FEDERAL COURT OF AUSTRALIA

BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The determination contained in the orders given on 27 April 2017 be amended by:

(a)    deleting miscellaneous licence L53/109 from Part 2, Schedule 4 of Attachment “A”; and

(b)    inserting miscellaneous licence L53/109 into Part 1, Schedule 4 of Attachment “A”.

3.    Each party pay its or their own costs of the appeal.

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The determination contained in the orders given on 27 April 2017 be amended by:

(a)    deleting miscellaneous licences L53/161 and L53/177 from Part 2, Schedule 4 of Attachment “A”;

(b)    inserting miscellaneous licences L53/161 and L53/177 into Part 1, Schedule 4 of Attachment “A”; and

(c)    removing from Schedule 5 that part of UCL 245 which is covered by exploration licence E57/676.

3.    The cross appeal be dismissed.

4.    Each party pay its or their own costs of the appeal and cross appeal.

5.    The appellant file and serve a consolidated determination, reflecting the orders in this matter and WAD 217 of 2017, within 14 days of the date of these orders.

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

REASONS FOR JUDGMENT

THE COURT:

Summary

1    After a hearing extending over 15 days in July, August, October and December 2015, in which evidence was given by some 18 members of the applicant claim group, including evidence given on and views of numerous locations throughout an area of some 13,600 square km in the Western Desert region of Western Australia, the primary judge published reasons for judgment consisting of some 1312 paragraphs over 350 pages, setting out her findings and conclusions (Narrier v State of Western Australia [2016] FCA 1519). In the course of so doing the appellants contend that her Honour erred in some respects.

2    BHP Billiton Nickel West Pty Ltd contends that the primary judge erred in respect of one of a multitude of interests in land with which she was confronted, being miscellaneous licence L53/109 relating to an access road. The primary judge held the BHP licence to be invalid because it had been granted without complying with the future act provisions of the Native Title Act 1993 (Cth) (the NTA). BHP’s appeal must be allowed as failure to comply with the future act provisions of the NTA does not affect the validity of the BHP licence.

3    The State of Western Australia contends that the primary judge erred in respect of two other miscellaneous licences, L53/161 and L53/177 which both relate to “search for groundwater”. The primary judge held these licences to be invalid future acts. This aspect of the State’s appeal must be allowed because the licences were valid future acts by operation of s 24HA of the NTA.

4    The State also contends that the primary judge erred in respect of an exploration licence, E57/676, granted under s 59 of the Mining Act 1978 (WA) in that her Honour ought to have found this licence was a “lease” for the purposes of the NTA and that, as a result, s 47B(1) could not apply to the area of land covered by E57/676. This aspect of the State’s appeal must also be allowed because E57/676 is a lease for the purposes of the NTA and thus the area which it covers cannot be subject to s 47B of that Act.

5    The applicant for the native title claim group, by way of a cross appeal, contends that the primary judge erred in finding that certain areas of Crown land, referred to as UCL 239, UCL 14 and UCL 15, were not occupied by members of the claim group when the applications claiming native title were made, which meant that s 47B of the NTA did not apply to those areas of land. This aspect of the applicant’s cross appeal must be dismissed because her Honour made reasonably open findings of fact on the evidence, without any error of principle and in circumstances where her Honour had the substantial advantage of hearing the witnesses and viewing the relevant locations, with the consequence that the findings are not amenable to appellate review.

6    The applicant also contends that the primary judge erred in not holding that s 47B of the NTA applied to “that part of UCL 11 in relation to which the condition of occupation was satisfied”. This aspect of the applicant’s appeal must be dismissed because it is founded on a misunderstanding of the applicant’s own case and her Honour’s findings.

7    Because the challenges to the primary judge’s conclusions are relatively confined compared to the vast number of issues with which the primary judge had to resolve, it is not necessary to do other than deal immediately with each contention. Further general background material will not assist in understanding the contentions.

BHP licence

8    It was common ground before the primary judge and in BHP’s appeal that miscellaneous licence L53/109 (referred to as the BHP licence) was a future act that passed the freehold test but in respect of which the State did not comply with the requirements of s 24MD(6B) of the NTA.

9    To understand this, it is necessary to appreciate the following.

10    By s 10 of the NTA:

Native title is recognised, and protected, in accordance with this Act.

11    By s 11(1) “native title is not able to be extinguished contrary to” the NTA.

12    By s 227 of the NTA:

An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.

13    Acts that affect native title are categorised by Div 2 of Pt 15 of the NTA as past acts, intermediate period acts and future acts (see ss 228-233).

14    Section 233 defines a future act in a manner that includes acts that take place after 1 January 1994 and which is to any extent invalid but would be valid to that extent if any native title in relation to the land or waters did not exist, and if it were valid to that extent, would affect the native title.

15    Division 3 of Pt 2 of the NTA (ss 24AA-44G) concerns future acts. Division 3 is divided into Subdivisions A to Q.

16    Section 24AA, in Subdivision A, includes these provisions:

(2)    Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.

(3)    A future act will be valid if the parties to certain agreements (called indigenous land use agreements - see Subdivisions B, C and D) consent to it being done and, at the time it is done, details of the agreement are on the Register of Indigenous Land Use Agreements. An indigenous land use agreement, details of which are on the Register, may also validate a future act (other than an intermediate period act) that has already been invalidly done.

