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Wilson v Anderson
Supreme Court of NSW
Justice Levine
20 January 1999.
by Patricia Lane
Since the commencement of the Native Title Act 1993 (Cth) (‘the NTA’) there have been calls for speedy clarification of whether particular tenures are subject to native title. In the 1998 amendments to the NTA, it was confirmed that a large number of tenures extinguish native title. These are set out in the Schedule to the Act. However, some parties to native title applications are still seeking judicial determination of extinguishment in relation to tenures which were not included in the Schedule. Requests to the Federal Court, and the High Court, to have the issue of extinguishment determined as a preliminary question of law is one mechanism by which those parties have sought to achieve this.
The High Court has resisted this pressure to decide such questions outside the statutory scheme for determining native title. In North Ganalanja Aboriginal Corporation v State of Queensland,[1] the majority of the Court said that:
It is no doubt convenient in one sense to have a speedy settlement of contested and critical questions of law but such questions can be effectively settled only by judicial declaration in the determination of issues joined in litigation.
The Court’s subsequent decision in Wik Peoples v Queensland[2] further emphasised its reluctance to decide conclusive issues such as extinguishment in isolation from the factual issues raised by an application.
The preamble to the NTA provides for a scheme of mediation that is intended to seek to resolve questions about native title ‘if possible, ... by conciliation, and if not, in a manner that has due regard to their unique character’. Since the 1998 amendments, applications must be filed in the Federal Court and are then referred to the NNTT for mediation.
Section 81 of the NTA provides that ‘the Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.’ Section 213 of the NTA states that where it is necessary to make a determination of native title in relation to any matter or proceeding before the Federal Court, that determination must be made in accordance with the procedures in the NTA, and that ‘subject to this Act’ the Federal Court has jurisdiction in matters arising under it. The NTA also provides that ‘native title is recognised, and protected, in accordance with this Act’ (s10) and that ‘native title is not able to be extinguished contrary to this Act’ (s11). Does the combined effect of these provisions constitute a statutory scheme for the determination of native title that excludes the jurisdiction of other courts to decide questions of the existence or extinguishment of native title?
In Wilson v Anderson the Supreme Court of NSW considered the question of whether the Federal Court’s jurisdiction over native title matters arising under the NTA prevented other courts from deciding questions about native title in non-NTA proceedings.
Mr Wilson is the holder of a lease under the Western Lands Act 1901 (NSW) (‘the WLA’). The land is, with others, the subject of an application for native title that was lodged in 1996. When public notice of this application was given, it attracted over 800 parties to join as defendants. In April 1998, Mr Wilson took proceedings in the Supreme Court for a declaration that native title over his lease had been extinguished. He contended that the extinguishment took place either under the WLA itself or the specific terms of the grant made to him under that Act. Mr Anderson, the applicant for native title, was the first defendant. The NSW Aboriginal Land Council (‘the NSWALC’) was subsequently joined as the second defendant.
The NSWALC moved for a stay of Mr Wilson’s proceedings on the grounds either that the Court lacked jurisdiction to decide the question of extinguishment or that in its discretion the Court ought to leave the determination of that question to the Federal Court. The Land Council relied on observations by the High Court in State of Western Australia v The Commonwealth[3] that ‘s11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code.’ It argued that the statutory scheme provided for in the NTA was exclusive and could be subverted by applications, brought outside the Act, in which the primary question for determination was whether or not native title continued to exist.
Although the NTA confers exclusive jurisdiction on the Federal Court in relation to applications made under it, the legislation is silent on other applications in which the issue of native title might arise. For example, in Mason v Tritton,[4] the NSW Court of Appeal considered a defence to unlicensed abalone fishing based on an assertion of native title rights to gather abalone. Further examples may be found in other State courts.[5] The position of NSWALC and Mr Anderson was not that the Supreme Court lacked jurisdiction to consider any question of native title at all. Rather, they argued that in proceedings where the only question at issue was the existence of native title, the matter must be brought in the Federal Court, where the determination of the question would be subject to the provisions and procedures of the NTA. Both defendants relied on the existence of a comprehensive statutory scheme as evidence of Parliament’s intention that no court other than the Federal Court could exercise jurisdiction to determine the existence of native title where a native title application was on foot.
