De Lacey v Juunjuwarra People and State of Queensland [2004] QLRT 20

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: De Lacey v Juunjuwarra People and State of Queensland [2004] QLRT 20 PARTIES: R. De Lacey (Applicant) v Juunjuwarra People and State of Queensland (Respondents) FILE NO/S: NTXP00130/2003 PROCEEDING: Application in a proceeding to determine jurisdiction DELIVERED ON: 27 February 2004 DELIVERED AT: Brisbane HEARING DATE: 24 February 2004 MEMBERS: Koppenol P and Kingham DP ORDER/S: 1. The Tribunal is satisfied that it has the jurisdiction to determine whether the Starcke Pastoral Holdings Acquisition Act 1994 extinguished all native title rights and interests of the Juunjuwarra People in relation to the land the subject of EPM 13435. (at [16]) 2. That question will be determined by the Tribunal as a preliminary issue. (at [17]) 3. The matter is adjourned for a directions hearing at 10:00am on Thursday 11 March 2004. (at [18]) CATCHWORDS: EXPLORATION PERMIT APPLICATION — REGISTERED NATIVE TITLE CLAIM — EFFECT OF STARCKE PASTORAL HOLDINGS ACQUISITION ACT 1994 — JURISDICITION OF TRIBUNAL — Whether Tribunal can determine whether native title extinguished — Whether appropriate as preliminary question Mineral Resources Act 1989, ss 419(1), 422, 524(1), 675 Native Title Act 1993 (Cth), ss 23B, 24MD(2)(a)-(c), 81, 193(1)(c), 421 Starcke Pastoral Holdings Acquisition Act 1994 Wilson v Anderson (1999) 156 FLR 77, followed Western Australia v Ward (2002) 76 ALJR 1098, applied -- 1 of 5 -- Wilson v Anderson (2002) 76 ALJR 1306, applied North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595, referred to Mason v Tritton (1994) 34 NSWLR 572, referred to COUNSEL: Mr P.J. Flanagan SC and Mr J.M. Horton, for State of Queensland SOLICITORS: Ms S. Gilmour, Suthers Taylor Lawyers, Townsville, for Juunjuwarra People Crown Solicitor, for State of Queensland AGENT/S: Mr R. DeLacey, in person [1] THE TRIBUNAL: This is an application to determine whether the Tribunal has jurisdiction to decide if any native title over certain land has been extinguished. The application is brought by the applicant for the grant of a high impact exploration permit (EPM 13435, under the Mineral Resources Act 1989 (MRA)) over that land. The applicant’s contention is that the Tribunal has the necessary jurisdiction and that the extinguishment was effected by the Starcke Pastoral Holdings Acquisition Act 1994 (the Acquisition Act). [2] The respondents Juunjuwarra People and the State of Queensland opposed the application. The Juunjuwarra People have a National Native Title Tribunal- registered claim over the land concerned. [3] This application arose in the context of the applicant’s exploration permit application. Under the native title provisions of the MRA, this Tribunal is required to make a “native title issues decision” (as defined in section 675) once the exploration permit application is referred to the Tribunal.1 After the referral was made, the applicant raised the question of the effect upon the Juunjuwarra People’s native title of the Acquisition Act. [4] Central to this question is section 419(1) of the MRA, which relevantly provides that the native title provisions of the MRA apply if the grant (here, the exploration permit) concerns “non-exclusive land”—a term which relevantly means “land over which native title has not been extinguished”.2 The Tribunal has no functions in relation to the application by Mr De Lacey for the exploration permit unless the permit is over “non-exclusive land”. Whether the land applied for is “non-exclusive land” goes to the very basis for the Tribunal dealing with his application. [5] The respondents accepted that the Tribunal does have jurisdiction to decide whether the relevant land is “non-exclusive land”. However they argued that the Federal Court has the exclusive jurisdiction to determine whether native title has been extinguished. As a result, it was said that this Tribunal (a) cannot proceed to 1 MRA s 524(1). 2 MRA s 422. -- 2 of 5 -- determine that question and, as there is an existing registered native title claim, must conclude that the land is “non-exclusive land”, and (b) should proceed to make a native title issues decision. [6] We do not accept the respondents’ contentions. [7] The only superior court authority of which we are aware directly on this point is that of the Supreme Court of New South Wales in Wilson v Anderson.3 The plaintiff pastoralist sought a declaration that the grant of his statutory lease extinguished native title. There was a registered native title claim. The defendant native title parties opposed the application on the grounds that the Supreme Court did not have any jurisdiction or power to grant the declaration. They also sought a stay of proceedings. Levine J rejected the submission that the Federal Court had exclusive jurisdiction in relation to dealings with claims for native title made under the Native Title Act 1993 (Cth) (NTA) because (a) the NTA did not expressly or by implication oust a State court’s jurisdiction, (b) no decided case had authoritatively and clearly held otherwise, and (c) section 193(1)(c) (Contents of the Register) of the NTA envisages that there will be determinations in relation to native title in decisions of various courts and tribunals4—of which the New South Wales Court of Appeal’s earlier decision in Mason v Tritton5 is an example. Ultimately the Supreme Court did not grant the declaration sought as discretionary factors militated in favour of a stay of proceedings. [8] We respectfully agree with Levine J’s rejection of the native title parties’ contentions and with his reasons. [9] In the present case, many similar arguments to those advanced in Wilson v Anderson were advanced by the respondents. However like Levine J, we do not see anything in the NTA which expressly or impliedly ousts a State court’s (or tribunal’s) jurisdiction to determine whether extinguishment of native title has occurred.6 [10] Importantly, the respondents conceded that this Tribunal could determine an extinguishment question if it were “manifestly clear” that native title was extinguished—such as by the grant of a fee simple. But here, they said, it was not manifestly clear and therefore it would be necessary for factual findings as to the content of native title to first be made (by the Federal Court). Reliance was placed upon the High Court’s decision in Western Australia v Ward.7 One passage in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ is illustrative: 3 (1999) 156 FLR 77. 