37AG Federal Court of Australia Act 1976 (Cth)

Robertson J

Background

On 30 April 2019, Robertson J made a determination of native title by consent, recognising the non-exclusive native title rights and interests of the Bundjalung People: Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales (Nicholls) (see Related Content).

Part of the material filed in support of the application was an affidavit of Ms Alexandra Donaldson, affirmed on the 9 April 2019. The affidavit expressed Ms Donaldson’s opinion as to who constituted the Bundjalung People of Byron Bay, those peoples’ law and custom and connection to country. The evidence was considered and accepted by Robertson J in Nicholls. 

The present case concerned an application made on 17 July 2019, by a third-party, Mr Stephen Hall of Brunswick Valley Historical Society Inc. (BVHS), seeking a copy of the affidavit to be added to BVHS's archive. The applicant (representatives of the Bundjalung People) opposed the request for the following reasons:

BVHS was not a party to the proceedings;
It, along with a larger number of people, may not have sufficient context to properly consider the affidavit evidence.  
If the BVHS would like to “better address queries about local Aboriginal history”, BVHS should contact the the Bundjalung of Byron Bay (Arakwal) Aboriginal Corporation (Corporation) and developing a relationship with the native title holders concerned, or by referring those seeking information about local Aboriginal history to the Corporation.

Legal Issue

The Court reasoned that, outside of circumstances where evidence is confidential, privileged or the subject of a non-publication order, access to material read in support of the determination should be accessible to the public, including Mr Hall of BVHS.

His Honour did not consider that there is any general principle, whether in proceedings under the Native Title Act 1993 (Cth) or otherwise, whereby access to material deployed in open court should be denied to a non-party, at least where allowing access would not impose a substantial and disproportionate burden on the limited resources of the Court.

As the affidavit had been admitted into evidence and was not confidential, restricted from publication, or the subject of a claim for privilege the Court's usual practice is to release material which has been used in open court or otherwise used by a judge in equivalent circumstances.

Order

Robertson J granted Mr Stephen Hall of the BVHS access to the affidavit in question.

Banks-Smith J

In this matter the Court considered an application for an urgent interlocutory injunction by Goldfields Land and Sea Council Aboriginal Corporation (GLSC) to restrain the Commonwealth Minister for Indigenous Affairs (Minister) and the Assistant Secretary, Land Branch, Department of the Prime Minister and Cabinet (Assistant Secretary) from entering into a funding agreement or providing any funding to any party, other than Grant Thornton Australia Limited, for the performance of representative body functions under Part 11 of the Native Title Act 1993 (Cth)(NTA) until an appeal against a decision not to fund GLSC is determined.

Background

GLSC was formerly the native title representative body for the Goldfields region of Western Australia .

GLSC was appointed by the then Minister as the recognised representative body for the Goldfields region from 1 July 2016 until 30 June 2018. On 1 July 2018 GLSC ceased to be recognised as the representative body for the Goldfields region.

The Minister decided not to invite the applicant to apply for recognition as the representative body for the region for a further period (NTRB decision). Funding was made available to GLSC until 30 June 2019 while a suitable alternative native title service provider was sought (Funding decision).

GLSC sought judicial review of the NTRB decision, the Funding decision and the conduct of the Assistant Secretary in making the Funding decision.

The relevant Commonwealth agency, the National Indigenous Australians Agency (NIAA), planned to enter into a funding agreement with a third party, Native Title Services Goldfields (NTSG), to provide native title service until 30 June 2020.

GLSC sought an urgent injunction to prevent execution of the funding agreement pending the outcome of its judicial review application.

Consideration

The Court considered the relevant principles for seeking injunctive relief and the evidence and submissions filed by the parties.

Balance of Convenience

The Court found that:

GLSC brought its application late, and only after transitioning and appointment steps were significantly advanced.
GLSC was not carrying out native title services in the Goldfields region, had not been doing so for some months, and therefore did not need to be funded to do so.
The suggestion that the Ranger program would be prejudiced absent injunctive relief was not supported by the evidence.
The effect of funding ceasing on GLSC's ​charitable status was the subject of submission, but there was no evidence of any communications with the appropriate body or any real evidence as to other funding utilised or tasks undertaken.
The Court was not satisfied that GLSC had established that the refusal to grant injunctive relief would have a detrimental effect on it that outweighed the effect on the Minister and Assistant Secretary and third parties if the relief was granted.
The injunction would not cause the applicant to be funded pursuant to s 203FE of the NTA.
In relation to the Funding decision, the orders sought did not appear to take into account that funding had already been provided for the period post 1 July 2019 and relevant work had been undertaken.​
GSLC failed to address the discretionary nature of the power of the Minister to recognise an eligible body as a representative body under s 203AD or the discretionary nature of the power of the second respondent to fund a native title service provider under s 203FE of the NTA.