Justice Levine considered that the several cases in which the Federal Court has made obiter statements about the nature of its jurisdiction under the NTA did not provide conclusive guidance. In both Djiagween v Douglas[6] and Wik Peoples v Queensland ,[7] the Court had to deal with proceedings that had been commenced prior to the enactment of the NTA. In Yuin Council of Elders Aboriginal Corporation v State of NSW,[8] Justice Lockhart doubted that the Federal Court had exclusive jurisdiction other than in relation to applications made under the NTA. However, in the present case, proceedings had already commenced under the NTA.
Counsel for Mr Anderson submitted that by enacting ss81 and 213 of the NTA, Parliament had exhibited an intention to oust the jurisdiction of courts other than the Federal Court in relation to matters arising under the NTA. He referred in particular to a statement by Justice Talbot of the Land and Environment Court:
This Court is clearly ill-equipped to deal with the evidentiary requirements for the establishment of native title under the provisions of the NTAct. It is not at present constituted in a way which facilitates holding the type of inquiries foreshadowed in the NTAct. The procedures stipulated for the NNTT recognise the peculiar nature of the evidence which may be relied upon to establish the existence of native title.
...
The procedural rights conferred upon the holders of native title under the NTAct are statutory, not common law, rights. The applicants’ claim is that they are the holders of a form of native title recognised and protected by the NTAct and are thereby entitled to assert statutory procedural rights conferred by the Act. The claim should be pursued in the manner prescribed by the NTAct. This Court should not circumvent the procedures laid down by the NTAct and avoid the very forum which the Commonwealth legislature has said is to have jurisdiction to make determinations of native title.[9]
Counsel for Mr Wilson opposed the stay by arguing that the jurisdiction to make orders under s23 of the Supreme Court Act 1970 (NSW) had not been ousted by the NTA. As well as an absence of clear and unambiguous words to oust the Supreme Court’s jurisdiction, the plaintiff relied upon the general public importance of having the question of extinguishment settled in a timely manner, as well as specific difficulties such as uncertainty about whether certain uses of the land would be permitted if native title was found to exist. The plaintiff was less than complimentary about the mediation processes of the NNTT, referring to them variously as ‘Byzantine’ and ‘a maelstrom’, arguing that as a matter of discretion the Court ought to relieve the plaintiff from the disadvantage of waiting until the conclusion of a lengthy mediation process before his rights would finally be determined.
Justice Levine held that: the Supreme Court did have jurisdiction to hear the application for a declaration of extinguishment; the exclusive jurisdiction of the Federal Court was confined to claims made under the NTA and that the NTA neither expressly nor impliedly ousted the jurisdiction of the Supreme Court. His Honour accepted the plaintiff’s submission that because the jurisdiction conferred on the Federal Court by s81 was exclusive only in specific circumstances, to oust the Supreme Court’s jurisdiction under s23 would, following Coco v The Queen,[10] have required ‘unmistakable and unambiguous language’. His Honour rejected the remarks of Justice Talbot in the Donnelly case for two reasons. First, because he could find no implied ouster and secondly because he considered them to be inconsistent with the observation of Priestley JA in Mason v Tritton that the Supreme Court would have jurisdiction to deal with matters in which native title rights were asserted, even though the structures established under the NTA suggested that the best way to determine the existence of native title would be under that statutory scheme.[11]
In relation to the exercise of discretion, Justice Levine also paid particular regard to the decision in Mason v Tritton. One important factor in the present case was that concurrent processes under the NTA were on foot. Justice Levine accepted an argument put by the first defendant that the Federal Court could resolve the NTA proceedings with a finding that native title existed. If, at the same time, the Supreme Court were to find that native title had been extinguished, the plaintiff might then rely on the Supreme Court decision to restrain any assertion of native title rights under the decision of the Federal Court, throwing the two decisions directly into opposition.