(4)    A future act will also be valid to the extent covered by any of the following:

(a)    section 24FA (future acts where procedures indicate absence of native title);

(b)    section 24GB (acts permitting primary production on non-exclusive agricultural or pastoral leases);

(c)    section 24GD (acts permitting off-farm activities directly connected to primary production activities);

(d)    section 24GE (granting rights to third parties etc. on non-exclusive agricultural or pastoral leases);

(e)    section 24HA (management of water and airspace);

(f)    section 24IA (acts involving renewals and extensions etc. of acts);

(fa)    section 24JAA (public housing etc.);

(g)    section 24JA (acts involving reservations, leases etc.);

(h)    section 24KA (acts involving facilities for services to the public);

(i)    section 24LA (low impact future acts);

(j)    section 24MD (acts that pass the freehold test- but see subsection (5));

(k)    section 24NA (acts affecting offshore places).

(5)    In the case of certain acts covered by section 24IC (permissible lease etc. renewals) or section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a "right to negotiate").

(6)    This Division provides that, in general, valid future acts are subject to the non-extinguishment principle. The Division also deals with procedural rights and compensation for the acts.

17    It will be apparent that s 24AA(4)(j) refers to s 24MD that provides for acts that pass the freehold test. The freehold test is provided for in ss 24MA (legislative acts) and 24MB (non-legislative acts) of the NTA. The BHP licence is a non-legislative act. By s 24MB(1)(b)(i) such an act passes the freehold test if “the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it”. As noted, the BHP licence passed the freehold test. Section 24MD thus applies. Section 24MD provides that:

(1)    If this Subdivision applies to a future act, then, subject to Subdivision P (which deals with the right to negotiate), the act is valid.

18    It was also common ground before the primary judge that s 24MD(6B)(b) (which refers to the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility…associated with mining) applied, with the consequence that the State was required to comply with the notification and consultation requirements in s 24MD(6B)(c)-(g) of the NTA. To the extent that the applicant, during the hearing of the appeal, attempted to submit that there was also non-compliance with s 24MD(6A), which provides that “[t]he native title holders, and any registered native title claimants in relation to the land or waters concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned”, no such case was put below. Nor can the case be put on appeal as it would require BHP to have an opportunity to adduce further evidence.

19    Two further matters should be noted about the statutory scheme. First, s 24MD(1) refers to Subdivision P. Subdivision P does not apply to all acts. Section 26 specifies the future acts to which Subdivision P applies. The grant of the BHP licence is not an act identified in s 26 as an act to which Subdivision P applies because it is within an exclusion in s 26(1)(c)(i), being a right to mine “created for the sole purpose of the construction of an infrastructure facility …associated with mining”. Second, s 24OA provides that:

Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.

20    The primary judge’s conclusion that the BHP licence was invalid because it was granted without compliance with s 24MD(6B) is in error. Section 24MD(1) provides that if Subdivision M applies to a future act then it is valid, subject to Subdivision P. Accordingly, if Subdivision M applies, validity is conditional only upon Subdivision P. Subdivision P does not apply to the BHP licence. It follows from s 24MD(1) that the BHP licence is valid.

21    The primary judge concluded that the context of the NTA read as a whole supported the contrary view. We disagree.

22    First, s 10 recognises and protects native title “in accordance with this Act”. Similarly, by s 11 native title is not extinguished “contrary to this Act”. The provisions of the NTA thus govern how the object of the Act specified in s 3(a) (to provide for the recognition and protection of native title) is to be achieved. Similarly, the provisions of the NTA govern how the object in s 3(b) (to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings) may be achieved. The objects are not free-standing. They are not to be achieved other than in accordance with the provisions of the NTA.

23    Second, ss 24AA(2) and (4) both use the concept of “covered by” as the criterion for validity. Thus, a future act will be valid if it is “covered by” the nominated provisions, which include s 24MD. As BHP submitted, to be “covered by” a provision means no more than that the particular act in question is an act of the class to which any of the listed sections in s 24AA(4) apply. This may be contrasted with alternative language that the legislature could have used. For example, s 24AA(4) does not provide that a future act will be valid to the extent the act “complies” with” or “satisfies” the nomination sections. It suffices if the act is “covered by” one of the nominated sections. Contrary to the applicant’s submission, there is a difference between s 24AA(5) and (6). Section 24AA(5) identifies that for certain acts to be valid it is necessary to satisfy Subdivision P. Section 24AA(6) states that the Division “also deals with procedural rights and compensation for the acts”. It is apparent that the procedural rights in Division 3 are not said by s 24AA(6) to condition validity. The requirements of Subdivision P, by contrast, are said by s 24AA(5) to condition validity.

24    Third, it is difficult to improve on BHP’s description of the categories of future acts and the statutory scheme thereby established. As BHP put it:

…Subdivisions F-N of Part 2 cover various future acts and provide for validation on three levels:

(a)    those future acts that are likely to have the least impact on native title are validated without conditions or further requirements (other than the payment of compensation). For example, this is the case for many types of primary production on non-exclusive agricultural or pastoral leases (Subdivision G); making legislation managing water, aquatic resources or airspace (Subdivision H; s 24HA(1)); and future acts defined as “low impact” (Subdivision L);

(b)    future acts that are likely to have a greater impact on native title are validated and an associated notification regime is imposed. For example, the provision of public housing (Subdivision JAA); the provision of certain facilities for services to the public (Subdivision KA); and acts, other than those involving a right to mine, that pass the freehold test (Subdivision M); and

(c)    two species of future acts that are likely to have the greatest impact on native title because they involve a right to mine (or certain kinds of compulsory acquisition) are validated subject to compliance with the right to negotiate in Subdivision P: s 26(1A) and (1), NTA.

