FEDERAL COURT OF AUSTRALIA

Banjima People v State of Western Australia (No 2) [2015] FCAFC 171

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 29 June 2015 be dismissed.

2.    The parties file agreed or competing proposed orders reflecting the reasons for judgment published on 12 June 2015 within seven days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 29 June 2015 be dismissed.

2.    The parties file agreed or competing proposed orders reflecting the reasons for judgment published on 12 June 2015 within seven days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The application

1    By its interlocutory application filed on 29 June 2015, the State of Western Australia seeks orders that the Full Court reconsider its reasons for judgment published on 12 June 2015 in Banjima People v State of Western Australia (2015) 231 FCR 456; [2015] FCAFC 84 (the principal reasons). The only orders made consequential on those reasons were that the parties file an agreed minute of orders and amended determination of native title reflecting the principal reasons for judgment within 14 days.

2    The application is made in respect of the Full Court’s reasons for rejecting the State’s grounds of appeal 1(c) and 4. As identified at [3] in the principal reasons those grounds were as follows:

1. In determining that native title rights of exclusive possession exist in relation to the Exclusive Area as defined in the Determination of Native Title (Determination of Native Title, paragraph 4, Schedule 1.2), the Court:

…

(c) erred in law by failing to consider whether there was sufficient acknowledgement and observance of normative laws and customs giving rise to and sustaining rights of exclusive possession since the establishment of British sovereignty over the Determination Area (Reasons for Judgment, [685]-[687], [689], [698]) and erred in law and fact by failing to find that there was insufficient evidence of any such acknowledgement or observance.

…

4. The Court erred in law in ruling that prospecting licences and exploration licences under the Mining Act 1978 (WA) were not ‘permission[s] or authorit[ies] … under which … part of the land or waters in the area is to be used for public purposes or for a particular purpose’ pursuant to s 47B(1)(b)(ii) of the Native Title Act 1993 (Cth) and erred by not determining instead that there were no areas to which s 47B of the Native Title Act applied (Determination of Native Title, Schedule 4.2).

Ground 1(c)

3    Ground 1(c) is dealt with in the principal reasons at [8]-[47]. The Full Court at [8] explained that:

The State’s fundamental proposition in respect of grounds 1(a) and 1(c) is that the Determination, insofar as it grants to the Banjima People a right of exclusive possession (see paras 4(a) and (c) of the Determination above), is not supported by the primary judge’s findings about the traditional laws and customs of the Banjima People.

4    We rejected this proposition. In particular we found that:

(1)    “…the State’s characterisation of the custom found by the primary judge is inappropriately selective” (at [17]).

(2)    The primary judge “found not only an expectation by the Banjima People that others would seek permission to enter, but also a “need” (at [686]) for them to do so” (at [18]). This involved “an imperative binding on Banjima People and other Aboriginal people wishing to enter Banjima country” (also at [18]).

(3)    “… the primary judge did not find that the only reason for the custom was to protect people from the spiritual dangers of Banjima country” but also found that the custom ensured that “sacred or religious sites created in the Dreaming are not violated” (at [19]).

(4)    “… the State’s submission that there was “minimal” evidence of persons actually seeking permission from the Banjima People is … unfounded” (at [21]).

(5)    Insofar as the evidence concerned Europeans, the Banjima People “had no capacity whatsoever to enforce their laws and customs against Europeans” (at [21]).

(6)    In any event, “Europeans stood outside the universe of traditional laws and customs” which were concerned with indigenous peoples (citing, in support, Griffiths v Northern Territory of Australia (2007) 165 FCR 391; [2007] FCAFC 178 at [127] (Griffiths)) (at [21]).

(7)    Accordingly, “the conduct of Europeans in not seeking permission and not heeding the spiritual dangers of Banjima country or respecting sacred or religious sites created in the Dreaming says nothing about the acknowledgment and observance by Banjima and other traditional societies of Banjima traditional laws and customs” (at [22]).

5    The State contended that it did not anticipate (and could not have done so) that the Full Court would rule that the efficacy of the custom for the exclusion of Europeans would be found irrelevant to the question whether the right exists to exclude Europeans. Further, it argued that the Full Court overlooked the fundamental tenet that as a determination can only reflect rights founded in traditional laws and customs and cannot create rights so that para 4 of the Determination cannot be sustained because it grants rights of exclusive possession enforceable “as against the whole world”.

6    We reject the State’s contentions.

7    The State relied on the alleged lack of enforcement of the traditional laws and customs against Europeans as support for its ground 1(c). In its written submissions the State said, amongst other things, that there was “ample evidence” of Europeans entering Banjima country without the custom being brought to their attention. In their written submissions the Banjima People said that it was the existence of the right to exclude, not the exercise of the right, which was critical. In oral submissions the relevance, if any, of those not part of the relevant belief system failing to honour that system was expressly raised. The transcript of the hearing includes the following exchanges:

•    MR PETTIT: No, no, your Honour. Let me be absolutely – it was absolutely insufficient to establish a right to exclude the world – absolutely insufficient.