4 At [21], [34]-[35], [110]-[111], [140], [173]-[175]. 5 (1994) 34 NSWLR 572. In that case, the question of entitlement under native title rights arose in the defence of a criminal prosecution relating to fishing for abalone without a licence. 6 Section 81 (Jurisdiction of the Federal Court) of the NTA was specifically relied upon by the respondents, but it merely gives the Federal Court exclusive jurisdiction to hear and determine native title applications filed in the Federal Court. It says nothing about whether a State court or tribunal can determine a native title question arising in a matter before it. Section 421 (Effect of failure to comply with native title provisions) of the MRA was referred to but it relates only to an act to which the native title provisions apply. If those provisions do not apply because the land is not “non-exclusive land”, section 421 would itself not apply. It was also submitted that (a) the (mere) registration of the native title claim, and/or (b) the applicant’s capacity to apply to the Federal Court to strike out the claim or to judicially review the registration decision, effectively ousted this Tribunal’s jurisdiction to consider the extinguishment issue. We cannot see any basis for such a conclusion. 7 (2002) 76 ALJR 1098, at [26]-[29], [149]. -- 3 of 5 -- “[149] … Generally, it will only be possible to determine the inconsistency said to have arisen between the rights of the native title holders and the third party grantee [of a pastoral lease] once the legal content of both sets of rights said to conflict has been established.” [11] This point was elaborated upon in Wilson v Anderson,8 which was handed down by the High Court on the same day as Ward. Gaudron, Gummow and Hayne JJ said: [footnotes omitted] “[36] In some circumstances it is possible to determine issues of extinguishment in advance of findings as to the existence and content of the anterior native title rights and interests in question. One such example is where the extinguishing act relied upon is the grant of an estate in fee simple or of a common law lease. The grant of a fee simple extinguishes all native title rights that may exist in relation to the land the subject of the grant. This is so because the estate of fee simple “does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title”. The same reasoning applies to the grant of a common law leasehold estate. In both instances “the comprehensiveness of the grant precludes any question of partial extinguishment”. [37] Questions respecting the satisfaction of the criteria contained in s 23B of the NTA may provide a further occasion where findings of fact that establish the ambit of any native title rights and interests claimed are not required. This is because an “act” which satisfies the criteria in s 23B is a “previous exclusive possession act”.” [12] These passages establish that questions of extinguishment should usually await the anterior determination of native title, but that there are some circumstances where that exercise can be undertaken.9 The examples cited by the High Court were (a) the grant of an estate in fee simple, (b) the grant of a common law lease, and (c) a previous exclusive possession act under section 23B of the NTA. Section 23B effects a statutory extinguishment of native title by various acts which satisfy certain prescribed criteria. [13] In the present case, the applicant’s contention is that the Acquisition Act extinguished native title in relation to the land the subject of his exploration permit application. That Act compulsorily acquired the underlying pastoral holdings (as defined) and rendered the “acquired land” as unallocated State land. [14] Statutory extinguishment upon satisfaction of prescribed criteria is also provided for in section 24MD (Treatment of acts that pass the freehold test) of the NTA. Thus in section 24MD(2)(a)-(c), native title is extinguished by certain types of compulsory acquisition laws. [15] In our view therefore, the question of whether the Acquisition Act is a section 24MD(2)(a)-(c) compulsory acquisition law, which would effect an extinguishment of native title, is a question capable of separate determination prior to the factual determination of the claimed native title rights and interests. It is a determination of 8 (2002) 76 ALJR 1306. These were different proceedings from those in the Supreme Court of New South Wales which were referred to earlier. 9 The capacity to so determine questions of extinguishment was obviously not regarded as barred by the Court’s prior holding in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595. It is therefore not to the point for the respondents to say that a determination that native title has been extinguished will deprive the native title holders of valuable statutory rights because if the true position is that native title has been extinguished, no such rights would exist. -- 4 of 5 -- the legal effect of a legislative act that would not rest on any factual findings as to the rights and interests of the claimed native title. Conclusions and Orders [16] In the circumstances, we are satisfied that this Tribunal has the jurisdiction to determine whether the Acquisition Act extinguished the Juunjuwarra People’s native title rights and interests. [17] Separate determination of that question as a preliminary issue will result in a finding that the land the subject of the applicant’s exploration permit application is, or is not, “non-exclusive land” under the MRA—and therefore whether the Tribunal has the jurisdiction or power to proceed towards making a “native title issues decision”. No factual findings about the existence and content of the anterior native title rights and interests will be required. We regard this course as appropriate in the present case. [18] The matter will now be adjourned for a directions hearing at 10:00am on Thursday 11 March 2004. Orders to facilitate the hearing of the preliminary question will be made on that occasion. The parties should discuss appropriate orders prior to that date. -- 5 of 5 --