This three-fold classification evinces a legislative intention that future acts that do not involve rights to mine will not be invalidated by a failure to adhere to procedural requirements.

25    Fourth, the language of the provisions is internally consistent. Thus, s 24MD(1) states that if Subdivision M applies to a future act then, subject to Subdivision P, the act is valid. The associated procedural and compensation requirements in s 24MD(3)-(8) are not said to condition validity. The same structure is evident in other provisions:

(1)    s 24GB(5) provides that if the section applies to a future act, the act is valid. It does not identify the subsequent procedural requirements in s 24GB(9) as conditioning validity;

(2)    s 24HA(3) provides that the “act is valid” without reference to the procedural requirements in s 24HA(7);

(3)    s 24ID(1) provides that “subject to Subdivision P …the act is valid” but makes no reference to the procedural requirements in s 24ID(3);

(4)    s 24JB(1) provides that if Subdivision J applies to a future act, the act is valid without reference to the procedural requirements in ss 24JB(6) and (7);

(5)    s 24KA(3) provides that if Subdivision K applies to a future act, the act is valid without reference to the procedural requirements in ss 24KA(7)-(9);

(6)    s 24LA(3) provides that if Subdivision L applies to a future act, the act is valid; and

(7)    s 24NA(2) provides that if Subdivision N applies to a future act, the act is valid without reference to the procedural requirements in ss 24NA(8)-(10).

26    Importantly, another provision takes a different structure which reinforces the conclusion that this part of the NTA expressly identifies those provisions which, if not satisfied, result in invalidity of the future act. Thus, s 24JAA(4) provides that if Subdivision JA applies to a future act then “subject to subsections (5) and (6), the act is valid”. Subsections (5) and (6) expressly identify that such an act is invalid if not done in accordance with notification and consultation requirements.

27    Fifth, the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) referred to s 24HA(7) of the NTA (which imposes notification requirements on acts covered by the section) and stated, in that regard, that a failure to notify under that regime “will not affect the validity of the future act”. There is no discernible difference between this provision and the other procedural provisions in Div 3 of Pt 2 of the NTA.

28    Sixth, the role of s 24OA in the statutory scheme is apparent from s 24AB, particularly s 24AB(2) which provides that:

To the extent that a future act is covered by a particular section in the list in paragraphs 24AA(4)(a) to (k), it is not covered by a section that is lower in the list.

29    In other words, ss 24FA to 24NA are part of a hierarchy. If an act is within an earlier provision it cannot be in a later provision. This is critical because the procedural and compensation rights in the nominated provisions are different. In such a scheme, the role of s 24OA is clear. It is a residual provision which immediately follows the last provision in the hierarchy, s 24NA. By stating that “[u]nless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title”, s 24OA means that a future act will be invalid if it is not made valid by being covered by one provision in ss 24FA to 24NA.

30    Seventh, the text and structure of Subdivision M itself also supports the conclusion that this part of the NTA expressly identifies those provisions which, if not satisfied, result in invalidity of the future act. Section 24MD(1) expressly conditions validity of a future act to which Subdivision M “applies” only by the words “…subject to Subdivision P”. Section 24MD(1) does not say, for example, that if a future act satisfies the requirements of Subdivision M then, subject to Subdivision P, the act is valid. The first condition is simply that Subdivision M “applies”. Sections 24MA and 24MB, in terms, identify the acts to which Subdivision M “applies”. It is thus contrary to the language of the Subdivision to read it as if it said that the Subdivision applies only to acts which satisfy the procedural requirements in ss 24MD(6A)-(8). It is also apparent that the procedural requirements are not expressed to condition validity. Section 24MD(6)(a) makes plain that the procedural requirements in ss 24MD(6A) and (6B) only apply if Subdivision P does not apply. In contrast to s 25(4), in Subdivision P which provides that if “the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title”, nothing in ss 24MD(6A)-(8) identifies any such consequence of non-compliance. It cannot be said, as the applicant would have it, that such a consequence should be implied into in ss 24MD(6A)-(8) because those provisions are a substitute for Subdivision P; the provisions constitute their own regime in respect of which the legislature has not provided for invalidity to be the consequence of non-compliance.

31    Eighth, and as BHP submitted, if “a failure to comply with the notification requirements in s 24MD(6B) renders invalid the relevant future act, then the same must presumably be so of the other procedural requirements in Subdivisions F-N, since there is no meaningful distinction between them”. Given the detailed nature of the requirements, which include consultation in a number of cases about which reasonable minds may differ whether there has or has not been compliance, the consequence of invalidity for non-compliance is likely to be productive of substantial uncertainty and inconvenience to those who have relied on the act as valid.

32    Ninth, and again as BHP submitted:

a number of the procedural requirements in Subdivision F-N afford native title holders or claimants procedural rights sourced outside the NTA. For example, s 24MD(6A) gives native title holders the same rights they would have if they instead held ordinary title to the land: see also ss 24KA(7) and 24NA(8). Those rights are likely to include those granted under State or Territory legislation, as well as common law rights. There is no discernible legislative intention to invalidate future acts in the event that they are in breach of State and Territory laws over which the Commonwealth legislature has no control.