KENNY J: But which world?

MR PETTIT: Any world.

KENNY J: I can understand that you refer to European settlement as not within – not honouring the law. That’s one thing. That has a different significance. But those within the belief system did, on what you’re telling me, honour it. At least you’re not saying that evidence of honouring it was insufficient so far as observance went.

MR PETTIT: I am saying that it was insufficient.

•    MANSFIELD J: Well, you’re going to a very general proposition: undiminished for 100 years. People have been ignoring the accountability to comply with the expectation. Do you, as you did at one point, have regard to or rely on the European mining activities to support that proposition or can we put them aside and really look at what those in the belief system have or have not done or been shown to do? I mean, are you going to say these people haven’t established the continuity because they’ve been lying under the wheels of the graders? Serious question. I’m just wanting to know how you’re putting it.

MR PETTIT: The determined right must match the evidence. The determined right is to exclude all those miners, all those white folk.

•    RARES J: So it was effective. It may not be effective for Europeans who don’t believe in this sort of thing but, that’s not – neither here nor there. this is the court saying you’re not dealing with it in the common lawyer’s characterisation, you’re dealing with it in understanding what the custom

MR HUGHSTON: Yes…

…

MR HUGHSTON: It is unrealistic to expect that the Banjima people could show that they have somehow prevented European people, whether they be miners, pastoralists or whatever, from coming onto their country at a time when our law did not recognise that they had rights and interests at all in their country. They couldn’t go to court and get a court order and if they tried to keep people away by physically harming them, there would have been repercussions.

So it’s perfectly explicable, if you like, that they have been unable to prevent European people from coming onto their country, but what they have done is they have continued to acknowledge and observe those laws and customs under which they believe they still possess this right under their law and custom to say whether people can or cannot come onto their country. And other Aboriginal people know that law or custom and they acknowledge and observe it too. We have a system operating not just with Banjima society but with the surrounding societies as well where they are all continuing to acknowledge and observe each other’s laws and customs in terms of what they can and can’t do on their country. What the Native Title Act now does is to ensure that our law will now recognise that those indigenous rights and interests are good as against the whole world and not just against other indigenous people.

8    In the face of these exchanges the State’s submission that it could not have anticipated the issue of whether the traditional laws and customs of the Banjima People founded a right to exclude the whole world, including Europeans who had not sought permission because they were not part of the relevant belief system, is untenable. The State was on notice, throughout the hearing, that the evidence of Europeans not having sought permission might be considered irrelevant to the content of traditional law and custom consistent with the reasoning in Griffiths. The significance of Griffiths was raised on the first day of the hearing. When pressed, the State made plain its position that it was not submitting that Griffiths was wrongly decided (if read as the State contended it should be), only that it was distinguishable on the facts, a submission which we ultimately rejected (see [13] and [42] of our principal reasons).

9    Moreover, part of the very issue the State was raising, and which the Banjima People were called upon to answer during the course of the appeal, was how a determination under s 225 of the Native Title Act 1993 (Cth) (the Act) should reflect a custom which involved a capacity to exclude all persons who shared the relevant belief system. We dealt with this issue, which the State now seeks to re-agitate under the guise of an alleged denial of procedural fairness, at [27] of the principal reasons in these terms:

This leads to consideration of the State’s fundamental point that the primary judge’s findings fail to sustain the rights of exclusive possession granted by para 4 of the Determination. The mischaracterisation at the heart of the State’s contentions in this regard (that is, the State’s focus on the expectation found by the primary judge, as opposed to the need for permission to be sought, which his Honour also found) has already been discussed. There is, however, another difficulty. It lies in the State’s assumption that a traditional law or custom in which permission is needed from traditional owners for others to enter their country (being others within the universe of traditional laws and customs) cannot be recognised by the common law as a right of exclusive possession. This assumption is inconsistent with the reasoning in Griffiths (2007) 165 FCR 391; [2007] FCAFC 178.

10    At [41] we concluded that:

In the present case there was cogent evidence of acknowledgment and observance by the relevant people (the Banjima and other indigenous people) of the traditional requirement for permission. The law or custom found by the primary judge, of the need for permission, was properly based on this evidence. The primary judge’s conclusion that such a native title right or interest sustained the nature and extent of rights and interests set out in para 4 of the Determination was sound. A right to control access to land (para 4(c)) is the essence of a right to exclusive possession (para 4(a)) and to make decisions about the use of the land (para 4(b)). The terms of paras 4(a) and (b) of the Determination do no more than make express what is provided for in para 4(c).

