Ure v Commonwealth of Australia and Director of National Parks

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: Yates J
• Judgment Date: 17 March 2015
• Date: 17 March 2015

([2015] FCA 241)

Australia, Federal Court.

(Yates J)

Ure

and

Commonwealth of Australia and Director of National Parks1

Territory Acquisition of sovereignty Islands Whether international law permitting acquisition of sovereignty over terra nullius by an individual Whether State acquiring sovereignty over territory obliged to recognize existing private ownership

Relationship of international law and municipal law Justiciability of international law issue in municipal courts Act of State doctrine Whether mere allegations of an act of State rendering a matter non-justiciable

Human rights Property rights Customary international law Whether a private individual can obtain proprietary rights under customary international law in terra nullius through occupation Whether a State acquiring sovereignty over terra nullius must recognize and give effect to subsisting property rights under customary international law The law of Australia

Summary:3The facts:The applicant, Ms Ure, commenced proceedings against the respondents, the Commonwealth of Australia (the Commonwealth) and the Director of National Parks, claiming full property rights in the Elizabeth Reef and Middleton Reef and the adjacent waters and seabed (together, the Islands). The applicant alleged that prior to 19 March 1970, the Islands were terra nullius and res nullius and that the property rights acquired by the applicant's predecessor in title, Mr Ure, for himself and on behalf of Mr Chan on or about 19 March 1970 survived the Commonwealth's subsequent acquisition of sovereignty over the Islands.

The applicant contended that these property rights were acquired under customary international law. She alleged that, prior to 19 March 1970, no State, including the Commonwealth, had acquired or claimed jurisdiction or sovereignty over the Islands, no State or person had acquired or claimed any proprietary interest in or over the Islands, the Islands were not the common heritage of mankind and the various acts of the Commonwealth to purport to acquire certain property rights in respect of the Islands were invalid and ineffective. First, she contended that, under customary international law, a private individual could obtain proprietary rights in terra nullius through the act of occupation. Second, the applicant contended that a State that acquired sovereign rights over terra nullius had to, as a matter of customary international law, recognize and give effect to private property rights that existed at the time the State acquired such sovereign rights.

Held:The applicant's claim was dismissed.

(1) It was open to the Court to inquire into whether the acts pleaded by the respondents had occurred, to consider the legal nature and effect of each such act, whether each such act was an act of State and if such act was of a kind by which sovereignty or a relevant right was acquired. A mere contention that the Commonwealth claimed and acquired jurisdiction, sovereignty or sovereign rights did not render the issue non-justiciable (paras. 1577).

(2) The relevant proprietary rights claimed by the applicant were to be considered property rights as recognized under international law and not under domestic law. There was no rule of customary international law that an individual could, by occupation, acquire rights over terra nullius. Further, there was no rule of customary international law that a State that acquired sovereign rights over terra nullius had to recognize and give legal effect to any private property rights already in existence at the time the State acquired such sovereign rights (paras. 78155).

The following is the text of the judgment of the Court:

1. A special case has been filed which contains certain questions reserved for the consideration of the Court: rr. 30.01 and 38.01 Federal Court Rules 2011 (Cth) (FCR).

BACKGROUND

2. Elizabeth Reef and Middleton Reef are located in the Tasman Sea, approximately 600 km or 324 nautical miles east of Coffs Harbour, New South Wales. Elizabeth Reef is at, approximately, latitude 29 57S and longitude 159 3 E. Middleton Reef is at, approximately, latitude 29 28S and longitude 159 6E. In these reasons, in conformity with the parties' pleadings, I will refer to Elizabeth Reef and Middleton Reef, and the adjacent waters and seabed, as the Islands.

3. In the principal proceeding, the applicant claims to be the owner of the full proprietary rights in the Islands and adjacent waters and seabed (Property Rights), which were originally acquired by her predecessor in title, Alexander Francis Ure, for himself and on behalf of Michael Chan, on or about 19 March 1970. The applicant has identified the acts on which she relies for the alleged acquisition. It is not necessary to detail them here. However, it is important to note that the applicant argues that these rights were acquired under customary international law.

4. In her amended statement of claim filed on 16 July 2013 (Amended Statement of Claim), the applicant alleges that, prior to 19 March 1970:

• No State, including the Commonwealth of Australia (Commonwealth) had acquired or claimed jurisdiction or sovereignty over the Islands (para. 5).