33    For these reasons the text, structure and context of the NTA do not support the primary judge’s conclusion about the consequences of non-compliance with these procedural requirements. In particular, when the statutory scheme is considered as a whole her Honour’s analysis of the function and significance of s 24OA cannot be sustained. The primary judge said at [1033] that s 24OA:

… contemplates that other parts of Pt 2 Div 3 will “provide” for a future act to be valid, which each Subdivision does. And each Subdivision so provides by prescribing procedural requirements, in detail, and of varying levels of stringency; or, by not prescribing any procedural requirements. The starting point of s 24OA — the legislative choice made — is the invalidity of future acts in relation to native title. That is, the legislative choice made is that future acts will not have full force and effect on, at least (taking into account the definition of native title in s 223) those native title rights and interests which have been recognised by this Court in a determination, unless the NT Act “provides” that they will. The scheme then sets out, in great detail, the manner in which each kind of future act may have full force and effect on native title. In my opinion, s 24OA compels attendance to the detailed terms on which each kind of future act is to be given force and effect against native title interests. It discloses a legislative intention that compliance with the requirements set out in each Subdivision (including procedural requirements) is a precondition to a future act having force and effect against native title interests. That is the “protection” which is achieved, in combination with the general prohibition contained in s 24OA.

34    As the above discussion discloses, however:

(1)    the various sections do not provide for validity “by prescribing procedural requirements”. Rather, they expressly provide for future acts to be valid and, in so doing, expressly identify the conditions of validity which, in some but not other cases, include so-called procedural requirements;

(2)    s 24OA is not the “starting point”. It is the finishing point of a statutory hierarchy of provisions in which the application of an earlier provision excludes the application of all later provisions (s 24AB). It applies only if the act is not covered by an earlier provision and if an expressly stated condition of validity is not satisfied; and

(3)    the only legislative intention that is discernible is that invalidity for non-compliance of these provisions is a consequence only if the provisions expressly so provide. The scheme leaves no room for implied invalidity by reason of non-compliance with procedural requirements.

35    It follows that we disagree with the primary judge’s conclusion at [1034] that “s 24OA provides sufficient statutory indication of a legislative intention that compliance with procedural requirements is a precondition to a future act having force and effect against native title”. For the reasons given, s 24OA supports the contrary conclusion. It is a residual provision to which regard must be had only if an act is not covered by an earlier provision or an expressly stated condition of validity in such a provision (such as the operation of Subdivision P, where so identified as a condition of validity) has not been satisfied.

36    Apart from s 24OA it appears that the primary judge preferred her construction because, as she correctly identified, on our construction, “the whole objection and determination process set out in s 24MD(6B) could be ignored and a future act could still have full force and effect against native title interests, including ones which have been recognised in a determination by this Court” (at [1030]). Her Honour returned to this consequence in detail at [1034]-[1047]). The problem is this; the text and structure of the provisions, construed in context, all point to the legislature having intended precisely that which her Honour found objectionable. Indeed, once the function of s 24OA is properly understood, there is nothing in the statutory scheme which supports the primary judge’s construction other than the perceived unfairness of the potential circumvention of notification and consultation requirements for a future act. Her Honour’s perceptions of unfairness are hardly ill-founded. There is also some force in her Honour’s observation that the possible remedies of declarations and injunctions to restrain a future act which has not been the subject of the required notification and consultation are “wholly unsatisfactory” (at [1036]). But recourse to the imperative language of the procedural requirements is of no assistance. If the language of discretion was used, a question would never arise as to the consequence of breach of a statutory requirement. The consequence of breach of a statutory requirement is always dictated by legislative purpose alone. And legislative purpose is determined by reference to “the language of the relevant provision and the scope and object of the whole statute” (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388-391 citing Tasker v Fullwood [1978] 1 NSWLR 20 at 24).

37    In the case of s 24MD(6B) of the NTA the language of the relevant provision, construed in the context of the NTA as a whole, is intractable. Fidelity to the statute and to the principles of statutory construction, in which legislative purpose is identified from the terms of the legislation construed in context, demand a conclusion contrary to that of the primary judge. There is no doubt that, as the primary judge said at [1042] referring to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294, “the combination of imperative language, detailed prescriptions of steps to be undertaken, and the nature of interests affected can lead to emphatic conclusions about the validity of a decision (or conduct) undertaken without compliance with the statute”. But as Hayne J also said in SAAP at [208] it was the “language of the Act and its scope and objects” which pointed “inexorably” to the consequence of invalidity for breach. Here, the scope and objects and context of the NTA as a whole support the conclusion, inescapable once the structure and language of s 24MD(6B) is considered, that the legislature did not intend that an act done in breach of s 24MD(6B) would be invalid. The concern which led the primary judge to a different conclusion, that this enables the notification and consultation provisions to be circumvented, is not anchored in the language of the NTA and thus cannot be given effect. And as was pointed out in the case which the primary judge distinguished, The Lardil Peoples v Queensland [2001] FCA 414; (2001) 108 FCR 453 at [120], future acts usually involve a government authority and it is the relevant government authority which is bound to comply with the notification and consultation requirements. There is no reason to assume that the relevant government authority will not comply with these requirements in the ordinary course. The only reason for non-compliance in the present case was that the BHP licence was granted between the dates of the judgments of the Full Court and High Court in The State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 and Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 respectively when it was believed that certain rights could be granted without regard to the future act provisions.

