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Australian Indigenous Law Reporter |
Court and Tribunal Decisions – Australia
Federal Court of Australia (Cooper J)
24 November 1999
NATIVE TITLE — Application for final injunctive relief by native title claimants as against the holder of a buoy mooring authority which was to be located within the claim area — what procedural rights, if any, were afforded to the native title claimants by s 24HA and/or s 24NA of the Native Title Act 1993 (Cth).
The applicants sought injunctive and declaratory relief in relation to the issue of a permit by the Cairns Harbour Master to Pasminco Century Mine Ltd to establish a buoy mooring. The applicants were registered as native title claimants in respect of the seas where the buoy mooring was located. The applicants contended that the issue of the permit was invalid for failure to comply with the procedures of s 24HA(7), or alternatively s 24NA(8), of the Native Title Act 1993 (Cth) (the NTA). By notice of motion the applicants sought final relief in respect of the permits. They did not seek interlocutory relief pending the determination of their native title claim.
1. The procedural rights on which the applicants relied only arise for their exercise where an act or a proposed act constitutes a future act as defined by s 233 of the NTA.
2. Where native title rights have not been determined, the possibility that an act may ultimately be shown to be a future act as defined does not give to the native title claimant a right on registration of the claim to have the prescribed procedural steps taken.
3. The NTA sets out consequences of non-compliance with the statutory procedures; it does not require that the Queensland government or Pasminco do anything or follow any particular procedure in respect of the relevant acts. No final injunction would lie to compel either Queensland or Pasminco to take those steps. Western Australia v Commonwealth (The Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373 followed.
4. Assuming that the acts were covered by either s 24HA(1) or s 24NA(1), failure to comply with the statutory procedural steps would not render the acts invalid.
5. To obtain the final relief sought, the applicants had to establish on the balance of probabilities that they held native title with respect to the seas or submerged lands at the site of the mooring, and that those rights are such that laying the buoy mooring would detrimentally interfere with those rights. The issues arising in the notice of motion were not issues arising under the NTA for the purposes of s 213(2). If actual or claimed native title rights are sought to be enforced or protected by court order, the party seeking protection must take proceedings in a court of competent jurisdiction. Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 referred to.[1]
1. The applicants are claimants to native title rights and interests in part of the seas and submerged lands of the Gulf of Carpentaria. On 18 March 1996, when the claim was lodged, they were registered as claimants in accordance with the provisions of the Native Title Act 1993 (Cth) (the NTA). The native title or native title rights and interests claimed are ‘the right to exclusive possession, occupation, use and enjoyment of the lands and waters’ which are the subject of the claim together with other rights to exploit the resources of the seas and lands claimed.
2. The applicants, on 23 December 1997, commenced proceedings in this Court (QG207 of 1997) for the determination of their native title or native title rights and interests in the seas and submerged lands the subject of their registered clam.
3. Pasminco Century Mine Ltd (Pasminco) is the operator of the Pasminco Century Mine. As part of its operations it intends to transport mineral deposits mined from the mine to overseas bulk carriers anchored in the Gulf of Carpentaria. The proposed route to the offshore anchorage does not cross the seas or submerged lands the subject of the applicants’ claim. However, this area is prone to cyclonic weather during the cyclone season. In consequence, it is necessary that the barge to be used by Pasminco have access to a safe haven in the event of cyclonic weather. Pasminco identified an area known as Investigator Road between Bentinck and Sweers Islands as a safe place for a mooring in the event of cyclonic conditions. The site chosen is within the area of the registered claim.
4. Pasminco applied under reg 123(d) of the Transport Operations (Marine Safety) Regulation 1995 (Qld) (the Marine Safety Regulation), for an authority to establish a buoy mooring. The application was made on 12 July 1999 to Queensland Transport — Marine Operations. The application was for a Restricted Buoy Mooring Authority. The nominated ship was the ‘MV Wunma’, a bulk carrier transfer vessel of 110 metres with a draft of 3.85 metres. The application was accompanied by a chart extract which showed the proposed position of the mooring and fixed its position by bearings taken from North Fowler Island, Raft Point on Bentinck Island and Inscription Point on Sweers Island. The application also was accompanied with an engineering drawing of the proposed mooring.