• No State or person acquired or claimed any proprietary interest in or over the Islands (para. 6).

• The Islands were not the common heritage of mankind (para. 6).

5. Thus, the applicant alleges, the Islands were, prior to 19 March 1970, terra nullius and res nullius (paras. 5 and 6).

6. The applicant accepts that, at some time after 19 March 1970, the Commonwealth acquired sovereignty over the Islands. The applicant says that the precise time of acquisition is not important for present purposes. That said, the applicant suggested in oral submissions that, subject to certain findings being made, the first assertion of sovereignty by the Commonwealth over the Islands was in 1997 when the preamble to the Coral Sea Islands Act 1969 (Cth) was amended by the Environment, Sport and Territories Legislation Amendment Act 1997 (Cth) so that the Islands were for the first time said to be territories acquired by the Commonwealth. The correctness of that proposition is not now before me for decision. Of present importance is the applicant's allegation that no State, including the Commonwealth, acquired or claimed jurisdiction over the Islands prior to 19 March 1970. The applicant alleges that the Property Rights originally acquired by Mr Ure and Mr Chan on or about 19 March 1970 survived the Commonwealth's acquisition of sovereignty and are property within the meaning of s. 51(xxxi) of the Constitution (paras. 11 and 12).

7. The applicant further alleges that, by various legislative acts, the Commonwealth purported to acquire certain property rights in respect of the Islands. She alleges that, for various reasons, these acts were invalid and are ineffective (paras. 1334).

8. The applicant claims a range of declaratory relief, including a declaration that she is the owner of the Property Rights.

9. So far as relevant to the special case, the respondents (the Commonwealth and the Director of National Parks) make the following allegations in their amended defence filed on 22 October 2013 (Amended Defence):

• As at 19 March 1970, the Commonwealth had claimed and acquired jurisdiction, sovereignty and/or sovereign rights over the Islands (para. 5.1).

• By various acts, the Commonwealth had claimed and acquired jurisdiction, sovereignty and/or sovereign rights over the Islands by no later than 19 March 1970 (para. 5.2).

• Any allegation that the Commonwealth had not claimed or acquired jurisdiction or sovereignty or sovereign rights over the Islands at any time prior to 19 March 1970 is not justiciable (para. 5.3).

• By certain particularised Orders in Council, the British Government asserted jurisdiction over Her Majesty's subjects and in certain circumstances, other persons, within an area including Middleton and Elizabeth Reefs, at least by 1893 (para. 5.5).

• The allegation that any other State had not claimed or acquired jurisdiction or sovereignty over the Islands at any time prior to 19 March 1970 is also not justiciable (para. 5.4).

10. Further, the respondents allege:

• Whether or not the Commonwealth had claimed and acquired jurisdiction, sovereignty and/or sovereign rights over the Islands as at 19 March 1970, it had done so prior to 11 December 1987 and that, upon such acquisition, the Commonwealth acquired proprietary rights over such areas of the Islands as are capable of being the subject of proprietary rights according to the common law of Australia (para. 11.2.2).

• Any allegation that the Commonwealth had not claimed or acquired jurisdiction or sovereignty or sovereign rights over the Islands at any time prior to 11 December 1987 is not justiciable (para. 11.2.3).

11. In later paragraphs of these reasons, I will refer in more detail to the particulars of paragraphs 5 and 11 of the Amended Defence.

THE QUESTIONS

12. The first question reserved for consideration is:

Given:

• (a) the claim of the applicant in paragraph 5 of the Amended Statement of Claim, that at no prior time prior to 19 March 1970 had any state, including the Commonwealth, acquired or claimed jurisdiction or sovereignty over the Islands (as defined in the pleadings), and the Islands were accordingly terra nullius; and

• (b) the response of the Commonwealth in paragraphs 5 and 11 of the Amended Defence:

  If the Commonwealth were to establish the particulars pleaded in paragraphs 5.2.15.2.13, 5.5.15.5.2 and 11.2.2.111.2.2.10 of the Amended Defence or in any event, is any allegation that the Commonwealth, or any other State, had not claimed or acquired jurisdiction, sovereignty and/or sovereign rights over the Islands at any time prior to 19 March 1970 or thereafter, justiciable in an Australian court?

13. The second question reserved for consideration is:

If the applicant were to establish the allegations contained in paragraphs 3 to 6 of the Amended Statement of Claim; the particulars to...