38    The primary judge recognised that her construction was inconsistent with that of another Full Court in Lardil, which had been followed by two single judges of the Court in Banjima People v Western Australia and Others (No 2) [2013] FCA 868; (2013) 305 ALR 1 and Daniel v State of Western Australia [2004] FCA 1388; (2004) 212 ALR 51. In Lardil French J (as he then was) said:

[58] As appears from the provisions of each of the subdivisions referred to in Div 3 of Pt2, the acts which they validate must be future acts. Their validation by a particular subdivision is conditioned upon their characterisation as a future act to which that subdivision or a section within it applies. The subdivisions which provide for prior notification to registered native title claimants and others do not appear to condition the validity of the future acts to which they apply upon compliance with that requirement. This is consistent with the express statement in the Explanatory Memorandum relating to s 24HA(7). The subdivisions which accord procedural rights to registered native title claimants, which are the same as those accorded analogous interest holders, are similarly structured to the subdivisions providing for notification. Absent some express provision, as in subdivision P, it is not to be supposed, having regard to the statutory setting, that non-compliance with those procedural requirements goes to validity. Consistently with that conclusion, non-compliance with procedural requirements may support injunctive relief restraining the doing of the act until the relevant procedures have been complied with.

[59] The preceding observation is strictly obiter for in the present case the question of the consequences of non-compliance with the procedural rights conferred by subdivisions H, M or N does not arise, even assuming the applicability of one of them to the grant of the Restrict Buoy Mooring Authority. For there was nothing put to his Honour or to this Court by way of contention that the granting of the Restricted Buoy Mooring Authority affected native title rights and interests. In other words, there was no contention that the grant of the Restricted Buoy Mooring Authority was a future act. It was submitted that the definition of a future act could be understood as encompassing an act which "may" affect native title. But this would require a re-writing of the statutory definition in s 233 which would significantly alter the operation of the act. Such a course is not justified by the language of a statute.

39    Merkel J in Lardil at [72] said:

Notwithstanding the threshold difficulty confronting their claim, the appellants addressed extensive argument as to the consequences of a failure to afford procedural rights to native title claimants in accordance with the future act provisions of Div 3 of Pt2 of the NTA. In particular, the appellants argued that non-compliance with those provisions results in invalidity of the future act. For the reasons given by French and Dowsett JJ, there are substantial and cogent grounds for concluding that a future act that falls within an applicable subdivision of Div 3 of Pt2 of the NTA will not be invalid merely because a procedural requirement set out in the subdivision had not been complied with. In my view, however, it is preferable to determine this issue, which is one of considerable importance, in a context where the existence of native title, and the question of how a future act affects it, have been determined.

40    Dowsett J in Lardil said:

[117] The second point concerns the relatively surprising assertion that Parliament intended to invalidate acts because of failure to give notice to registered claimants pursuant to the relevant validating subdivision. There are, to my mind, a number of reasons suggesting that this submission must be incorrect. Firstly, the express wording of each of the validating provisions suggests otherwise. Subsection 24HA(3) validates a future act without any suggestion that such validation is dependent upon compliance with any other aspect of the section or subdivision. Native title rights are not extinguished by the act in question, but enjoyment of them may be suspended. Compensation is payable, but there is no suggestion that payment is a condition of validity. There is also nothing to suggest that compliance with subs24HA(7) is a condition precedent to validity. Similarly, subs24MD(1) validates a future act with no suggestion that validity is dependent upon observation of procedural rights. Subs 24NA(2) is to similar effect. These provisions may be compared to s25 which relates to the right to negotiate. Subs 25(4) expressly provides, concerning future acts:

If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.

[118] That Parliament should have chosen to make express reference to invalidity in this context strongly suggests the absence of any such intention in connection with the other subsections with which I am concerned. It is necessary to keep in mind the observations of the majority (McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at pars 91-para. Their Honours there observed:

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".

[119] I see no reason why the same test should not be applied for present purposes.

[120] Secondly, I have already referred to the fact that when subs (7) was inserted into s 24HA, the relevant explanatory memorandum offered the view that failure to give notice would not result in invalidity. There is no reason to believe that there was any different intention associated with the conferment of procedural rights in the other validating provisions. Thirdly, although it is not always clear from the wording of those provisions, they will frequently, perhaps usually be concerned with the conduct of government or of some government instrumentality, or with conduct pursuant to government authority. Such conduct will presumably have social value. It seems relatively unlikely that Parliament intended to invalidate such acts merely because no notice had been given to a registered native title claimant, even in the event that the claim turned out to be entirely without merit. Such an interference with state government could hardly be justified, constitutionally or politically, if there were no native title to protect. Of course that says nothing about the availability of interlocutory relief.

41    The primary judge distinguished Lardil on two bases. First, because the above observations in Lardil are obiter dicta (at [1003]). Second, because, as her Honour put it, “Lardil was not a case dealing with native title rights and interests which had been recognised as existing” (also at [1003]). We consider her Honour’s approach in this regard to be in error. In Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553 Black CJ, Hill, Sundberg, Marshall and Kenny JJ identified the importance of the doctrine of precedent to the question whether one Full Court should reconsider a previous Full Court decision. Their Honours said:,

[27] It is not in doubt that a Full Court of this Court has power to decline to follow the previous decision of a differently constituted Full Court. The Court is not bound to perpetuate error if error there be. Nor is it in doubt that while the Court has that power, it is a power which should be exercised with great care. The doctrine of precedent, which is fundamental to the common law, brings with it the consequence that decisions of an intermediate court of appeal will be binding on single judges within the same court hierarchy. They will be relied upon by the broader community and the profession. Decisions of a Full Court of this Court are entitled to due respect and will not be lightly departed from.