5. On 6 August 1999 a Restricted Buoy Mooring Authority was issued by Captain A Boath, the Acting Regional Harbour Master (Cairns). It required as a condition that the mooring be placed within 30 days of the date of issue of the authority which was shown as 27 July 1999. The location details were omitted from the face of the authority under the heading dealing with the location of the proposed mooring. Mr Campbell Smith, a marine consultant to Pasminco, deposed to attending on Captain Boath on 12 August 1999 and requesting that he extend the time within which to lay the mooring to 90 days from the date of issue of the authority, and insert the location co-ordinates into the space provided in the authority. Mr Smith deposes that Captain Boath agreed to do both, and the authority was amended and initialled by Captain Boath in two places. The first initialling records the varied time condition. The second initialling is against the provision for location details. However, Captain Boath did not insert the details of the approximate latitude and longitude of the mooring location. Mr Smith’s evidence in this respect was not challenged and I accept it.
6. No notice of the application for the Restricted Buoy Mooring Authority was given to the applicants by Queensland Transport or Captain Boath as the delegate of the Chief Executive for the purpose of reg 170(1) of the Marine Safety Regulation. Nor was any notice given to them of the grant of the authority to Pasminco. There is some evidence that some of the applicants were aware by 6 July 1999, as a consequence of meetings on Sweers, Bentinck and Mornington Islands, that an application would be made for a buoy mooring authority for the ‘MV Wunma’ in the event of a cyclone and that the location of the proposed mooring was between Sweers and Bentinck Islands in the Investigator Road.
7. On 25 October 1999 the applicants, by notice of motion filed in proceedings QG207 of 1997, sought the following orders :
(1) That the Restricted Buoy Mooring Authority No: CK-005 issued on either 6 August 1999 or 27 July 1999 is invalid.
(2) That Pasminco Century Mine Ltd and its contractors be restrained from constructing, and/or authorising the construction of the cyclone mooring referred to in the Restricted Buoy Mooring Authority No: CK-005 issued on either 6 August 1999 or 27 July 1999.
(3) That Pasminco Century Mine Ltd and its contractors be restrained from mooring the MV Wunma (Reg No: Dark Blue Bulk Carrier Transfer Vessel — Call Sign VHN 9140) and/or any other ship or vessel at Buoy Mooring CK-005 referred to in the Restricted Buoy Mooring Authority No: CK-005 issued on either 6 August 1999 or 27 July 1999.
(4) That the State of Queensland be restrained from extending, renewing and/or reissuing the Restricted Buoy Mooring Authority No: CK-005 issued on either 6 August 1999 or 27 July 1999 or similar authority.
(5) Any other Order that the Court considers appropriate.
The Applicant will further move the Court for interlocutory orders that:
(6) That Pasminco Century Mine Ltd and its contractors be restrained from constructing, and/or authorising the construction of the cyclone mooring referred to in the Restricted Buoy Mooring Authority No: CK-005 issued on either 6 August 1999 or 27 July 1999 until further order.
(7) That Pasminco Century Mine Ltd and its contractors be restrained from mooring the MV Wunma (Reg No: Dark Blue Bulk Carrier Transfer Vessel — Call Sign VHN 9140) or any other ship or vessel at Buoy Mooring CK-005 referred to in the Restricted Buoy Mooring Authority issued on either 6 August 1999 or 27 July 1999 until further order.
(8) That the State of Queensland be restrained from extending, renewing and/or reissuing the Restricted Buoy Mooring Authority No: CK-005 issued on either 6 August 1999 or 27 July 1999 until further order.
The Applicant will further move the Court for an Order that:
(9) The time for service of the Notice of Motion be abridged.
8. The relief sought in the notice of motion was in fact final relief separate from the relief claimed in QG207 of 1997.
9. On the return of the notice of motion on 27 October 1999 I gave directions for the further conduct of the issues raised in the notice of motion including a direction that notice be given by the applicants of the form of orders they would seek on the hearing of the motion on 8 November 1999.
10. By their outline of submissions, the applicants sought the following orders :
(1) The Restricted Buoy Mooring Authority issued to Pasminco Century Mine Ltd by Captain A Boath A/Regional Harbour Master (Cairns) dated 6 August 1999 and 27 July 1999 and bearing Buoy Mooring Number CK-005 be declared invalid.