11    The State’s submissions failed to engage with the principal reasons at [27]-[41] in making its submission that the Full Court overlooked the fundamental tenet that a determination of native title reflects rather than creates rights. We did not overlook that tenet; indeed, we intended the reasons at [27]-[41] to disclose that we understood and applied that fundamental tenet. The point that we made there was that the primary judge’s determination gave effect to rights founded in traditional law and custom. In the present case, the traditional custom proven to exist included the Banjima people’s capacity to exclude all persons from the land who were within the scope of the relevant belief system and who, practically, could be excluded. We found that, on this basis, the common law recognised a right of exclusive possession as against the whole world because such recognition properly reflected the traditional custom.

12    The real import of the State’s case, which it ran in the appeal and lost and now seeks to run again, is that there can only be rights of exclusive possession as against other indigenous peoples, not as against any person (that is, Europeans) who were never bound by any traditional custom. Apart from its inconsistency with Griffiths, that submission fails to recognise that the determination is to give effect to traditional law and custom immediately before sovereignty, where, and when insofar as relevant, the “whole world” (as the determination puts it) was comprised of indigenous peoples. The State’s submission thus fails to recognise that subsequent, post-sovereignty, conduct will be relevant to issues of continuity, adaptation, and possible abandonment of traditional laws and customs, but the mere fact of Europeans not having any regard to a traditional custom, in a context where native title rights were not recognised and could not be enforced as against Europeans post-sovereignty, does not necessarily say anything about the Banjima people’s continued observance and vitality of the traditional law and custom.

13    The evidence in the present case did not suggest that the traditional custom had been abandoned or adapted; the evidence was only that the traditional custom was not observed by Europeans and that the Banjima People had no capacity to make them observe it. Where, as here, Europeans stood outside the system of laws and customs found to exist, such non-observance by Europeans, without more (as was also the present case), did not undermine the custom or impinge on the scope of the right, exclusive possession good against the whole world, which reflects the custom.

14    For these reasons the State’s submissions that, had it been on notice of the issue, it would have been able to meet it and would have submitted that the right must match the custom are misconceived. The State was on notice of the issue and did seek to meet it based on precisely the same argument it now puts in support of the interlocutory application. We rejected that argument.

15    We reject also the State’s submission that if the issue is not reconsidered judges will have to accept that evidence as to non-Aboriginal people will be irrelevant “when the parties in that hearing had no opportunity to address the point, and relevant case law [was] not brought to bear” (citing Bodney v Bennell (2008) 167 FCR 84; [2008] FCAFC 63 (Bodney) at [97]). As we have noted, the State had ample opportunity to deal with the issue and did, in fact, deal with it. Insofar as Bodney at [97] is concerned, those observations support our view that European settlement is relevant to continuity, adaptation and possible abandonment of traditional laws and customs although the question why a traditional law or custom may have ceased or been adapted is immaterial. The relevant evidence in the present case was only that Europeans did not observe the traditional customs of the Banjima People. As we found in the principal reasons, that said nothing about existence and continuity of the Banjima people’s observance custom because Europeans were not part of the belief system and could not practically be prevented from accessing Banjima country no matter what the content of the traditional custom.

16    Moreover, the outcome in the present case does not mean that the evidence of non-Aboriginal people is necessarily irrelevant in all cases. Relevance will depend on the nature of the evidence and how it intersects with the continuance, adaptation or cessation of traditional laws and customs.

Ground 4

17    The State’s appeal ground 4 related to three parcels of unallocated Crown land (UCL 7, 9 and 42) over parts of which two exploration licences were in force at the time of the filing of the application for a determination of native title.

18    In its written submissions of 28 November 2014, the State argued that the primary judge had erred in his construction of s 47B(1)(b)(ii) by finding that neither exploration licence was a permission or authority under which any part of the area in UCLs 7, 9 and 42 “is to be used … for a particular purpose” (at [58]-[60]). The State’s written submissions argued that the words “is to be used” in s 47B(1)(b)(ii) meant “is permitted or authorised to be used” (at [64]) and that if ground 4 were “upheld, only extinguishment of exclusive possession will be affected” following which there was this footnote (at [67]):

The only prior interests are: (a) Oil Prospecting Area 20H and Permit to Explore 37H: Pt A Tab 34, [1948][1954][1984(44)]; (b) temporary reserve 70/1807: Pt A Tab 34, [1903]; and (c) historic pastoral leases 69/0034 and 69/0058: Pt A Tab 34, [1869][1871]-[1873]. They extinguished only exclusive possession. [Pt A Tab 34 was the primary judge’s reasons in the appeal book.] (Emphasis added.)

