratory relief would lie to enforce Queensland or Pasminco to take those procedural steps for the benefit of the native title claim group.
2. Registration of the native title application did not prove to a requisite degree the necessary factual circumstances to sustain the final relief claimed on the basis of a right to protect and enforce native title in the proposed site.
3. Failure to prove up the requisite factual circumstances meant that the native title claim group failed to prove that the laying of the buoy mooring was a threatened tortious act entitling them to injunctive or declaratory relief against Pasminco, and also that it would be a future act.
4. The question of compliance with State law did not raise matters intimately related to the issue of whether the acts complained of were future acts under the NTA. The enforcement of the State law was a disparate and independent matter and did not fall within the accrued jurisdiction of the Federal Court.
5. There was no reason why costs should not follow the event.
The native title claim group sought leave to appeal.

Held:

1. Per French, Dowsett and Merkel JJ: The orders of the trial judge were final orders as they finally disposed of the matter in controversy. Therefore, the native title claim groups are entitled to appeal as of right.

2. Per French and Dowsett JJ: The claimed entitlement to procedural rights with respect to the Authority, which are created by the NTA, is a claim arising under that Act and is within the Court’s jurisdiction under

s 213(2). Re McJannet; Ex Parte Australian Workers’ Union of Employees, Queensland [No 2] [1997] HCA 40; (1997) 189 CLR 654 applied.

3. Per French, Dowsett and Merkel JJ: Characterisation of an act as a future act is critical to the application of the future act provisions of the NTA.

4. Per French and Dowsett JJ, Merkel J agreeing: A future act is an act that affects native title, not an act that might affect native title. The Authority is only capable of being a future act if the native title claim group establishes that it affects native title.

5. Per French, Dowsett and Merkel JJ: The native title claim group cannot enforce the procedural rights under the future act provisions without establishing the existence of native title rights and interests.

6. Per French and Dowsett JJ: Registration of a native title application is not sufficient to establish the existence of native title. It does not put the question of native title beyond debate on an injunction application. An applicant for a final injunction must demonstrate that he or she has native title. Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 followed.

7. Per French and Dowsett JJ, obiter: Non compliance with the procedural rights set out in the future act provisions of the NTA does not lead to the invalidity of the future act. Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 applied.

8. Per Merkel and Dowsett JJ, French J contra: The arguments that the Authority is invalid due to the failure to follow the procedures in the future act provisions of the NTA, and due to the questions arising under the state legislation are inseparable. They arise out of the same facts. No question of procedural rights will arise if the argument concerning the state law questions is unsuccessful. The state law questions are within the jurisdiction of the Court. Re Wakim; Ex Parte McNally [1999] HCA 27; (1999) 198 CLR 511 applied; Fencott v Miller (1982-1983) 152 CLR 570 considered.

9. Per Dowsett J, Merkel J agreeing: The native title claim group has not demonstrated any interest which may be affected by the issue of the Authority or any act pursuant thereto. They do not have standing to pursue the claim of validity of the Authority at state law.

10. Per Dowsett J, French and Merkel JJ agreeing: The Authority is not invalid at state law.

11. Per Dowsett J, French J agreeing: The limitation on the Court’s power to order costs set out in s 85A NTA does not apply to proceedings pursuant to s 213(2), unless a determination of native title is necessary as part of those proceedings. The limitation only applies to matters arising under Pt 3 of the NTA. The trial judge had not erred in ordering that costs follow the event. Brownley v Western Australia [1999] FCA 1431; (1999) 167 ALR 170 considered.

The parties were given an opportunity to make further submissions as to the applicability of s 85A to the proceedings.