In the Court's view the balance of convenience strongly favoured the Minister and Assistant Secretary.

Serious question to be tried

The Court had regard to the following allegations of GLSC:

The Minister failed to have regard to GLSC's email attaching a draft operational plan
There was prejudicial material contained in comments from a GLSC legal advisor and other parties which amounted to a denial of natural justice
There was impermissible conduct revealed by an email exchange between Department staff and the Assistant Secretary
The management of GLSC was wrongly considered by the Assistant Secretary
The Minister was wrongly involved in the Funding decision

The Court was not satisfied on the evidence  and submissions that GLSC's position was sufficiently strong.

Banks-Smith J referred to a “clear tipping” of the balance of convenience in favour of the respondents.

The Court considered the direct losses (presently existing and future) that NTSG would suffer and GSLC had not provided an undertaking as to damages.

Banks-Smith J was particularly concerned about the position of native title claimants who were in the course of prosecuting their native title claims and were likely to be left unrepresented until February 2020. Regard was also had to the position of persons who had not yet made applications but were seeking to make native title determinations in the Goldfields region.

It was relevant that steps had been taken by NTSG to immediately undertake services, meaning it could engage with the community sooner, conduct relevant meetings with claimants and ensure the opportunity to progress the claims towards consent determinations. A lawyer had already been retained.

The delay on the part of the applicant in bringing the application for injunctive relief was also taken into account.

Banks-Smith J held that the risk of injustice was higher if the injunction was granted than if it was not.

Orders

The Court made orders that:

The application for an interlocutory injunction is dismissed.
The name of the barrister who sent the email dated 22 October 2018 as included in the affidavit of William John Eldridge filed 18 October 2019 is suppressed and may not be published and is to be redacted in any copy of the transcript other than that provided to the Court or the parties.
No person other than a party to the proceeding or their legal advisors may inspect any of the affidavits or submissions filed in this proceeding.
The evidence tendered at the hearing of 27 November 2019 is taken to have been tendered solely for the purpose of that hearing.
Costs reserved.

Mansfield J

This is the first determination of compensation for the extinguishment of native title rights and interests under the Native Title Act 1993 (Cth) (NTA).  The matter was resolved by agreement and the Court was satisfied that it was appropriate to make orders in accordance with the proposed consent determination

The respondents were the State of South Australia and De Rose Hill-Ilpalka Aboriginal Corporation RNTBC (ICN 4712). The Commonwealth of Australia intervened in the proceedings.

Background

The application for native title to which the compensation was made commenced on 19 March 2013 and has a long history.

The starting point was an application on behalf of the Nguraritja for a determination of native title pursuant to s 61 of the NTA. After a lengthy trial and judgment: De Rose v South Australia [2002] FCA 1342 and an appeal: De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325, a further evidentiary hearing took place before the Full Court. 

In June 2005 the Full Federal Court determined that the Nguraritja held native title rights and interests over the same area as the “Determination Area” described in these orders: De Rose v South Australia (No 2) (2005) 145 FCR 290 (De Rose Hill Determination).

The De Rose Hill Determination excluded those parts of the Determination Area over which extinguishment of native title had occurred.

The first and second compensation applications

In June 2011, the Prescribed Body Corporate (PBC) for the Nguraritja applied for compensation due to extinguishment for acts in the claim area and other areas excluded from the De Rose Hill Determination (First Compensation Application). 

Negotiations for settlement of the First Compensation Application between the Nguraritja and the State took place under Court-ordered mediation and Heads of Agreement were signed.

However, under s 62(3) of the NTA, a claim to an area that has not previously been the subject of a native title determination must be accompanied by an affidavit and the applicant must be a natural person.  As the PBC ​acts as agent to the native title holders in relation to their recognised native title rights and interests it has no role to play in relation to native title rights and interests that have been extinguished. Consequently, the PBC could not validly claim compensation for the excluded area. The State agreed to allow the Applicant to discontinue the First Compensation Application as it was considered defective and the application was dismissed with no costs order.

In 2013, a second Native Title Compensation claim (Second Compensation Application) was commenced. The parties intended the determination of the Second Compensation Application to reflect the terms of the earlier agreement reached by the Nguraritja and the State.

Consequently, the parties sought an order under s 87(5) NTA in terms of the proposed Consent Determination and attaching a Settlement Deed that resolves all of the State’s actual and potential compensation liability to the Nguraritja in the area covered by both the First and Second Compensation Applications (the Agreement area) up to the time of the determination of the Second Compensation Application.

The Commonwealth did not consent to or oppose the orders. 