19    The primary judge’s reasons did not refer to the three UCL parcels or to the licences at any of the paragraphs mentioned in that footnote. Nor were we taken in the hearing to any of the identified prior interests or to any documents recording those prior interests. None of those documents were in the appeal books. The only documents referred to in oral argument on this point were extracts of mining tenement tenure searches of the two exploration licences that were annexed to a note by the State handed up in Court on the second day of the appeal on 25 February 2015. Thus, the only issue presented by the State’s argument was whether the two exploration licences in force at the time that the application was made met the criterion in s 47B(1)(b)(ii) of a “permission or authority, made or conferred by the Crown in any capacity … under which the whole or part of the land or waters in the area is to be used for … a particular purpose”. If that criterion were satisfied then s 47B did not apply to the three UCL parcels. If it did, subject to them also satisfying s 47B(1)(c), then s 47B(2) provided that any prior interest (other than the Crown’s in natural resources) in relation to the three UCL parcels had no effect on the Banjima people’s entitlement to a determination giving them exclusive possession of those lands and waters.

20    We summarised the State’s argument in the principal reasons at [87] as follows:

The State argued that the primary judge should have found that the licences fell within s 47B(1)(b)(ii) of the NTA so that all native title was extinguished over UCL areas 7, 9 and the whole, or the licensed part, of UCL area 42. It contended that the purpose of s 47B(1)(b)(ii) was “to avoid resurrecting native title in areas allocated for public or particular purposes”. The State submitted that the exclusion in s 47B(1)(b)(ii) should be given a very broad construction and did not mandate a requirement for any use to be made of the land or waters to which it applied. It argued that the expression “is to be used” meant “is permitted or authorised to be used”. It also contended that the Parliament could not have intended that native title would revive if the land or waters referred to in s 47B(1)(b)(ii) were used for more than one purpose.

21    We then said at [90]-[92] that we considered the construction of s 47B(1)(b)(ii) in Northern Territory v Alyawarr (2005) 145 FCR 442; [2005] FCAFC 135 (Alyawarr) at [187] to be correct.

22    The State conducted its case on the basis, and made the ambiguous submission that we have emphasised in [18] above, that “only extinguishment of exclusive possession will be affected” if the exploration licences met the criterion in s 47B(1)(b)(ii) that they were permissions or authorities under which the three UCL parcels were to be used for a particular purpose.

23    It was, and remains, unclear what, if any, consequence might flow in respect of any extinguishment of native title were s 47B not to apply to the three UCL parcels. The State conducted the appeal on the ambiguous footing that if the exploration licences excluded the operation of s 47B, then “extinguishment of exclusive possession will be affected”. Our reasons sought to address that argument in the context, as noted above, that first, none of the prior interests mentioned in the footnote to [67] of the State’s written submissions was in evidence or explored in oral submissions, secondly, only extracts of mining tenement tenure searches of the two exploration licences were in evidence, and, thirdly, no focus was given in the hearing to the exploration licenses other than them constituting the means by which native title rights to exclusive possession were extinguished. This ambiguity was reflected in our principal reasons.

24    The Banjima people also argued, in their appeal, that the primary judge had erred in his finding that other areas of unallocated Crown land had not been “occupied” within the meaning of s 47B(1)(c). The State contended that his Honour had been correct in this respect. Hence, we discussed the construction of s 47B as a whole in our principal reasons at [88]-[106].

25    We found at [111]-[118] that the effect of the grant of the exploration licences, for the purposes of s 47B(1)(b)(ii) on the evidence, was the same as that discussed in Alyawarr at [187] in that their purposes did not amount to a public purpose and we also found that they did not obligate licensees to use the whole of the licenced area. We found that the licences did not “require any identified portion of the licenced area to “be used” for any particular purpose” (at [114]). We concluded at [116]:

The grant of whatever rights the permission or authority in the licences conferred did not have the effect of necessarily interfering with the continued existence of the native title rights and interests over UCL areas 7, 9 and 42 identified by the primary judge’s orders giving effect to his determination of native title. The primary judge was correct to so conclude at [1204] of the reasons for judgment. Such rights as the licences conferred could continue to be exercised under s 47B(3)(a)(i) as a prior interest while the licences remained in force. (Emphasis added.)

26    In oral address, senior counsel for the State dealt squarely with the conclusion at which we arrived in the following passage (T 92-94):

MR PETTIT: The purpose is to look for minerals in both cases, prospecting and – that’s the purpose. It is a particular purpose. His Honour below found that. It’s not under challenge by either side. It is a particular purpose. I mean, there was some debate about whether it was also a public purpose because - - -

RARES J: Well - - -

MR PETTIT: - - - the State lends its authority in order to attract the business and the royalties. But whether or not it’s a public purpose, the court below – his Honour below found that it was a particular purpose and identified the purpose. So that doesn’t, with respect, appear to be in contest before your Honours. The only thing that’s in contest is whether you have to also show – we have to also show, in order to dis-apply section 47B, that a prospecting licence means the land can be used for no other purpose except that one – in other words, there can’t be any other mining on that land or no pastoral activity.

