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North Ganalanja & Bindanggu Aboriginal Corporation for the Waayni People v Queensland & Ors
Full Bench of High Court
Unreported
Order – 8 February 1996
Judgement – 21 March 1996
Casenote by Lachlan Kennedy[1]
In this matter the High Court was presented with an opportunity to consider the question of the effect of Queensland pastoral leases on native title. Expectations were high that this case would further define the extent to which native title has survived (or has been extinguished) in Australia. It did not happen. The Court instead based its decision on procedural provisions in the Native Title Act 1993 (Cth) ('the NTA') relating to acceptance of claims by the National Native Title Tribunal ('the NNTT').
The Waanyi decision therefore does not have the significance many expected. It is nevertheless a confirmation that the Court is protective of the rights of native title claimants (and therefore native title holders) under the NTA. The Court's view of the role of the NNTT, and its understanding of significant concepts in the NTA, such as the threshold 'prima facie test' (which determines whether claims are accepted by the NNTT or not), will guide the NNTT in the short term. In the longer term the decision will be relevant to the Government's approach to amending procedural provisions of the NTA.
The applicants raised three points for consideration by the High Court. These were the validity of the procedures adopted by the NNTT when deciding to reject the Waanyi claim, the effect of Queensland pastoral leases on native title, and a question about Queensland's Constitutional power to extinguish native title.
The Court decided that it should consider the procedural question first. It found unanimously that the procedures used by the NNTT were not consistent with the NTA (for reasons which are discussed below), and that the NNTT should have accepted the application. Since, at the time of the High Court consideration of this appeal, the application had not been accepted by the NNTT, a majority of the Court (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ page 10, McHugh J page 49, Kirby J dissenting page 78) was of the view that there was no properly constituted proceeding which would have allowed the NNTT President to determine the pastoral leases question. The majority also held that lack of properly constituted proceedings also flawed the Full Federal Court's conclusion concerning pastoral leases in this matter (and, importantly, that its decision therefore does not provide any binding precedent on them). Further, it held that consideration of pastoral leases by the High Court would constitute an advisory opinion, and thus be beyond the Constitutional power of the Court.
Kirby J's dissent on this point was based on the view that so long as a proceeding involves the hearing and determination of an appeal from a judgment, decree, order or sentence of a designated court, judgment attaches to the High Court. At the same time, Kirby J was persuaded that although dealing with the pastoral lease question would not cure the procedural injustice done to the applicants, no substantive injustice would occur (page 78). The majority (pages 10-11), and in particular McHugh J (pages 43 and 51), were concerned that the procedural errors caused the applicants substantive injustice. In their view the failure of procedure meant the applicants lost the opportunity to have their claim mediated and perhaps agreed without resort to the Federal Court. McHugh J took a similar position on this point, noting (at page 43) that the NTA establishes special procedures for determining claims by conciliation and negotiation between interested parties (s26 and following). The procedures confer valuable rights on native title claimants who have a prima facie claim, including the right to protect their native title against future permissible acts, and they may also get a commercially beneficial settlement from their claim (under the right to negotiate provisions).
It follows from the decision in this matter that the Full Federal Court's prior decision on pastoral leases, and also Drummond J's decision in Wik Peoples v State of Queensland (Federal Court, 29 January 1996, unreported - see casenote in Vol 3, 78 Aboriginal Law Bulletin 28 [1996] ALB 9; 3(78)pg28), which followed the Full Federal Court's decision, are not binding in relation to the effect of pastoral leases on native title.
Upon receipt of a native title application, if the Registrar of the NNTT is of the opinion that the application is frivolous or vexatious, or that prima facie the claim cannot be made out, she must refer the application to the President (s63(2)). If the President is of the same opinion, he must so advise the applicant and give the applicant a reasonable opportunity to satisfy the President that a prima facie claim can be made out. If the applicant cannot satisfy the President that prima facie a claim can be made out, he must direct the Registrar to reject the claim (s63(3)(c)). If the claim is accepted, it is mediated by the NNTT. But if mediation is unsuccessful it is referred to the Federal Court for a determination (NTA ss71-74).
In the present case, the President formed a view that prima facie the applicants could not make out their case because he concluded that their title had been extinguished by a pastoral lease. This conclusion was based on his view that the decision in Mabo v Queensland (No. 2) ((1992) [1992] HCA 23; 175 CLR 1) establishes a principle that a lease granting rights of exclusive possession without reservations permitting access by Aboriginal people is inconsistent with the continuance of native title, and in general, extinguishes those rights. The President reached this conclusion on a point of law when exercising administrative powers (page 23).