(2) Pasminco Century Mine Ltd be restrained from establishing, constructing or placing, itself or by its employees and agents, a buoy mooring at the location between Bentinck Island and Sweers Island or at any other place in the area the subject of the native title application.
(3) The State of Queensland be restrained from issuing any authority or sanction permitting or authorising Pasminco Century Mine Ltd to establish, construct or place, itself or by its employees or agents, a buoy mooring at the location between Bentinck Island and Sweers Island or at any other place in the area the subject of the native title application.
11. In reply to an inquiry from the solicitors for Pasminco, the applicants by their solicitor’s letter of 2 November 1999, advised:
(1) No interlocutory orders are sought by the Applicants, they seek only final relief in the terms stated in the Outline.
(2) (a) The applicants will not be relying on any affidavits or oral evidence concerning native title.The applicants rely on registration to establish their entitlement to the procedural rights in relation to future acts set out, and protected, in the Native Title Act. The Applicants rely on the rights and interests appearing on the register.
(b)&(c)The applicants will not be seeking an order that native title exists nor do they rely on there being a triable issue. The applicants rely on the registration of their native title claim and the rights and interests appearing on the register.
12. On the hearing of the notice of motion on 8 and 9 November 1999, the applicants sought the following relief:
(1) A declaration that the Restricted Buoy Mooring Authority issued to Pasminco Century Mine Ltd by Captain A Boath A/Regional Harbour Master (Cairns) dated 6 August 1999 and 27 July 1999 and bearing buoy mooring number CK-005 (the Authority) is invalid.
(2) An order restraining Pasminco Century Mine Ltd from establishing, constructing or placing, itself or by its employees and agents, a buoy mooring at the location between Bentinck Island and Sweers Island or at any other place in the area the subject of the native title application pursuant to the Authority.
(3) An order restraining Pasminco Century Mine Ltd from establishing, constructing or placing, itself or by its employer and agents, a buoy mooring at the location between Bentinck Island and Sweers Island or at any other place in the area the subject of the native title without first obtaining —
(a) valid Authority under the Marine Safety Regulation;
(b) the sanction of the Minister under s 86 of the Harbours Act 1955 (Qld);
and without complying with s 24NA of the Native Title Act 1993 (Cth).
(4) A declaration that the chief executive (under the Transport Infrastructure Act 1994 (Qld)) may not grant a buoy mooring authority under the Transport Operations (Marine Safety) Regulation 1995 unless and until:
(a) the requirements of ss 24HA and 24NA of the Native Title Act 1993 have been complied with; and
(b) the agreement of the native title holders has been obtained.
(5) A declaration that the responsible Minister may not sanction works or the placing of a structure under s 86 of the Harbours Act 1955 (Qld) unless and until:
(a) the requirements of ss 24HA and 24NA of the Native Title Act 1993 have been complied with; and
(b) the agreement of the native title holders has been obtained.
13. The applicants did not seek interlocutory relief and did not seek a finding that they had native title rights and interests in the seas and submerged land at the location where it is intended to lay the buoy mooring (the proposed site). Nor did they seek a finding as to the nature, content and extent of any native title rights and interests as may have been found to exist at the proposed site. The applicants relied solely upon being the registered claimants of certain native title or native title rights and interests specified in their registered claim which covered an area that included the proposed site as giving them statutory procedural rights under the NTA. It is the protection of those rights in the circumstances which have happened the applicants submit, which gives rise to an entitlement to the final injunctive and declaratory relief sought.
14. There is an alternative basis to the claim for relief.
15. The applicants rely upon the existence of their native title claim, and their status as registered claimants, under the NTA, and their standing as the applicants in QG207 of 1997 for determination in this Court of their native title or native rights and interests, as giving them standing to seek injunctive relief to restrain Pasminco from laying the buoy mooring in circumstances which the applicants contend will constitute a contravention of reg 177(1) of the Marine Safety Regulation and/or s 86(2) of the Harbours Act 1955 (Qld).