RARES J: Not just mining. You can’t do anything else on the land.

MR PETTIT: Yes.

RARES J: That’s what the Act says because the whole point is if you can do – if it leaves open other things, it’s not for a particular purpose. The land is not covered for a particular purpose. That’s what the – as I understand the Full Court decisions say.

MR PETTIT: Well - - -

RARES J: But I might be wrong. You can tell me I’m wrong or you can tell me they’re wrong.

MR PETTIT: - - - there’s no doubt that his Honour below found that, your Honour.

KENNY J: That seems to be the effect of the two Full Court authorities that have considered it, doesn’t it? Are you saying that that’s wrong? What Justice Rares has just put to you, do you say that that’s wrong?

MR PETTIT: Certainly we say it is wrong to say that the expression “is to be used” means “is to be used for the purpose granted and no other.” We say that is wrong and it’s for this reason among many others – two reasons but most important is that other parts of 47B also exclude its application where there is a pastoral lease or a lease. Now, it is absolutely common knowledge the court ought to take judicial notice of the fact that the majority of exploration and prospecting tenements in the state are coexistent with pastoral leases.

RARES J: They don’t give exclusive possession to either the pastoralist or the tenement holder. That’s the point. `

MR PETTIT: Got nothing to do with it, with respect. Absolutely nothing. Nothing in those disapplying provisions requires exclusive possession. None of proclamation, reservation. If they did – if any of those, your Honour, did require exclusive possession, we wouldn’t be having this debate because native title would be - - -

RARES J: Well, why wouldn’t we be having this debate? Isn’t that the beneficial way you construe, as the Full Court has held, narrowly the exception in 47B(1)(b)(ii), that is you construe it no wider than is necessary to give its effect and when it says “public purposes” or “a particular purpose” it is to be used for that purpose or those public purposes that are objectively identifiable and for no other so that it gives, in effect, any exclusive use and only that use to the land - - -

MR PETTIT: What your Honour is - - -

RARES J: - - - to deny any subsisting rights of native title?

MR PETTIT: What your Honour is proposing, with respect, would mean that the earlier provisions of 47B can’t – they can’t operate in - - -

RARES J: They’re not cumulative, they’re alternatives.

MR PETTIT: In – they - - -

RARES J: They’re alternatives, not cumulative.

MR PETTIT: What your Honour is suggesting is they could not operate serially. That is to say if – and they acted very clear that a pastoral lease – if there’s a pastoral lease at that date, you cannot have the revival of native title. It’s also perfectly clear that if you have a mining lease, section 47 can’t apply to revive native title. Those two things are expressly included as leases. What your Honour is proposing is for some new policy discernable only in paragraph 2, [i.e. s 47B(1)(b)(ii)] you can only have one such purpose.

RARES J: Well, I’m simply - - -

MR PETTIT: Now, that does not accord with the scheme of the provision, your Honour. And what public purpose could possibly be served by a provision that says, “If there’s only to be one use, say prospecting, the native title won’t be revived. But if you have got 50 exploration licences on the same land, native title will be revived.” What possible legislative objective could be served by that?

RARES J: Well, to preserve the native title rights against being extinguished, which is what the Act says. It has got a non-extinguishment principle in 238 - - -

MR PETTIT: I can’t take the matter any further. Thanks, your Honour.

(Emphasis added.)

27    This demonstrates that the State is now trying to reargue the very questions on which it had a full opportunity to, and did, address argument. At no point in its written or oral submissions did the State advance any clear or articulated argument that any of UCL 7, 9 and 42 had been subject to prior extinguishing acts that in some way operated to limit the plenary words of s 47B(2). The latter provision expressly required that, if s 47B(1) applied, then for “all purposes under this Act in relation to the application, any extinguishment” of native title “by the creation of any prior interest in relation to the area must be disregarded” (emphasis added).

28    Thus, s 47B(2), if engaged, required the Court to ignore any earlier affectation that might otherwise have detracted from a determination that the applicant had full traditional native title rights and interests over land or waters that fell within the words of s 47B(1). That is because, the chapeau to s 47B(1)(b) provided that the section applied to land and waters that, at the date that the application was made, was not in one of the three categories specified. Accordingly, such land and waters would be described accurately by the heading to s 47B (which is part of the Act under s 13(1) of the Acts Interpretation Act 1901 (Cth)) as “Vacant Crown land covered by claimant applications”.

