Margarula v Rose
31 July, 1 August and 16 November 2000 - Angel, Thomas and Bailey JJ

On 1 September 1998 the appellant was found guilty in the Court of Summary Jurisdiction of having trespassed unlawfully on enclosed premises, namely a large storage container owned by Energy Resources of Australia, contrary to s.5 of the Trespass Act. The trespass took place on a container situated on the Jabiluka Mineral Lease on 19 May 1999. The magistrate found that the storage container was land. The appellant was convicted and ordered to pay a $500.00 fine and $20.00 victim levy. The appellant was a traditional Aboriginal owner of the relevant land for the purposes of the Aboriginal Land Rights (Northern Territory) Act.

She appealed her conviction to the Supreme Court on the following grounds:

1. the court erred in finding that at the time of the alleged offence the appellant was not acting in accordance with her entitlements under s.71(1) of the Aboriginal Land Rights (Northern Territory) Act

2. the court erred in having regard to the painting of a slogan on the container in determining whether the appellant's actions had interfered with ERA's enjoyment of its estate or interest in the land

3. the court erred in finding that the appellant's actions interfered with ERA's enjoyment of its estate or interest in the land

4. the court erred in finding that the appellant's actions were unlawful despite her belief as to her right to be on the land

5. the court erred in regarding as an aggravating factor, that the appellant's intention in entering the land was to ventilate her claim of entitlement or her beliefs.

On 12 March 1999 the Supreme Court dismissed the appeal.

The unsuccessful appellant appealed to the Court of Appeal. The respondent filed a notice of contention challenging the magistrate's finding that the container was land. The grounds raised three issues:

1. whether the rights conferred on the appellant by s.71 of the Aboriginal Land Rights (Northern Territory) Act authorised her to be on the land subject to the Jabiluka Mineral Lease such that the appellant could not trespass on it for the purposes of s.5 of the Trespass Act; and

2. even if the appellant was a trespasser, whether the learned magistrate could be satisfied beyond reasonable doubt that she had no honest belief that she was entitled to take the action taken by her

3. if the container was a chattel, the prosecution had failed to prove beyond reasonable doubt that under the terms of the agreement and the lease, ERA was entitled to place the container where it had.

The court unanimously dismissed the appeal holding that the magistrate was in error in characterising the container as land for the purposes of s.71 of the Aboriginal Land Rights (Northern Territory) Act. The court found that the container remained a chattel from first to last and because the lawfulness (or otherwise) of ERA placing the container within the boundaries of its (valid) mineral lease was never a matter in dispute before the magistrate it was not an issue that could be raised before the Court of Appeal. This finding effectively disposed of grounds 1 and 3 given that s.71 of the Aboriginal Land Rights (Northern Territory) Act is limited to rights concerning the entry, occupation and use of land.

In relation to ground 2, the court was satisfied (assuming that s.30(2) of the Criminal Code did apply to an offence against s.5 of the Trespass Act) that no defence of honest claim of right was available to the appellant on the evidence. The court endorsed the findings of the magistrate and the judge below that on the evidence given by the appellant before the magistrate she did not have the relevant genuine belief.