…

[29] A differently constituted Full Court would, of course, decline to follow the decision of another Full Court if it concluded that the previous decision was clearly erroneous. It would be wrong to do this merely because the matter was one on which minds might differ…

42    In Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 the same principle was held to apply to intermediate courts of appeal in different jurisdictions. Thus, at [135] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said:

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.

43    The same approach applies to single judge decisions (BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; (2007) 162 FCR 234 at [83]-[88]). The obiter dicta in Lardil was fully reasoned. As indicated, Lardil has also been followed by two single judges of this Court. Thus, the status of the reasoning as obiter dicta was not a proper foundation to depart from the Full Court’s construction. The distinction the primary judge drew between claimed and established native title is also not supported by the NTA, the reasoning in Lardil or the subsequent single judge decisions supports. As was pointed out in Lardil at [120], if invalidity is the consequence of non-compliance with the procedural requirements, then that consequence applies to native title claims irrespective of their merits. The fact that the claim to native title in the present case was established could not affect the question of construction. The primary judge did not conclude that the construction in Lardil was plainly wrong and thus ought to have applied it. For the reasons given we consider the construction in Lardil to be correct.

44    Contrary to the applicant’s submission, Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 346 ALR 1 does not support the primary judge’s conclusion. The outcome in that case, that failure to comply with requirements for the grant of a mining lease under the Mining Act invalidated the mining lease, was based on the approach endorsed in Project Blue Sky. As reasoned at [84]-[89] in Forrest, the prescriptive requirements were apt to reduce the administrative burdens on the responsible Department, yield advantages to third parties who would not thereby be “troubled unnecessarily or prematurely by half-baked proposals”, ensure objections could be prepared with reference to the required information and thus on an informed basis, and prevent “land-banking” by mining companies. As a result, to focus in isolation on the statement in [85] that “where non-observance of a condition bearing upon the exercise of a statutory power would work to the material disadvantage of individuals for whose protection the condition exists, considerations of justice and convenience tell strongly in favour of holding invalid acts done in neglect of the condition” is inappropriate.

45    For these reasons BHP’s appeal must be allowed and the orders constituting the determination of native title made on 27 April 2017 must be amended to reflect the validity of the BHP licence. BHP does not seek its costs of the appeal.

Groundwater licences

46    The primary judge dealt with miscellaneous licences L53/161 and L53/177 at [1098]-[1120]. She concluded that these licenses were not future acts to which s 24HA(2) applied.

47    It was common ground that each licence had been granted under s 91 of the Mining Act and Regulation 42B(ia) of the Mining Regulations 1981 (WA) for the purpose of “search for groundwater” (at [1098]-[1100]).

48    Section 91 of the Mining Act, as the primary judge noted at [1101], is in these terms:

(1)    Subject to this Act, and in the case of a miscellaneous licence for water to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act, the mining registrar or the warden, in accordance with section 42 (as read with section 92), may, on the application of any person, grant in respect of any land a licence, to be known as a miscellaneous licence, for any one or more of the purposes prescribed.

(2)    A person may be granted more than one miscellaneous licence.

(3)    A miscellaneous licence shall –

(a)    be in the prescribed form; and

(b)    authorise the holder to do such matters and things as are specified in the licence.

…

(6)    A miscellaneous licence shall not be granted unless the purpose for which it is granted is directly connected with mining.

49    The prescribed purposes, as referred to in s 91(1), are to be found in reg 42B of the Regulations which provides that:

For the purposes of section 91(1), a miscellaneous licence may be granted for the use of land for one or more of the following purposes –

…

(i)    taking water;

(ia)    a search for groundwater;

…

(o)    a drainage channel;

(p)    a pump station;

…

(r)    a bore;

(s)    a bore field;

(t)    a water management facility;

…

50    As noted, it is common ground that these licences were granted for the purposes of “search for groundwater” as provided for on reg 42B(ia).

51    Section 24HA(2) of the NTA is in these terms:

This section also applies to a future act consisting of the grant of a lease, licence, permit or authority under legislation that:

(a)    is valid (including because of this Act); and

(b)    relates to the management or regulation of:

(i)    surface and subterranean water; or

(ii)    living aquatic resources; or

(i)    airspace.

In this paragraph, water means water in all its forms and management or regulation of water includes granting access to water, or taking water.

52    By s 24HA(3), such an act is valid.

53    The primary judge observed at [1113] that by s 24HA(2) the “requisite connection must be between the legislation and the management/regulation of surface or subterranean water”. So much is not in dispute. However, at [1115] to [1119] her Honour explained her conclusion that, given s 91(6) of the Mining Act, the legislation requires the prescribed purposes to be “directly connected with mining” (at [1115]), so that the prescription of water related purposes in the Regulations also had to be directly connected with mining and thus did not satisfy s 24HA(2). If it were otherwise, her Honour said, the character of the Mining Act would alter depending on the content of the Regulations (at [1118]). As her Honour put it also in [1118]:

Section 24HA is concerned with legislation (and administrative or executive acts authorised by legislation) having a connection with water (in its usual sense, as the State submits). It is not concerned with legislation (and administrative or executive acts authorised by legislation) having a connection with mining.