29    However, in discussing the construction of s 47B in our principal reasons, we used expressions that addressed the State’s ambiguous submission in its own terms. In particular we said in this respect:

[79] The State challenged the primary judge’s finding that two exploration licences granted under the Mining Act 1978 (WA) (the Mining Act) had not extinguished native title over three areas of unallocated Crown land (described as UCL areas 7, 9 and 42) by force of s 47B(2) of the NTA (at [1312]). (Emphasis added.)

[112] Moreover, at the time of the grant of the licences, they did not create or confer a permission or authority under which any of the land or waters was “to be used … for a particular purpose”. A mere permission or authority to enter and be upon land or waters coupled with a discretionary power to determine when, and in what particular way and at what place that permission or authority might be exercised cannot, of itself, amount to a use of the land that is capable of extinguishing or partially extinguishing native title. No mechanical work for exploration purposes could be carried on without a further grant of permission or authority by the State. (Emphasis added.)

[115] It would be an odd result if the State’s argument were correct, namely that the grant of an exploration licence that conferred no more than a permission or authority to explore identified land and waters, including from the air, but excluded any immediate right to use ground disturbing equipment (s 63(aa)), wholly extinguished all native title rights and interests in such land and waters. (Emphasis added.)

30    In its submissions filed on 29 June 2015 in support of its interlocutory application, the State submitted (uncontroversially) that s 47B required a Court, in framing a determination of native title, to ““disregard” prior extinguishment of native title in certain circumstances” (at [7]). It also submitted however (at [11]):

In this case, the "permission" or "authority" in question comprised two exploration licences, and the prior extinguishing acts were historic pastoral leases and mining and petroleum tenements (In particular: (a) Oil Prospecting Area 20H and Permit to Explore 37H: Appeal Book PtA Tab 34, [1948][1954][1984(44)]; (b) temporary reserve 70/1807: AB Pt A Tab 34, [1903]; and (c) historic pastoral leases 69/0034 and 69/0058: Pt A Tab 34, [1869][1871]-[1873]). These prior interests extinguished only exclusive possession). It was not relevant to the Full Court exactly what those old extinguishing acts were, because 47B, if it applied, would disregard all such prior extinguishment, regardless of its nature and date.

31    The bracketed references were the same as in the footnote to the State’s 28 November 2014 written submissions and were equally undeveloped and uninformative.

32    The State then argued that our reasons erroneously proceeded as if the State’s contention was that the two exploration licences extinguished native title and that s 47B preserved native title rights rather than, as the State would now have it, that the section revived extinguished native title, or did so partially if there were some purpose in its footnote reference to historic pastoral leases and mining and petroleum tenements. The State then asserted that we erroneously decided that the exploration licences were not issued for a particular purpose and that this point was not in issue on the appeal.

33    We did not intend to convey the meaning in [79], [112]-[115] or elsewhere in our principal reasons, and did not at any stage proceed on the basis, that the exploration licences of themselves extinguished all native title rights and interests. As [116] of our principal reasons made clear, we found that the exploration licences did not meet the exclusionary criterion in s 47B(1)(b)(ii) and that, accordingly, s 47B(2) applied to entitle the Banjima people to exclusive possession of each of UCL areas 7, 9 and 42. Nonetheless, in seeking to deal with the State’s nebulous argument, we accept that what we wrote in [79], [112] and [115] in the emphasised passages can be read to refer to s 47B(1)(b)(ii) and that such a reading would not reflect the correct construction of that provision. On the other hand, it is clear from our reasons that at no time did we understand or proceed to construe s 47B(1)(b)(ii) to have the effect, itself, of extinguishing any native title or that interests of the kind to which it referred necessarily did so. Indeed, we explained that:

    the exploration licences did not require that any specific part of UCL areas 7, 9 and 42 be explored or used for the purpose of exploration (at [107]);

    the condition imposed in the chapeau of s 63 of the Mining Act, that the holder of an exploration licence “will explore for minerals”, did not require, when incorporated in each of the two licences here in issue, the whole or any identified part of UCL areas 7, 9 or 42 to be used for that particular purpose (at [108]);

    on the evidence to which the Court was taken, there was no relevant permission or authority in existence at any relevant time for one category of use potentially permitted or authorised by each licence. Nor did the licences require their holders to explore all of the areas, or any identified area, covered by the licences (at [108]);

    it was apparent from the mining tenure extracts that the licensee could carry out the activity of exploration, under the licences, by an airborne geophysical survey (as one of the conditions quoted in [85] of our principal reasons provided) without the licensee engaging in any physical activity on or under the surface of the land or waters. Such activity, although permitted or authorised by the licences, is not a use, for a particular purpose of the whole or any part of the land and waters. Moreover, the licensee had no obligation to explore at any particular location or in any particular way or at any particular time in the licensed areas (at [109]);