The further determination of native title and extinguishment

The Court then made a native title determination under s 13(2) of the NTA over those parts of the claim where no determination had previously been made.  The Commonwealth did not oppose the making of the determination. This is the entire area of the Second Compensation Application proceeding.

The parties agreed that compensation be payable by the State under the NTA for the following three past acts by the State that extinguished native title, occurring after commencement of the Racial Discrimination Act 1975 (Cth):

The 20 January 1992 freehold grant of surrendered pastoral lease to an individual;
The 15 October 1981 creation of the Stuart Highway Corridor on land surrendered from a pastoral lease; and
The 1 November 1996 resumption to the State of pastoral lease land for the establishment of the Agnes Creek car park.

The Applicants, the PBC and the State agreed that the State was not liable for any compensation in relation to the Tarcoola to Alice Springs railway corridor.

The Applicants, the PBC and the State did not agree on the compensable status of certain pastoral improvements, but agreed that the State’s compensation settlement sum would discharge the State’s obligations in relation to those improvements, whenever they occurred.

Part of the mediation included negotiations on the amount of compensation that was appropriate for the compensable extinguishment caused by the State.

Sections 51, 51A and 53 of the NTA set out the criteria for determining compensation.  Section 51 of the NTA sets out principles to be applied when making a determination of compensation on just terms and s 51A limits the total compensation for total extinguishment in relation to particular land or waters to the amount payable for a compulsory acquisition of a freehold estate, unless that would infringe the requirement in s 53 for compensation to be on ‘just terms’ as per s 51(xxxi) of the Commonwealth of Australia Constitution Act 1900 (Cth).

The State did not accept that the current freehold value of the extinguished area was necessarily relevant to the value of the native title rights and interests lost. However, the issue was agreed to be relevant for the purpose of section 51A(1) of the NTA.

Obtaining agreement on the freehold value of the land concerned was not possible. Ultimately, the parties exchanged amounts which they would be prepared to offer or accept until a mutually agreeable amount was reached.

The Agreement does not cover any compensable extinguishment of native title attributable to the State in the period following the determination.

Orders for compensation

Justice Mansfield considered the agreement satisfied the requirements of sections 87 and 94 of the NTA and it was appropriate for the Court to make the orders:

An agreement had been reached by the parties and the Commonwealth, as intervener, did not oppose the making of the determination.
The determination provides the method for determining the persons entitled to the compensation, the amount or kind of compensation to be given to each person and any dispute regarding the entitlement of a person to an amount of compensation. 
All relevant interest holders in the area have had an opportunity to take part in the proceeding.
All parties have had independent and competent legal advice in the proceeding.
Schedule 1 to the proposed Consent Determination contains a detailed description of the Determination and Agreement Areas.

In reaching this conclusion, his Honour referred to the solicitor employed by South Australian Native Title Services and senior counsel who advised the native title holders and the PBC as an indication of the informed nature of the parties’ consent.  His Honour also referred to extensive negotiations in Adelaide and considered the on-country discussions and disclosures important for contextualising the significance to the native title holders of particular areas of land.  His Honour considered this approach to be consistent with the preference for mediation as the primary means of resolving native title applications.

Justice Mansfield cited Lander v South Australia [2012] FCA 427 at [12] that, where the parties have entered into an agreement and, particularly where one of the parties is the state:

[T]he Court does not need embark on its own inquiry of the merits of a claim made in the application to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J.

Justice Mansfield also considered that the early resolution of proceedings, without the need for a hearing, is also consistent with the overarching purpose of the Court’s civil practice and procedure, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

The nature and extent of negotiations about the amount of compensation was another factor used by the Court to conclude that orders under s 87 of the NTA were appropriate. 

Compensation payment not disclosed

The Compensation Agreement (Schedule 3 of the Orders) does not disclose the compensation payment amount. Justice Mansfield considered this was necessary to prevent prejudice to the proper administration of justice, under s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth). The reasons for not disclosing the figure are discussed at paragraph 82. His Honour considered that disclosure of the compensation figure may:

create expectations in other matters which private consensual agreement should not produce, as there are presently no decisions addressing how compensation under the NTA is to be assessed;
Be seen to set a tariff for other compensation claims which is not appropriate as each set of circumstances will necessarily be different;
Draw attention to and invite criticism – positive or negative – of the Nguraritja from other compensation claimants under the NTA in a way which would be unfair. It may also invite criticism – positive or negative – of the State;
The unfairness would flow from the fact that, as the figure has been agreed in private mediation and negotiations, it is not possible to know the detailed considerations which led to the agreement.
All of these factors mean disclosure of the figure may impede the prospects of satisfactory negotiation of other compensation claims and that would impede and prejudice the proper administration of justice, especially where the NTA encourages the negotiated outcome of applications particular to the circumstances of each case.