Do the rights of Indigenous people to traditional ceremonies on traditional lands comprise ‘property’? Two CLA members asked to appear as ‘friends of the court’ on the question as part of a High Court case involving the NT ‘intervention’ of 2007, but permission was declined by a majority decision.
High Court denies ‘friends’ application re property
Two CLA members, Professor Kim Rubenstein and Ernst Willheim, applied to the High Court recently to make submissions as amici curiae (friends of the court) in Wurridjal v The Commonwealth.
The plaintiffs, two Aboriginal ‘traditional owners’ and an Aboriginal corporation, claimed the compulsory five-year leases of Maningra land under the Northern Territory National Emergency Response Act 2007 and associated legislation constituted an acquisition of property otherwise than on just terms. The property claimed to be acquired included the plaintiffs’ right to participate in ceremony on identified sacred sites.
The Commonwealth contended that the just terms requirement in s51(xxxi) of the Constitution) did not apply in the Northern Territory and that the species of property relied upon by the plaintiffs were not property within the meaning of s51(xxxi).
In support of their amici curiae application, Rubenstein and Willheim submitted, inter alia:
- their submissions would assist the court in relation to a new and unsettled area of law;
- their submissions would provide the court with relevant principles and authorities not presented to the court by the parties; and
- the court’s decision may affect the rights of other persons not parties to the proceedings.
They also submitted the court should have regard to its law-making function as Australia’s final appellate court and to the practice of other final courts of appeal in other common law jurisdictions in allowing amicus curiae submissions.
The proposed amici submissions included international human rights instruments recognizing the special rights of indigenous people to culture and ceremony and decisions of international bodies dealing with infringement of such rights. The proposed submissions concluded that these materials showed that the rights of indigenous peoples to pursue their religious, spiritual and cultural practices have been recognized internationally as important legal rights. It was submitted that the materials would assist the court in resolving an issue in dispute between the parties, whether the right to participate in ceremony on sacred sites constitutes property for the purposes of s51(xxxi).
The High Court dismissed the amici application by majority (Kirby and Crennan JJ dissenting).