16. Central to the applicants’ contentions that they have statutory procedural rights under the NTA is that the granting of the authority to Pasminco and the laying of the buoy mooring pursuant to the authority are ‘future acts’ for the purposes of Div 3 of Pt 2 of the NTA.
17. If the acts are future acts, the applicants submit that they were entitled under s 24HA(7) of the NTA to be notified of the intention to grant an authority to lay the buoy mooring, and to be given an opportunity to comment on the proposed authorisation. Additionally, or alternatively, the applicants submit that they were entitled under s 24NA(8) to the procedural rights they would have held on the assumption that instead of the native title rights and interests they claim, they held corresponding rights and interests in relation to the offshore places that are not native title rights and interests. The corresponding rights and interests which they claim are those which would be held by the holder of a freehold estate to the proposed site and to the surrounding submerged lands.
18. The main objects of the NTA are contained in s 3. Those objects include the recognition and protection of native title (s 3(a)), and, the establishment of ways in which future dealings affecting native title may proceed and to set standards for those dealings (s 3(b)). The NTA gives effect to the first object by s 10 and s 11. By s 10, native title is recognised and protected in accordance with the NTA. Native title is not able to be extinguished contrary to the NTA (s 11(1)).
19. As to s 11(1) of the NTA, the High Court said in Western Australia v Cth (The Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373 at 453 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ :
... The protection given to native title by this provision removes its vulnerability to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. By that prima facie sterilisation, s 11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title.
20. The second object of the NTA, so far as is presently relevant, finds expression in the future acts regime provided for in Div 3 of Pt 2 of the NTA. A ‘future act’ is defined by s 233. That section, so far as is presently relevant, provides:
233. (1) Subject to this section, an act is a future act in relation to land or waters if:(a) either:
(i) it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or
(ii) it is any other act that takes place on or after 1 January 1994; and
(b) it is not a past act; and
(c) apart from this Act, either:
(i) it validly affects native title in relation to the land or waters to any extent; ...
21. An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise: s 227.
22. Acts which do not affect native title are not future acts for the purposes of the NTA and in consequence are not dealt with by Div 3 of Pt 2 of the NTA: s 24AA(1).
23. The scheme of the NTA is not to prohibit certain future conduct and to permit other conduct. Rather, it deals with the consequences of the conduct. Some conduct will affect native title; some will not: Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 at 118 (per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). The 1998 amendments to the NTA did not alter the underlying scheme of the NTA in relation to future acts, notwithstanding the substantial alterations to Subdiv A of Div 3 of Pt 2 of the NTA. Under the previous regime the division dealt with impermissible future acts and permissible future acts, as defined by the then s 236 and s 237 respectively. Division 3 of Pt 2 prescribed the extent to which State law may affect the regime of protection of native title, and in so doing it prescribed the criteria ‘which must be satisfied if the State law is to operate within the area relating to future acts left to it by the [NTA]’: Western Australia v Cth at 470. The provisions of the then Div 3 (including Subdiv B — the right to negotiate) which related to future acts merely prescribed the scope of exceptions to the general protection of native title given by s 11 of the NTA: Western Australia v Cth at 471.
24. The majority of the court in Western Australia v Cth treated the provisions of the division as, for the most part, regulatory. They concluded (at 471-2):
Permissible future acts fall into one of three categories: (i) permissible future acts covered by s 26(2) to which Subdiv B applies. Subdivision B prescribes the procedure that must be followed and the conditions that must be fulfilled if a proposed permissible future act covered by s 26(2) is to be valid; (ii) permissible future acts to which s 24 or s 25 applies. Sections 24 and 25 govern particular acts which, though valid, may give rise to a claim for compensation or may deny pro tanto the effectiveness of native title rights; and (iii) permissible future acts which do not fall into either of those categories. Acts in this category are valid: s 23(2). They take effect according to the tenor of the State law which is, or which authorises, the proposed permissible future act. Categories (ii) and (iii) relate to permissible future acts that, being valid, are effective to extinguish or affect the rights and interests of the holders of native title. Category (i) creates a gateway to validity through which other permissible future acts must pass if they are to affect the rights and interests of the holders of native title. Subdivision B defines the scope of the category (i) exceptions to the general protection of native title declared by s 11(1). It does not purport to impose upon a State Parliament or other ‘Government party’ any positive obligation or duty to do anything or to follow particular procedures.