    the effect of the grant of the exploration licences, on the evidence, was the same as that discussed in Alyawarr at [187] of a proclamation of a township or a town planning zoning instrument prescribing permitted uses. The general purpose of “exploration” in the licences did not amount to “public purposes” within s 47B(1)(b)(ii). That is because any licensee would not be the State, or one of its authorities, but a private person engaging in activities for his, her or its personal benefit (at [111]);

    at most, the licensee had permission or authority to be physically present on or above the land or waters at any time or location and to look at, and take samples of, anything that could be examined without mechanical assistance for the purpose of exploration. The licensee derived no immediate benefit from the permission or authority to explore the land or waters. The licensee could not work, or do more than take samples of, the land or waters (at [113]);

    it followed that the Mining Act and the terms of the licences, including the conditions incorporated in them by that Act, did not require the lands and waters to which they applied to “be used for public purposes or for a particular purpose”. Rather, the licences amounted to a mere permission or authority to explore for minerals, including from the air. While the permission or authority in the licences extended to the whole of UCL areas 7 and 9 and part of UCL area 42, it did not identify any particular area or period of time, beyond the term of the licence, in which exploration had to occur. The licensee was not obligated to explore the whole of the licensed area. Thus, the whole licensed area was not to “be used” for any particular purpose under the licence, far less did the licences require the licensee to use that entire area for the purpose of exploration. Nor did the licences require any identified portion of the licensed area to “be used” for any particular purpose (at [114]).

34    The State argued further in its interlocutory application that s 47B(2) did not have the effect of preserving native title but only of reviving it and that we were wrong to construe it as we did.

35    The ordinary and natural meaning of “disregard” is “to treat as of no importance; to pay no attention to” (Oxford English Dictionary online, sense b.) and “to pay no attention to; leave out of consideration” (Macquarie Dictionary online, sense 1). The legislative command in s 47B(2) is to pay no attention to any extinguishment of native title rights and interests in relation to that area that are claimed in the application where that area satisfies one of the three criteria in s 47B(1)(b) and each criterion in s 47B(1)(a) and (c). Thus, the issue that we had to, and did decide, was whether each exploration licence met the exclusionary criterion in s 47B(1)(b)(ii), there being nothing else in issue that could defeat the application of the section. Accordingly, once we held that the exploration licences did not fall within the exclusion in s 47B(1)(b)(ii), s 47B(2) mandated that no prior interest, such as those referred to in the footnote to the State’s submissions, had any extinguishing effect on the native title rights and interests that the Banjima people claimed in their application.

36    Nothing the State submitted in support of its interlocutory application undermines the cogency of those reasons or provides a sufficient basis to revisit them or our conclusion at [116]-[117]. Our reasons are not affected by our loose phrasing in [79], [112] and [115] that reflected a rejection of the State’s ambiguous submission. Nor was our construction of s 47B in any way affected by a consideration that the exploration licences themselves extinguished native title. Clearly enough, if those licences granted rights that were inconsistent with a person’s exclusive possession to land or waters, to that extent, the licences would affect such a right. Our principal reasons dealt only with the issue under s 47B(1)(b)(ii) which the State accepted we had to decide. We did so by reference to the nature of the exploration licences, irrespective of the question whether they operated to extinguish native title.

37    The State also argued in its 29 June 2015 submissions at [34] that:

The points at issue on appeal were whether the trial Judge was correct to interpret the expression "to be used" in s 47B(1)(b)(ii) to mean that the dis-applying tenures, proclamations, permissions, processes etc. (a) must obligate use of the relevant land; and (b) must preclude any other use.

38    We reject that submission. As the passages in our principal reasons noted above disclose, we did not simply assume that there must be an obligation to use the land or that the use must be exclusive. We were satisfied that, by reason of their nature, the two exploration licences did not meet the statutory description in s 47B(1)(b)(ii) of permissions (etc) under which land is to be used for a public purpose or a particular purpose. No more needed to be said.

39    Perhaps to escape the inevitable consequence that its interlocutory application must be dismissed, the State seemed also to contend that the description in s 47B(1)(b)(ii) of “under which the whole or a part of the land or waters in the area is to be used … for a particular purpose” required separate consideration of the issues of “to be used” and “particular purpose”. This is a new argument which should not now be permitted to be put. In any event, we do not see any reason why the phrase “is to be used ... for a particular purpose” requires anything other than a global consideration.

40    The attempt to reargue ground 4 must be rejected.

Conclusion

41    Accordingly, nothing in the State’s submissions in support of its interlocutory application indicate any proper reason to re-consider our conclusions.

42    In light of our conclusion that the State’s interlocutory application is without substance, we are satisfied that it was unreasonable for the State to have caused the Banjima people to incur costs in relation to dealing with it. There is no reason that the State should not pay the Banjima people’s costs for its unreasonable act of pursuing the interlocutory application: see s 85A(2) of the Act and ss 37N and 43 of the Federal Court of Australia Act 1976 (Cth).