His Honour also considered the form in which the application for relief had been framed. The plaintiff had claimed a declaration only in regard to the extinguishment or suspension of native title rights on his own lease. In support of this application, the plaintiff provided evidence of the lease itself, but none concerning the nature of any native title that might exist. Although it was submitted that the lease was typical of those granted under the WLA, His Honour found insufficient evidence to justify deciding the question on the basis of its application beyond the parties or its significance in other proceedings. The plaintiff did not seek to invoke any procedures to test the issue of extinguishment by a non-claimant application (a course which had been open to him before the lodgement of the main native title claim). Further, the plaintiff had waited about one year after receiving notification of the acceptance of the application in the NNTT before commencing the declaration proceedings in the Supreme Court. His Honour was not persuaded that the plaintiff would be prejudiced or disadvantaged by prosecution of the proceedings in the Federal Court.
In the result, the Supreme Court proceedings were stayed. The decision covered some technical points, including the possibility that portions of the NTA might be invalid,[12] but His Honour did not find it necessary to deal with those arguments to reach his conclusion.
The decision indicates that it may be difficult to persuade Supreme Courts to deal with a primary question about the extinguishment of native title where proceedings under the NTA are on foot. The provisions in the amended Native Title Act for strike out applications (s84C) or for orders that mediation not take place (s86B) will provide an opportunity for parties to raise preliminary issues in the Federal Court. Whether the Court will decide questions of extinguishment before exhausting the possibilities for mediation remains to be seen.
Patricia Lane is a barrister and part-time Member of the National Native Title Tribunal.
[3] [1995] HCA 47; (1995) 183 CLR 373.
[5] See Re Yanner; ex parte Eaton (unreported, Queensland Court of Appeal, 28 February 1998) in which a similar defence was raised to a prosecution under the Fauna Conservation Act 1974 (Qld) Cf Derschaw v Sutton (1997) 17 WAR 419. Cf Warren Walter Coatsworth, ‘Considering Crocodiles in the Queensland Court of Appeal: Eaton v Yanner; ex parte Eaton’ [1998] IndigLawB 78; (1998) 4(15) Indigenous Law Bulletin 20; Lachlan Kennedy, ‘Exercising Native Title Hunting Rights: Derschaw v Sutton’, (1996) 3(85) Indigenous Law Bulletin 31; David Ritter, ‘Native title and the Fisheries Act 1905 (WA): Sutton v Derschaw, Clifton v Murphy’ (1995) 3(77) Indigenous Law Bulletin 18.
[6] [1994] FCA 951; (1994) 48 FCR 535. Cf Greg McIntyre, ‘Francis Djaigween & Ors v Malcolm Douglas trading as Broome Crocodile Park; the State of Western Australia Intervening’, (1994) 3(67) Indigenous Law Bulletin 16.
[7] [1994] FCA 967; (1994) 49 FCR 1.
[8] (1995) 60 FCR 501. Cf David Ritter, ‘Non-revival of native title in Bodalla: Yuin Council of Elders Aboriginal Corporation v State of NSW’, (1996) 3(78) Indigenous Law Bulletin 33.
[9] Donnelly & Mundine v Tenterfield Shire Council (Unreported, 2 June 1998).
[10] [1994] HCA 15; (1994) 179 CLR 427 at 437.
[11] Mason v Tritton (1994) 34 NSWLR 572 at 600.
[12] In Fourmile v Selpam Pty Ltd [1998] FCA 67; (1998) 152 ALR 294, the Full Federal Court held that the provisions of the NTA relating to the procedure for registering determinations by the NNTT (in that case, that native title did not exist) in the Federal Court, were invalid.
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