25. For present purposes, the rights of notification and consultation given in s 24HA(7), and the procedural rights given under s 24NA(8) to be dealt with in the same way as if the holders of native title held corresponding rights and interests in relation to the offshore place that are not native title rights and interests, are no different in character to the rights given under s 23(6) of the NTA prior to the 1998 amendments.
26. The procedural rights given by Div 3 of Pt 2 of the NTA only arise for their exercise where an act or a proposed act is, or would constitute, a future act as defined by s 233 of the NTA. If an act or a proposed act is not, or would not be, a future act as defined, the holder of, or the registered claimant to native title rights in the lands or seas to which the act relates will not obtain the benefit of the procedural steps under Div 3 which condition the validity of the consequences flowing from the act.
27. Where native title rights have not been determined, the possibility that an act may ultimately be shown to be a future act as defined once the existence, nature, content and extent of the native title rights and interests are determined, does not give to the native title claimant a right or entitlement upon registration of the claim to have the prescribed procedural steps taken. If the procedural steps under Div 3 of Pt 2 are not taken and it ultimately transpires that the act was a future act, the question then is the consequence of the act in terms of the NTA because the appropriate procedural steps in relation to the registered claimants were not taken before or at the time of doing the act.
28. In order to avoid any future doubt as to the validity of an act, procedural rights may be extended to the holder of, or the registered claimant to, native title rights or interests in or in respect of the lands and seas to which the act relates by the body or person proposing to do the act. The purpose for taking such procedural steps irrespective of whether or not the registered claimant has native title in the lands or seas which may be affected by the act, is to ensure that the validity extended to the exceptions contained in Div 3 from the general invalidity of future acts, as defined, is not in doubt by the failure to take the procedural steps in Div 3. The extending of the procedural rights to the registered claimants in those circumstances, prior to determination of the native title interests, does not necessarily mean that in truth and reality the registered claimants have native title rights and interests which are affected by the act, as defined, and thus are entitled to the procedural rights being extended if it is sought to establish the act as a future act within the exceptions in Div 3.
29. As appears from the reasons in Western Australia v Cth at 472, the existence of the statutory procedures in Div 3 does not in the present case impose on Queensland or Pasminco any duty or obligation to do anything or to follow any particular procedure in doing the acts or the proposed acts complained of. It therefore follows that no final injunction or declaratory relief will lie to enforce Queensland or Pasminco to take the procedural steps for the benefit of the applicants if the acts or threatened acts can be characterised as falling within the acts described in Subdivs 24HA and 24NA or either of them.
30. In an appropriate proceeding, whether in this Court or in a court of competent jurisdiction, the question may arise as to the validity of the acts complained of in respect to the applicants’ native title or native title rights and interests in the proposed site. Assuming that the acts are found to be future acts, as defined, and properly characterised as acts covered by s 24HA(1) and s 24NA(1) or either of them and thus falling within the exceptions provided in Div 3, the issue will then be whether the failure to follow the procedural steps in s 24HA(7) and/or s 24NA(8) has any consequences for the validity of the acts so far as the applicants’ native title in the proposed site is concerned. Although it is unnecessary to decide this question, in my view the legislative intention, as determined from the objects of the NTA, the context, and the provisions of Div 3, was that a failure to comply with the procedural steps would not mean that the acts were invalid under the NTA. The non-extinguishment principle applies to both s 24HA and s 24NA. This means that the rights and interests of the native title holder are only affected to the extent provided by s 238 of the NTA for so long as the acts continue to have effect. Further, a right of compensation is provided under s 24HA(5) and s 24NA(6) respectively. Finally, where it is intended that failure to take the procedural steps will deny validity, eg failure to negotiate as required by Subdiv P, the NTA expressly states the consequential invalidity which flows from such a failure. The subdivisions under consideration expressly provide for validity of acts falling within the description of the acts covered by the subdivisions and are silent as to the consequences of non-compliance with s 24HA(7) and/or s 24NA(8). In these circumstances, and applying the principles explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 390-1, I would, if required, have concluded that failure to follow the procedural steps in s 24HA(7) and s 24NA(8) would not deny validity to the acts complained of assuming those acts were covered by s 24HA(1) and s 24NA(1) or either of them. As to this assumption, I express no opinion.