Associate:

Dated:    4 December 2015

APPENDIX A

Schedule of Parties

WAD 72 of 2014:

ON BEHALF OF THE BANJIMA PEOPLE:

First Appellant:        ALEC TUCKER

Second Appellant:        KEITH LETHBRIDGE

Third Appellant:        STEVEN SMITH

Fourth Appellant:        CHARLES SMITH

Fifth Appellant:        MAITLAND PARKER

Sixth Appellant:        TIMOTHY PARKER

Seventh Appellant:        DAWN HICKS

Eighth Appellant:        ARCHIE TUCKER

First Respondent:        STATE OF WESTERN AUSTRALIA

Second Respondents:        BHP BILLITON IRON ORE (JIMBLEBAR) PTY LTD

BHP BILLITON IRON ORE PTY LTD

BHP MINERALS PTY LTD

ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD

MITSUI IRON ORE CORPORATION PTY LTD

MITSUI ITOCHU IRON ORE PTY LTD

MARILLANA STATION

BEN NEWLAND (SYLVANIA STATION)

Third Respondents:        CHANNAR MINING PTY LTD, CMIEC (CHANNAR) PTY

LTD

HAMERSLEY EXPLORATION PTY LTD, HAMERSLEY IRON – YANDI PTY LTD

HAMERSLEY IRON PTY LTD

HAMERSLEY RESOURCES LTD

JUNA STATION PTY LTD

MITSUI IRON ORE DEVELOPMENT PTY LTD

MOUNT BRUCE MINING PTY LTD

PILBARA IRON PTY LTD

NIPPON STEEL AUSTRALIA PTY LTD

NORTH MINING LIMITED

ROBE RIVER MINING CO PTY LTD

ROCKLEA STATION PTY LTD

SUMITOMO METAL AUSTRALIA PTY LTD

WRIGHT PROSPECTING PTY LTD

Fourth Respondents:        HANCOCK PROSPECTING PTY LTD

HOPE DOWNS IRON ORE PTY LTD

WESTRAINT RESOURCES PTY LTD

MULGA DOWNS IRON ORE PTY LTD

MULGA DOWNS INVESTMENTS PTY LTD

G H RINEHART

Fifth Respondent:    THE SHIRE OF ASHBURTON

Sixth Respondents:    CHICHESTER METALS PTY LTD

FMG PILBARA PTY LTD

FORTESCUE METALS GROUP LTD

THE PILBARA INFRASTRUCTURE PTY LTD

WAD 73 of 2014:

Appellant:            STATE OF WESTERN AUSTRALIA

ON BEHALF OF THE BANJIMA PEOPLE:

First Respondents:        ALEC TUCKER

KEITH LETHBRIDGE

STEVEN SMITH

CHARLIE SMITH

MAITLAND PARKER

TIMOTHY PARKER

DAWN HICKS

ARCHIE TUCKER

Second Respondents:        BHP BILLITON IRON ORE (JIMBLEBAR) PTY LTD

BHP BILLITON IRON ORE PTY LTD

BHP MINERALS PTY LTD

ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD

MITSUI IRON ORE CORPORATION PTY LTD

MITSUI ITOCHU IRON ORE PTY LTD

MARILLANA STATION

BEN NEWLAND (SYLVANIA STATION)

Third Respondents:        CHANNAR MINING PTY LTD

CMIEC (CHANNAR) PTY LTD

HAMERSLEY EXPLORATION PTY LTD

HAMERSLEY IRON – YANDI PTY LTD

HAMERSLEY IRON PTY LTD

HAMERSLEY RESOURCES LTD

JUNA STATION PTY LTD

MITSUI IRON ORE DEVELOPMENT PTY LTD

MOUNT BRUCE MINING PTY LTD

PILBARA IRON PTY LTD, NIPPON STEEL AUSTRALIA PTY LTD

NORTH MINING LIMITED

ROBE RIVER MINING CO PTY LTD, ROCKLEA STATION PTY LTD

SUMITOMO METAL AUSTRALIA PTY LTD

WRIGHT PROSPECTING PTY LTD

Fourth Respondents:        HANCOCK PROSPECTING PTY LTD

HOPE DOWNS IRON ORE PTY LTD

WESTRAINT RESOURCES PTY LTD

MULGA DOWNS IRON ORE PTY LTD

MULGA DOWNS INVESTMENTS PTY LTD

G H RINEHART

Fifth Respondent:    THE SHIRE OF ASHBURTON

Sixth Respondents:        CHICHESTER METALS PTY LTD

FMG PILBARA PTY LTD

FORTESCUE METALS GROUP LTD

THE PILBARA INFRASTRUCTURE PTY LTD