Gamogab v Akiba

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 18 July 2007
• Neutral Citation: [2007] FCAFC 74

FEDERAL COURT OF AUSTRALIA

Gamogab v Akiba [2007] FCAFC 74

NATIVE TITLE – joinder of respondent – where national of Papua New Guinea – refusal on discretionary grounds – nature and extent of discretion where interests may be affected by native title determination – whether exercise of discretion miscarried – where interests not recognised under Torres Strait Treaty – whether political question involved for court – whether claim justiciable – whether interest properly identified and shown to be affected – possible relevance of Torres Strait Act

PRACTICE AND PROCEDURE – appeal from the exercise of a discretion – nature and extent of discretion – discretion not at large – discretion miscarried

Federal Proceedings (Costs) Act 1981 (Cth)

Native Title Act 1993 (Cth) ss 66, 84, 85A, 223, 224, 225

Torres Strait Fisheries Act 1984 (Cth) ss 3, 8

Torres Strait Treaty (Miscellaneous Amendments) Act 1984 (Cth)

Treaty Between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters, signed on 18 December 1978 (Sydney). (1978) Aust TS 1985 No 4. (entered into force 15 February 1985) Articles 2,3,4,10,11,12,13

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Cited

Akiba & Others on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 2) (2006) 154 FCR 513 Reversed

Akiba & Others on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 3)[2007] FCA 39 Cited

Bishop v Bridgelands Securities (1990) 25 FCR 311 Cited

Buttes Gas & Oil Co v Hammer (No 3) [1982] AC 888 Applied

Byron Environment Centre Inc v The Arakwal People (1997) 78 FCR 1 Cited

E I Du Pont De Nemours & Co v Commissioner of Patents (No5) (1989) 87 ALR 491 Cited

Gerhardy v Brown (1985) 159 CLR 70 Cited

Her Majesty’s Attorney-General in and for the United Kingdom v Heinemann Publishers Australia Proprietary Limited (1988) 165 CLR 30 Referred to

Kokatha Native Title Claim v South Australia & Others (2005) 143 FCR 544 Considered

Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 Cited

News Ltd v Australian Rugby Football League Ltd(1996) 64 FCR 410 Cited

Oetjen v Central Leather Co (1918) 246 US 297 Referred to

Petrotimor Companhia de Petroleos Sarl v Commonwealth of Australia (2003) 126 FCR 354Considered

Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 83 ALR 265 Considered

The Queen v Carroll [2002] HCA 55 Cited

H. Burmester, The Torres Strait Treaty: Ocean Boundary Delimitation by Agreement’, American Journal of International Law, vol 76, no 321, 1982, pp 329-30

PENDE GAMOGAB v LEO AKIBA, GEORGE MYE, THE STATE OF QUEENSLAND AND COMMONWEALTH OF AUSTRALIA

QUD 361 OF 2006

KIEFEL, SUNDBERG, GYLES JJ

18 JULY 2007

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 361 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PENDE GAMOGAB Appellant
AND:	LEO AKIBA First Respondent GEORGE MYE Second Respondent THE STATE OF QUEENSLAND Third Respondent COMMONWEALTH OF AUSTRALIA Fourth Respondent

JUDGES:	KIEFEL, SUNDBERG, GYLES JJ
DATE OF ORDER:	18 JULY 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The order dismissing the application for joinder is set aside.

3. The matter is remitted to the primary Judge for determination as to whether terms should be imposed upon joinder of the appellant and, if so, what those terms should be.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 361 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PENDE GAMOGAB Appellant
AND:	LEO AKIBA First Respondent GEORGE MYE Second Respondent THE STATE OF QUEENSLAND Third Respondent COMMONWEALTH OF AUSTRALIA Fourth Respondent

JUDGES:	KIEFEL, SUNDBERG, GYLES JJ
DATE:	18 JULY 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

KIEFEL J:

1 The first and second respondents are the surviving persons who applied for a native title determination on behalf of the Torres Strait Regional Sea Claim Group (‘the Claim Group’) which comprises communities of islanders in the Torres Strait. The appellant is a Papua New Guinea (‘PNG’) national and lives at Kupere Village in the South Fly District. He applied, unsuccessfully, to the Court for an order joining him as a respondent to the Torres Strait Regional Seas Claim (Akiba & Others on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 2) (2006) 154 FCR 513). His application was said to have been made on behalf of the Dangaloub-Gizra group. The appellant claimed traditional rights and interests with respect to the Torres Strait Regional Claim Area.