31. Because the applicants have no enforceable procedural rights under s 24HA(7) or s 24NA(8) which would entitle them to the final relief which they seek, the only basis upon which relief may be obtained is either interlocutory relief in QG207 of 1997 or final relief to enforce the native title or native title rights and interests which they claim, or, to protect the same, by seeking the final orders in paras 1 and 2 of the orders sought on the hearing of the notice of motion.
32. The applicants have eschewed seeking interlocutory relief pending determination of their claim in QG207 of 1997.
33. To obtain the final relief sought, the applicants must show that the laying of the buoy mooring by Pasminco is tortious conduct which will, if allowed to occur, cause them damage in the enjoyment of their rights in the seas and submerged lands at the proposed site. As against Queensland, the applicants must seek declaratory relief on the ground that the grant of a buoy mooring authority under the Marine Safety Regulation is an invalid act because it is a future act which the NTA does not otherwise provide for: s 24OA of the NTA.
34. The minimum factual basis which the applicants must establish, on the balance of probabilities, in order to sustain the final relief claimed on the basis of a right to protect and enforce native title in the proposed site or to make out the elements of the definition of future act, are that:
(a) the applicants are the holders of native title or native title rights and interests within the meaning of s 223 of the NTA with respect to the seas and submerged lands at the proposed site;
(b) the nature, content and extent of the native title or native title rights and interests at the proposed site as proved and found are such that the granting of an authority to lay, or the laying of the buoy mooring, would detrimentally interfere with the existence, enjoyment or exercise of those rights.
35. Registration of the applicants’ claim on 18 March 1996 and a description of the native title or native title rights and interests claimed therein does not prove, to the requisite degree, the necessary factual circumstances set out in (a) and (b) above. The applicants did not attempt to prove by any means the matters in (a) and (b) and expressly conducted the application on the basis that it was unnecessary to do so.
36. Having failed to prove up the requisite factual circumstances, the applicants fail to prove that the laying of the buoy mooring is a threatened tortious act entitling them to injunctive or declaratory relief against Pasminco. Similarly, such a failure means that there is no basis to find that the granting of a buoy mooring authority under the Marine Safety Regulation and the laying of the buoy mooring in pursuance of such an authority is, or would be, a ‘future act’ within the meaning of s 233(1) of the NTA on the part of either Queensland or Pasminco. Absent such a finding, the NTA does not deal with such acts: s 24AA(1). And, no basis for a declaration of invalidity in respect of any act or proposed act is made out.
37. The applicants’ alternate basis for relief is based on them having sufficient standing to enforce by declaratory and injunctive relief against Queensland and Pasminco, the proper exercise by the issuing authority of the power under State legislation to grant an authority to lay the buoy mooring, and, as against Pasminco to restrain it laying the buoy mooring in contravention of applicable State statutes.
38. Pasminco submits that the applicants do not have standing to bring such an action. In my view the fact of the native title claim, and the evidence of the dealings between Pasminco and the applicants and their representatives in relation to the seas and submerged lands in and around the proposed site, is sufficient to show that the applicants have an interest in the subject matter of the application which is greater than other members of the public sufficient to constitute a special interest as discussed and applied in Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27; see also Carpentaria Land Council Aboriginal Corporation v Qld (1998) 83 FCR 483 at 498-500.
39. Irrespective of standing to bring the proceedings, the question of the jurisdiction of this Court to entertain them remains.
40. The applicants submit that this Court has jurisdiction to hear and determine the matters arising on this application because they are matters arising under the NTA or are so intimately related to the matters which do arise under the NTA, as to fall within the accrued or associated jurisdiction of the court.