The majority acknowledged that in some contexts the conferring of administrative power could require a person to decide doubtful or contested questions of law (page 23). But the NTA reserves to the Federal Court the jurisdiction to hear and determine opposed applications (ss74, 81, 84).
A consequence of the NNTT exercising a power to refuse a native title application is that applicants lose an opportunity to possibly successfully mediate their claim, or have it judicially determined (pages 24, 48). The Court considered that s63 (which establishes the prima facie test) does not authorise the administrative rejection of an application where, on the information in the application and the material accompanying it, a claim is 'fairly arguable' (page 24). If a direction is given by the President that the Registrar should reject a claim because of a ruling given on contested propositions of law that are fairly arguable, that direction is invalid (page 26). It follows that the NNTT must now accept any claim that is, on the law, 'fairly arguable'. Clearly, claims over pastoral leases could be 'fairly arguable'. However, lawyers are ingenious, and the Government must be wondering if there would ever be a native title claim which was not 'fairly arguable'.
An application for determination of native title must contain a description of the area over which native title is claimed, and all information known to the applicant about non-native title interests held in relation to the land (s62(1)(b)). The applicant must also swear an affidavit that the applicant believes that native title has not been extinguished in relation to the land subject to the claim. The NTA makes provision for the President to solicit further information from the applicants if he considers that the applicants have not made out a prima facie claim (s63(3)(a)). The question of whether the NNTT may seek information from any other sources at this stage is not explicitly dealt with by the NTA. In considering the Waanyi application, the President had sought, and then taken into account, facts provided by persons who, had the claim been accepted, would have become parties to the claim. This information supported arguments that the native title had been extinguished by pastoral leases.
The majority of the Court acknowledged that there are provisions in the NTA which confer on the Registrar or a Presidential member power to summon witnesses, to give evidence, or to produce documents (s65 and ssl55 to 159). However, the majority also found that the NTA makes no provision for persons other than applicants to have any right to be heard before a claim is accepted (page 19), although, as McHugh J noted in his dissent on this point (page 39), neither is there any provision preventing the President or the Registrar having regard to any other materials.
The majority were influenced by the consideration that, if the President could receive information from third parties, he would (as indeed he did on this occasion) have to give to the applicant an opportunity to respond, and thus his consideration of an administratively applied screening test would expand to become effectively a trial of the issues. The majority view was therefore that the Registrar and President, when considering an application for acceptance, are limited to considering the information and material contained in or accompanying the application (page 22). McHugh J (dissenting on this point at page 39 and following) considered that the NNTT is not limited to the material presented by an applicant with a claim, but a wide ranging enquiry into an application is beyond its power. Kirby J also took the view that the NNTT is not restricted in information to which it may have regard (page 64).
The view taken by the majority on the material the NNTT may use to screen claims, and its 'fairly arguable' approach to the prima facie test, means that a larger number of claims will be accepted by the NNTT than was the case previously. More claims in the system mean that more claimants will be able to benefit from the right to negotiate regime and will have the right to have their claims determined by the Federal Court. However, it also means greater costs for the NNTT in mediating claims and in supervising the right to negotiate regime (which all claimants get), and greater costs for the Federal Court in determining contested claims.
The previous Government, in response to the decision in Brandy v HREOC ((1995) [1995] HCA 10; 183 CLR 245) introduced legislation into Parliament to amend the NTA. That legislation would have removed the prima facie test from the acceptance procedure for native title claims. Claims instead would be made to the Federal Court where they might be struck out under that Court's normal procedures. The prima facie test was nevertheless still going to be administered by the NNTT as a threshold test for the purposes of registering claims. Only those claims which were registered would have the 'right to negotiate' under the NTA. That legislation has now lapsed, and the new Government has not, at the time of writing, announced how it intends to amend the Native Title Act.
On 15 April 1996 the appeal from Drummond J's decision concerning Wik Peoples v State of Queensland was removed to the High Court. The applications were heard by Brennan CL and Gaudron and McHugh JJ. Removal was sought by the State of Queensland and opposed by the Wik and Thayorre peoples. Removal was supported by various of the 18 respondents in the principal proceedings, including the Commonwealth, Comalco Aluminium Ltd, and the respondents referred to as 'the Cattlemen'. The State of Western Australia was granted leave to intervene.
The High Court will commence hearing the appeal in Canberra on 11 June 1996.
[1] This casenote is written is a personal capacity and does not purport to reflect the views of the Commonwealth Attorney-General’s Department or of the Commonwealth.
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