2 The application for native title determination is brought under the Native Title Act 1993 (Cth) (‘the NTA’). The recognition given by the NTA to native title rights and interests is limited to those held by Aboriginal people or Torres Strait Islanders: see ss 223 and 224(1). Nevertheless, the appellant sought joinder to the proceedings in order to assert his group’s interests. Section 84(5) of the NTA, provides:

‘(5) The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.’

3 French J found that the appellant had a relevant interest, which may be affected by a determination in favour of the Claim Group, but declined to make an order for joinder, in the exercise of the discretion given by subs (5). The appellant had sought recognition of his group, as traditional inhabitants, from PNG and Australia in accordance with a Treaty entered into between those countries concerning the Torres Strait. His Honour was concerned with the appellant’s use of the proceedings in connexion with that recognition. In his Honour’s view that question was one for the governments of PNG and Australia.

THE TREATY

4 The Treaty in question is the Treaty Between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters, signed on 18 December 1978 (Sydney). (1978) Aust TS 1985 No 4. (entered into force 15 February 1985) (‘the Treaty’). The application for native title determination appears to have been drafted by reference to areas of jurisdiction identified in the Treaty. The Treaty is therefore a convenient starting point. It provides a context for the matter before the Court although it is not determinative of it.

5 Article 4 of the Treaty deals with ‘Maritime jurisdiction’. The seabed jurisdiction involves sovereign rights over the continental shelf, including over low-tide elevations, in accordance with international law; and the fisheries jurisdiction refers to sovereign rights for the purpose of exploring and exploiting and conserving and managing fisheries resources, other than sedentary species. The Article gives map co-ordinates for a seabed jurisdiction line and a fisheries jurisdiction line. A review of the co-ordinates provided as Annexures to the Treaty suggests that, for the most part, the lines run together and form a single boundary. This appears to be borne out by a map accompanying the Treaty which is set out below, which refers to the ‘Seabed Jurisdiction line and the Fisheries Jurisdiction line’. The result is that in the area to the north of the boundary effected, PNG has sovereign rights, in the nature of both seabed and fisheries jurisdiction. Australia has those jurisdictions with respect to the area to the south of those lines. It is not necessary in this case to consider whether, and the extent to which, the ‘sovereign rights’ referred to are less than sovereignty.

6 An exception to the common boundary, providing both jurisdictions to the one country, is the area to the north which encompasses Boigu, Saibai, Turnagain and other islands. This is referred to as the Top Hat area in the application for native title determination. In this area, the fisheries jurisdiction line runs north from the seabed jurisdiction line to create a discrete area. This may account for the distinction maintained in the text of the Treaty (and later in the Torres Strait Fisheries Act 1984 (Cth)) between the seabed and the fisheries jurisdiction lines. The result of the separation of the lines of jurisdiction in this area, without more being said, would appear to be that Australia’s fisheries jurisdiction is intended to co-exist with PNG’s seabed jurisdiction. Article 4.3 of the Treaty refers to this area as having a ‘residual jurisdiction’, which is not to be exercised without the concurrence of the other Treaty Party. It is not necessary to further refer to the definition of that jurisdiction, save to observe that it relates to rights other than those associated with the other two jurisdictions.

7 Article 2 deals with the recognition of the sovereignty of islands. Pursuant to Art 2.1, PNG recognises Australia’s sovereignty of certain named islands, including those in the Top Hat area, and of all islands lying between the mainlands of the two countries and south of the seabed jurisdiction line. Sovereignty over an island is said to include sovereignty over its territorial sea, the...