54    We disagree. While the primary judge recognised that the criterion on which s 24HA(2) depends is the character of the legislation (that is, whether legislation relates to the management or regulation of the identified matters) she drew a distinction between the Mining Act and the Regulations which is not warranted. It is s 91 of the Mining Act together with the Regulations which constitute the relevant “legislation” under s 24HA(2), not the Mining Act as a whole. This is because, on the terms of s 24HA(2), the only relevant legislation is the legislation under which the future act has been granted.

55    In The Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58 at 82 Latham CJ said:

The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the laws in particular cases.

56    In Minister for Industry and Commerce v Tooheys Ltd [1982] FCA 135; (1982) 60 FLR 325 at 331 Bowen CJ, Northrop and Lockhart JJ noted that regulations may have an administrative or legislative character depending on their context and subject-matter.

57    By s 91(1) of the Mining Act the mining registrar or warden is only empowered to grant a miscellaneous licence for one of the purposes prescribed, the prescription of the purposes being in reg 42B of the Regulations. It may be accepted that by s 91(6) this power is only exercisable if the purpose for which the miscellaneous licence is granted is directly connected with mining. But a direct connection with one purpose (mining) does not mean that the “legislation”, thereby, does not relate to the management or regulation of, in this case, subterranean water. “Legislation” in s 24HA(2) does not invite characterisation of an Act as a whole to discern a single unifying legislative purpose. A single provision in an Act, such as s 91 of the Mining Act, or a single provision in regulations, is “legislation”. The issue is whether the legislation under which the future act was granted, wherever the legislation be found and whatever form it may take (Act, regulation, by-law, ordinance or otherwise), relates to the management or regulation of the identified matters. If the grant of a lease, licence, permit or authority is under that legislation, s 24HA(2) applies. This construction of s 24HA(2) is supported by extrinsic material.

58    As the State pointed out in its submissions:

Section 24HA was enacted as part of substantive amendments made to the Native Title Act by the Native Title Amendment Act 1998 (Cth) …Section 24HA was enacted "to deal with future acts involving the management of water, living aquatic resources (such as fish) and airspace" and to implement point 8 of what was then described as the "10 Point Plan" [Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) at [10.1]].

Point 8 of the "10 Point Plan" was concerned with "the ability of governments to regulate and manage surface and subsurface water, off-shore resources and airspace, and the rights of those with interests under any such regulatory or management regime would be put beyond doubt" [Explanatory Memorandum at [2.9]].

59    Any attempt to identify a single unified purpose of a statue as a whole is unnecessary and apt to involve misdirection given the terms of s 24HA(2). Such an approach also introduces potential complexities which risk undermining the legislative intention to which the provision gives effect. The construction we prefer, by contrast, accords with the language of s 24HA(2) (in particular, the reference to “a future act consisting of the grant of a lease, licence, permit or authority under legislation”) and the legislative intention. On this basis, it matters not where the provision is located, what form it takes, whether it is embedded in laws dealing with other topics or stands alone, or whether it is part of a statute or delegated legislation. Provided the provision under which the future act is granted is legislation and relates to the management or regulation of water (as described in s 24HA(2)), s 24HA (2) is engaged.

60    As the State submitted, if the “legislation” in s 24HA(2) means anything other than the particular provisions under which the future act was granted, the operation of s 24HA(2) would be dictated by matters of form, not substance. On the primary judge’s construction, for example:

(1)    if the State legislature had chosen to unify all provisions permitting the grant of any authority to search for or use groundwater in a single statute, including any such grant directly connected with mining, then s 24HA(2) would be satisfied. This is because the statute would be one relating to the regulation and management of groundwater; and

(2)    if a statute (such as the Water Services Act 2012 (WA), to take but one example) authorised the grant of a lease, licence, permit or authority for a purpose unconnected with the regulation or management of water (such as the erection of a head office for a statutory authority), then it would seem again that s 24HA(2) would be satisfied. This is because the statute as a whole would be characterised as one relating to the regulation or management of water. The fact that the future act was granted under a provision having nothing to do with the regulation or management of water would be immaterial because the issue would be the character of the legislation as a whole.

61    The primary judge accepted at [1112] that there “is an obvious connection” between the licences and surface or subterranean water but did not draw the necessary conclusion from this that the provisions under which the licences were granted thus satisfied the description in s 24HA(2). She did not do so because of the apparent view that “legislation” in s 24HA(2) means a statute as a whole (in the present case, the Mining Act as a whole). For the reasons given, we are unable to agree.

62    Against this background, it is readily apparent that miscellaneous licences L53/161 and L53/177 were granted under legislation that relates to the management or regulation of subterranean water. This is because s 91(1) of the Mining Act, taken with reg 42B(ia) of the Regulations, constitute legislation that relates to the management or regulation of subterranean water and the licenses were granted under those provisions. It does not matter that the licences also had to satisfy the requirement in s 91(6) of the Mining Act that “the purpose for which [they were] granted is directly connected with mining”. This means only that the purpose of “search for groundwater” for which a licence may be granted by operation of s 91(1) and reg 42B(ia) must be directly connected with mining. The requirement for that connection does not remove the provisions from the scope of s 24HA(2). Together, s 91(1) and reg 42B(ia) are legislation that relates to the management or regulation of subterranean water because they authorise the grant of a relevant act under which the licence holder may search for groundwater. There is no reason not to give the words “relates to the management or regulation of…” their natural and ordinary meaning. Legislation which provides for the grant of a licence to search for groundwater directly connected with mining is legislation which relates to the management or regulation of subterranean water.

