Walker v State of South Australia (No 2) [2013] FCA 700

South Australia
Federal Court
Legislation considered: 
s 61 Native Title Act 1993 (Cth)

Mansfield J held that the Court had jurisdiction and ordered that the Court will proceed to hear the interlocutory application of the State.

On the 22 October 2010, Mr Walker made an application under s 61 of the Native Title Act 1993 (Cth) (NTA) for a determination of native title on behalf of the Ramindjei people over an area of land comprising Kangaroo Island and Fleurieu Peninsula. It overlaps with the Kaurna Peoples Native Title Claim and Ngarrinderi and Others Native Title Claim. On 25 June 2012, the State of South Australia made an interlocutory application seeking orders that Walker’s application be dismissed. On 4 September 2012, Walker filed a notice (‘the Notice’) of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth), arguing that the Court does not have jurisdiction to summarily dismiss Walker’s application as the Commonwealth does not have sovereignty over the Ramindjeri people and their asserted lands, thus possesses no jurisdiction or power to hear the summary of dismissal application. 

By the Notice it was argued that the Ramindjeri never vested sovereignty or dominion over their lands to the Crown (Commonwealth or State), thus undermining any possible jurisdiction of the Federal Court, as created by Commonwealth statute, to make an order with respect Ramindjeri land. This was made on the following grounds:

(1) the Letters Patent issued by the Imperial Crown in 1836 that established the Province of South Australia had the effect of ‘barring’ the Crown from ‘extending… sovereignty or dominion over the Ramindjeris’ lands and people; (2) that the Pacific Islanders Protection Act 1875 (Imp) had the effect of ‘barring’ the Crown from ‘extending… sovereignty over the Ramindjeris’ lands and people’; (3) that the Commonwealth lacks sovereignty over the Ramindjeri people because of ‘limitations under Ramindjeri law prohibiting the vesting of Ramindjeri lands in any other party’ and neither the Constitution of the Commonwealth or State can override the Ramindjeri sovereignty over its lands; (4) the removal of s 127 of the Commonwealth of Australia Constitution Act 1900 (Cth) means that the Commonwealth has no right to ‘make laws for the Tribal people of this continent’; and (5) due to a ‘financial joinder’ between the Commonwealth and State courts and the Crown, the Courts have an interest in the outcome of an application under s 61 of the NTA and are thus precluded from impartiality.

This proposition necessarily involves an assertion that the NTA has no application to the Ramindjeri people, as it purports to invoke a jurisdiction which Walker claims does not exist. Conversely, if he pursues the claim, Walker necessarily submits the jurisdiction of the Court so it is not necessary to address those issues.

Mansfield J held that nothing in the 1834 South Australia Act nor the Letters Patent ‘preserve any sense of sovereignty in the Aboriginal people of South Australia’ or ascribe ‘any protection of Indigenous sovereignty’ (echoing Blackburn J in Milirrpum v Nabalco Pty Ltd (1971)). Construing the Letters Patent must be consistent with the fact that the Crown at that time understood that it ‘had acquired full and legal beneficial ownership over the whole of eastern Australia’ [27].

Mansfield J also rejected the asserted restriction in legislative power requiring a recognition of Aboriginal sovereignty, vested in the Indigenous people of South Australia. His Honour details the historical sequence of legislation which granted, and repeatedly confirmed plenary legislative power over the whole land and its inhabitants from 1836 to 1986 (at [35]-[42]). His Honour further held that such an assertion is also inconsistent with the decision of the High Court in Mabo (No 2).

His Honour firmly rejected the contention that the Indigenous peoples of Australia constitute a sovereign nation/s, reaffirming Gibbs J in Coe V Commonwealth [1979] who stated at 408: ‘[the Aboriginal people] have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the laws of the Commonwealth, or of a State or Territory, might confer upon them’. Mansfield J held this to be consistent with Mabo (No 2), as the rights recognised with respect to native title are, at common law, subject to statutory modification. Mansfield J observed that, in the absence of a treaty such as the Treaty of Waitangi of New Zealand, which expressly recognised Maori sovereignty, the Governor General of South Australia acknowledged Indigenous peoples’ interests in the land through the use of grants and reserves. His Honour quotes Kirby J in Fejo, who dismissed an argument that the Letters Patent Proviso provides any protection for the rights of Aboriginal People to the occupation or enjoyment of their lands. Mansfield J found that the terms of the Letters Patent proviso are ‘expressly limited in their application to the substantive provisions of the Letters Patent’ at [52].

Mansfield J also held that the Pacific Islanders Protection Act 1977 (Imp) have no application to the Indigenous people of Australia, as the application of the act is with respect to the peoples of the islands in the Pacific Ocean, who did not have the protection of the law.

Mansfield J dismisses Walker’s third contention, as Ramindjeri law does not constitute the law of Australia.

The fourth contention was also dismissed, as his Honour held that the repealed s 127 as it were did not exclude Indigenous Australians as being subject to the laws of the Crown, but signified that they were not counted in the census.

Mansfield J also rejected the fifth argument of bias.