Denniss v Minister for Land & Water Conservation [1999] FCA 1169 (25 August 1999)

Last Updated: 13 September 1999

FEDERAL COURT OF AUSTRALIA

Denniss v Minister for Land & Water Conservation [1999] FCA 1169

NATIVE TITLE - Application to restrain sale by statutory authority of land subject to a claim for recognition of native title - Land freehold land granted in 19^th century and re-acquired by government authority for construction of a power station - Whether native title has been extinguished - Whether s23B(9C) or s47B of Native Title Act assists application - Application for injunction refused and proceeding dismissed.

Fejo v Northern Territory of Australia [1998] HCA 58, 156 ALR 721 applied

Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 cited

Native Title Act 1993, ss23A, 23B and 47B

JAMIE ROY DENNISS v MINISTER FOR LAND AND WATER CONSERVATION and PACIFIC POWER

N6010 of 1999

WILCOX J

SYDNEY

25 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY	N6010 of 1999

BETWEEN:	JAMIE ROY DENNISS Applicant
AND:	MINISTER FOR LAND AND WATER CONSERVATION First Respondent PACIFIC POWER Second Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	25 AUGUST 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Notice of Motion dated 16 July 1999 be dismissed.

2. The Application filed on 16 July 1999 be dismissed.

3. The costs of the Notice of Motion and principal proceeding be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY	N6010 of 1999

BETWEEN:	JAMIE ROY DENNISS Applicant
AND:	MINISTER FOR LAND AND WATER CONSERVATION First Respondent PACIFIC POWER Second Respondent

JUDGE:	WILCOX J
DATE:	25 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 WILCOX J: On 16 July 1999 Jamie Roy Denniss filed an application in this Court seeking a determination that native title exists over specified land near Tuggerah Lake on the Central Coast of New South Wales. The claim was notified to the New South Wales Minister for Land and Water Conservation. The Minister became the first respondent to the proceeding.

2 Mr Denniss believed the land, or at least most of it, was under the control of Pacific Power, a corporation owned by the New South Wales government that was formerly known as, or was part of, the Electricity Commission of New South Wales. Apparently the Electricity Commission acquired the land some years ago with a view to the construction of a power station. Mr Denniss also believed that proposal had been abandoned and Pacific Power was planning to put the land up for sale by auction. Accordingly, he caused Pacific Power to be joined as second respondent to the application and filed a Notice of Motion seeking an interlocutory injunction restraining any sale of the land until determination of the application.

3 The Notice of Motion came before me for directions on 27 July 1999. On that day Mr Denniss appeared in person, Ms Sophia Illiades appeared for the Minister and Ms P Lane of counsel appeared for Pacific Power. Ms Lane confirmed that Pacific Power wished to sell the land but she gave an undertaking to the Court that no sale would be effected until after disposal of the motion for interlocutory relief. She requested the motion be dealt with as soon as possible. I fixed 13 August 1999 for the hearing of the motion.

4 On 13 August 1999 Mr P McClellan QC appeared with Ms Lane; otherwise the appearances were as before. Mr Denniss supplied to the Court a document dealing with the relationship between the Darkinoong (also referred to as Darkinjung, Darkinun and Dargingung) People and the subject land. The document did not address the subject of tenure. However, both the respondents read affidavits dealing with that matter. It is unnecessary to detail the material in the affidavits. It is enough to say they demonstrate, among other things, that the whole of the land is held in fee simple; mostly in the name of the Electricity Commission of New South Wales, but some small parcels are in other names. It seems the land was granted by the Crown to private grantees in the 1830s and 1850s.

5 In response to a question from me, Mr Denniss said he accepted that the whole of the land the subject of his application was freehold land. He argued this did not matter; as the land had been re-acquired by an agency of the New South Wales government, it was available for claim under the Native Title Act 1993. This being so, he said, the Court ought to restrain Pacific Power from selling the land until after determination of the claim. I drew Mr Denniss' attention to the decision of the High Court of Australia in Fejo v Northern Territory of Australia [1998] HCA 58, 156 ALR 721. Mr Denniss said he had recently become aware of the decision but contended it did not conclude the present case against him. He referred to observations by Kirby J, especially to what his Honour said in paras [109] and [111]. Those passages dealt with an argument for the appellant, in Fejo, that extinguishment of native title rights might be retrievable. It was apparently suggested to the Court that, "if after the grant of a fee simple interest in land the subject of native title claims, the land passed from a private owner, returned to the Crown and was restored to its essential character as unalienated Crown land, native title in the land might revive". After referring in para [110] to decisions explaining the concept of extinguishment, especially overseas decisions, Kirby J said in para [111]:

"I have already pointed out that care must be observed in the use of overseas authority in this context because of the differing historical, constitutional and other circumstances and the peculiarity of the way in which recognition of native title came belatedly to be accepted by this court as part of Australian law. I have some sympathy for the appellants' contentions. In the circumstances described in the facts pleaded in the present case (including the later acquisition of the legal estate by the Commonwealth and the effective reversion of the land in question to a kind of wasteland status in which the incidents of native title could undoubtedly be enjoyed in fact) the attractions of embracing a principle of revival of native title are strong. A rule of the common law could doubtless be formulated which permitted the `lifting' of the extinguishment for a case such as the present. Such a rule might leave private owners of land in fee simply fully protected but expose to such claims governmental landholdings of the very kinds of land in which native title might often have its most practical meaning."

6 Mr Dennis argued that, in the latter part of this paragraph, Kirby J was envisaging the very change of law that occurred with the commencement of the Native Title Amendment Act 1998, soon after the date of the High Court's decision. He referred in particular to the insertion into the 1993 Act of s23B(9C). That subsection reads:

"If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a previous exclusive possession act:

(a) unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters; or

(b) if the grant or vesting does not, apart from this Act, extinguish native title in relation to the land or waters - unless and until the land or waters are (whether before or after 23 December 1996) used to any extent in a way that, apart from this Act, extinguishes native title in relation to the land or waters." [Original highlighting]

7 Mr Denniss added a reference to s47B - also introduced in 1998 - concerning Crown land available for native title claim. He said the subject land was Crown land, within the meaning of s47B, and therefore available for claim.

8 Each step in Mr Denniss' argument involves a difficulty. In Fejo, a case whose facts were not unlike those of the present case, the High Court was unanimous in holding that a grant of freehold title forever destroyed any preceding native title. In their joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said:

"[42] The appellants contended that the 1882 grant to Benham did not necessarily extinguish native title. It was said that if it affected native title at all, it did no more than suspend the right of the traditional owners to exercise their native title (the enjoyment of which, it was submitted, may well have continued in fact). If the grant had this effect on the right to exercise native title, it was submitted that that effect ceased when the land came once again to be held by the Crown.

[43] These contentions must be rejected. Native title is extinguished by a grant in fee simple. And it is extinguished because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title. An estate in fee simple is, `for almost all practical purposes, the equivalent of full ownership of the land' and confers `the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination'. It simply 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."

9 Their Honours supported these statements by references to earlier decisions of the High Court, in Mabo v Queensland (No.2)[1992] HCA 23; (1992) 175 CLR 1 and Wik Peoples v Queensland (1996) 187 CLR 1. They also explained the conceptual foundation for this result.

10 Kirby J did not differ from his colleagues in relation to that conclusion. It is true that, in para [111], he referred to the possibility that a common law rule could be formulated permitting the lifting of extinguishment in a case like the one before the High Court. His Honour was thinking of a rule devised, not by the legislature, but by the courts, as was the principle of recognition of native title enunciated in Mabo. However, Kirby J did not propose such a rule. On the contrary, he proceeded in para [112] to say:

"For a number of reasons of legal authority, principle and policy, I cannot accept the proposition that the extinguishment occasioned by the grant of a fee simple interest is other than irreversible: ..."

His Honour set out those reasons.

11 Contrary to Mr Denniss' submission, s23B(9C) of the Native Title Act, as amended, is not a legislative reversal of the rule stated in Fejo. That subsection must be read in its context. It appears in Division 2B of the Act, which is headed: "Confirmation of past extinguishment of native title by certain valid or validated acts". The Division commences with s23A which explains its purpose:

"(1) In summary, this Division provides that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title.

(2) If the acts were previous exclusive possession acts (involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession, or the construction or establishment of public works), the acts will have completely extinguished native title.

(3) If the acts were previous non-exclusive possession acts (involving the grants of non-exclusive agricultural leases or non-exclusive pastoral leases), they will have extinguished native title to the extent of any inconsistency.