41. I doubt whether the issues raised on the notice of motion, in contrast to the issues for determination of native title in proceedings QG207 of 1997, are issues arising under the NTA for the purposes of s 213(2) of the NTA. The NTA provides for the making of determinations as to the existence of native title. The NTA also provides for specific circumstances where jurisdiction is given to this Court under the NTA. Otherwise, the NTA does not deal with the ascertainment or enforcement of native title rights by curial process. The protection which the NTA gives to native title is protection ‘in accordance with’ the NTA (s 10). If actual or claimed native title rights are sought to be enforced or protected by Court order, the party seeking protection must take proceedings in a Court of competent jurisdiction: Fejo at 120-1. Since the decision of the High Court in Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 73 ALJR 839 this Court has no jurisdiction by virtue of a legislative cross-vesting scheme investing this Court with the jurisdiction of the Supreme Court of Queensland. The application brought by the applicants, as I have stated above, is one seeking to enforce, as against Queensland and Pasminco, the taking of procedural steps in terms of s 24HA(7) and s 24NA(8) or either of them, in respect of the doing of an act in or in respect of the proposed site or to enforce native title or native title rights and interests against the respondents. It is not an application on either basis which is provided for under the NTA. On either basis, the issue is whether or not native title exists in the proposed site, and if so, whether it gave rise to the rights claimed such as to entitle those rights to protection by injunctive and declaratory relief.
42. Whether native title exists or not is not dependent upon the operation of the NTA or a determination under the NTA. Nor, is enforcement of native title dependent upon federal laws. In the present case the respondents do not raise the NTA or any provision of it as grounding a defence to the claims of the applicants raised on the notice of motion. In these circumstances there are serious doubts that the issues raised on the notice of motion fall within s 213(2) of the NTA as matters arising under the NTA: LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 at 581; Re McJannet, Ex parte Australian Workers’ Union of Employees (Q) (No 2) [1997] HCA 40; (1997) 189 CLR 654 at 656-7. The only possible matter that may arguably be said to be a matter arising under the NTA, is whether the grant of an authority under the Marine Safety Regulation, and the laying of a buoy mooring pursuant to such authority, is or would be a future act within the meaning of s 233 of the NTA to which Div 3 of Pt 2 applies. However, it is unnecessary to form a concluded view on this issue.
43. I am satisfied that the questions of whether or not the grant, or any proposed grant of an authority to lay a buoy mooring at the proposed site, complies or will comply with the requirements of the State law, or whether Pasminco proposes to act in contravention of the State law are not matters intimately related to the issue of whether the acts complained of are future acts as defined by s 233 of the NTA. Enforcement of the State law simplicitur is in substance a disparate and independent matter to any matter arising under the NTA. The definition of ‘future act’ in s 233(1)(c)(i) requires that other than for the provisions of the NTA the act validly affects native title in relation to land or water to any extent. That is, that the acts are valid under relevant State legislation. If the act is unlawful for whatever reason under State law, no question of its validity for any purpose arises under the NTA. To make out the existence of a future act as defined in the NTA, the applicants must make out as part of their claim, that the act or acts complained of, apart from the NTA, are valid acts which affect native title. To seek to prove to the contrary is inconsistent with there being a real and substantial connection with the matters arising under the NTA.
44. The alternative claim does not satisfy the requirements of a matter falling within the associated or accrued jurisdiction of this court: for the relevant principles see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457 at 473-5, 512, 520; Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570 at 608.
45. Nothing which I have said should be read as doubting the jurisdiction to grant interlocutory relief in aid of proceedings brought in this Court for the determination of native title. This motion was not litigated as such a case.
46. The applicants have failed to make out an entitlement to the relief claimed.
47. There is no reason why costs should not follow the event.
1. The application is dismissed.
2. The applicants to pay the respondents to the notice of motion their costs of and incidental to the notice of motion, including reserved costs, to be taxed if not agreed.
Counsel for the Applicant:
J Basten QC with R Howie
Solicitor for the Applicant:
Andrew Chalk & Associates
Counsel for the First Respondent:
D Mullins SC with S McLeod
Solicitor for the First Respondent:
Crown Law
Counsel for the Second Respondent:
J Bond
Solicitor for the Second Respondent:
Australian Government Solicitor
Counsel for the Third Respondent:
H Fraser QC with D O’Brien
Solicitor for the Third Respondent:
Blake Dawson Waldron
Counsel for the Fourth Respondent:
G Hiley QC
Solicitor for the Fourth Respondent:
Gore Solicitors
[1] The text of the judgement is also available at <www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal%fct/1999/1633.html