(4) This Division also allows States and Territories to legislate, in respect of certain acts attributable to them, to extinguish native title in the same way as is done under the Division for Commonwealth acts." [Original highlighting]

12 The significance of 23 December 1996 is that this was the date of the High Court's decision in Wik. As I understand s23A, the Division was intended to ensure that certain acts, that fell within the definition of "previous exclusive possession act" contained in s23B, would completely extinguish native title if they were attributable to the Commonwealth and done on or before 23 December 1998. If the acts fell within the definition of "previous non-exclusive possession act", as defined in s23F, they would extinguish native title to the extent of any inconsistency between those acts and the continuation of native title.

13 It will be apparent that s23B is only a definition section, necessary to give meaning to s23A(2). Consistently with that function, s23B sets out a series of acts that do or do not constitute a "previous exclusive possession act". One of the acts that does not constitute a previous exclusive possession act is "the grant or vesting of an interest in relation to land ... to or in the Crown ... or a statutory authority": see subs (9C).

14 It is true that, by various relatively recent transfers, the whole of the subject land has become vested in a statutory authority; but that circumstance does not mean subs (9C) has present relevance. I say that for two reasons. First, the subsection operates to make an act, that consists of the granting or vesting of title, not a "previous exclusive possession act" only where:

(a) apart from the Act, the grant or vesting extinguishes native title in the relevant land; or

(b) the land is used in such a way that, apart from the Act, native title is extinguished.

Neither of these conditions is satisfied in this case. The native title to the subject land was not extinguished by the transfer of the land to the Electricity Commission of New South Wales but by the freehold grants in the 19^th century. Grants made by governments prior to the commencement of the Racial Discrimination Act 1975 do not require validating legislation to make them effective: see Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 454 where Mason CJ, Brennan J, Deane J, Toohey J, Gaudron J and McHugh J said:

"An act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act. Such an act neither needs nor is given force and effect by the Act."

15 Second, s23A operates only where the extinguishing act was attributable to the Commonwealth. The Commonwealth was not involved in the grant of freehold title over the subject lands.

16 Finally, s47B is not relevant to this case. Section 47B(1) states the section applies where three conditions are satisfied. One of them is that, when the application for determination of native title is made, the area is not affected by any one of a number of specified interests. The specified interests include a freehold estate. As the subject area was covered by a freehold estate at the time of the application for determination, it is excluded from the operation of s47B.

17 The effect of the above reasoning is that there is not a serious issue to be tried in relation to Mr Denniss' claim for native title; on the uncontroverted facts, it is clear the claim must fail. In that situation I must refuse Mr Denniss' application for interlocutory relief.

18 During the course of argument, I raised with the parties the future of the principal proceeding, if I concluded native title had been extinguished. Mr Dennis accepted it would be appropriate, in that event, for me immediately to dismiss the whole proceeding, leaving him the right, if he so wished, to challenge my conclusion on appeal. Having further considered the matter, I think this is the correct course to take. The problem facing Mr Denniss is not one that may conceivably be remedied by further evidence; there appears to be no question about the history of the various titles. If I am correct in thinking that the effect of the 19^th century grants is that native title has been extinguished, the claim must fail as a matter of law. So it is preferable to dismiss it immediately. If my view is incorrect, it may be corrected on appeal, in relation to which Mr Denniss does not need the leave of the Court.

19 There was some discussion about costs. Neither Ms Illiades nor Mr McClellan had any instructions about that matter. It may be they will receive instructions not to seek costs, especially having regard to the co-operative and efficient manner in which Mr Denniss has acted in resolution of his claim. At this stage I will simply reserve the costs of both the motion and the principal proceeding. If either of the respondents decides to seek costs this should be done by a note to my associate, with brief supporting submissions, and a copy to Mr Denniss. The note should be forwarded within 14 days and Mr Denniss should have 14 days to respond.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 25 August 1999

Applicant in person
Solicitor for the First Respondent:	S Illiades
Solicitors for the First Respondent:	Crown Solicitor's Office
Counsel for the Second Respondent:	P McClellan QC and P M Lane
Solicitors for the Second Respondent:	Davis O'Neill Sistrom
Date of Hearing:	13 August 1999