63    It follows that, in [1115] of her reasons, the primary judge’s question whether the Mining Act related to surface or subterranean water was not posed by s 24HA(2) of the NTA. It also follows that her Honour’s concern at [1118] that the character of the Mining Act would alter depending on the content of the Regulations is immaterial. Section 24HA(2) is not concerned with the character of the Mining Act. It is not concerned with the character of any Act or delegated legislation as a whole. It is concerned only with whether the future act was granted under legislation (meaning the specific provisions which authorised the relevant grant) that relates to the identified matters. Provisions which enable the grant of a licence authorising a search for groundwater directly connected with mining satisfy this description.

64    Accordingly, grounds one and two of the State’s appeal must be allowed. Miscellaneous licences L53/161 and L53/177 are valid by operation of s 24HA(3) of the NTA. The determination which the primary judge made must be amended to reflect this position.

Exploration licence

65    Although these grounds of the State’s appeal (grounds 3 to 7) identify eight exploration licences granted under s 59 of the Mining Act, the State accepts that its contentions, if accepted, affect only one such licence, E57/676. This is because the other exploration licences did not exist at the date of one of the claimant applications and the relevant time under s 47B of the NTA is “when the application is made”. The issue is whether, contrary to the primary judge’s conclusion, an exploration licence under the Mining Act is a lease for the purposes of the NTA, including s 47B(1)(b)(i). If so, s 47B(2), requiring prior extinguishment of native title to be disregarded, cannot operate.

66    Consideration of the statutory provisions discloses why we consider the primary judge’s conclusion to be incorrect. Those parts which are of particular importance to the issue are shown in bold.

67    Part 15 of the NTA contains definitions. Division 3 of Pt 15 concerns leases. It includes the following provisions:

241

This Division contains definitions relating to leases.

242

(1)    The expression lease includes:

(a)    a lease enforceable in equity; or

(b)    a contract that contains a statement to the effect that it is a lease; or

(c)    anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease.

(2)    In the case only of references to a mining lease, the expression lease also includes a licence issued, or an authority given, by or under a law of the Commonwealth, a State or a Territory.

243

(1)    Subject to subsection (2), the expression lessee includes any person who, by assignment, succession, sub-lease or otherwise, acquires, enjoys or is entitled to exercise any of the interests under the lease of a lessee (including of a person who is a lessee because of another application or applications of this section).

(2)    In the case of a lease that is a mining lease because of subsection 242(2) (which covers licences and authorities given by or under laws), the expression lessee means:

(a)    the person to whom the licence mentioned in that subsection was issued, or the authority so mentioned was given; or

(b)    any person who, by assignment, succession or otherwise, acquires or enjoys the licence or authority or is entitled to exercise rights under the licence or the authority.

…

245

(1)    A mining lease is a lease (other than an agricultural lease, a pastoral lease or a residential lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for mining.

…

68    Division 4 of Pt 15 contains other definitions including “mine”. “Mine” is defined in s 253 as follows:

"mine" includes:

(a)    explore or prospect for things that may be mined (including things covered by that expression because of paragraphs (b) and (c)); or

…

69    Section 47B of the NTA provides as follows:

(1)    This section applies if:

(a)    a claimant application is made in relation to an area; and

(b)    when the application is made, the area is not:

(i)    covered by a freehold estate or a lease; or

(ii)    covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or

(iii)    subject to a resumption process (see paragraph (5)(b)); and

(c)    when the application is made, one or more members of the native title claim group occupy the area.

(2)    For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.

70    The point is this. If an exploration licence under s 59 of the Mining Act is a “lease” for the purpose of the NTA, including s 47B, then by s 47B(1)(b)(i) the area the subject of the exploration licence is excluded from the operation of s 47B(1) and thus prior extinguishment under s 47B(2) cannot be disregarded.

71    The primary judge dealt with the issue at [1194]-[1210]. She held this at [1207]:

Despite the definition given to the verb “mine” in s 253, in my opinion the NT Act defines a mining lease more narrowly, even taking into account s 242(2). It looks to the use of the land, and requires that the land be used “solely” or “primarily” for mining. There is no evidence that the exploration licences in question permitted the licensee to use the land or waters they covered “solely” or “primarily” for mining.

72    We disagree. The defined word “mine” in s 253 of the NTA is a verb. The verb includes “explore or prospect for things that may be mined”. By s 253, this meaning must be given to “mine” in the NTA, unless the contrary intention appears. It follows that cognate words, such as “mining”, are to be construed consistently with the word “mine” (s 18A of the Acts Interpretation Act 1901 (Cth)).

73    The scheme established by Div 3 of Pt 15 is clear. There is no reason not to give the word “mining”, wherever it appears in Div 3, the meaning given to “mine” by s 253. Accordingly, when s 245 refers to a mining lease being a lease that permits land to be used solely or primarily for the purpose of “mining”, the word “mining” is to be given the same meaning as “mine” in s 253. As a result, a lease that permits the lessee to use land solely or primarily for exploring or prospecting for things that may be mined is a lease that permits use of the land solely or primarily for mining. Where the contrary is intended, as for example in s 26C(4)(c)(i) of the NTA, express words are used. Thus, s s 26C(4)(c)(i) refers to “mining for opals or gems (other than mining consisting of exploring, prospecting or puddling)”. And to work out what “lease” and “lessee” mean in s 245, the answers are to be found in s 242(2) (references to “mining lease” includes a licence issued or authority given) and s 243(2) (in the case of a lease that is a mining lease because of s 242(2), the expression lessee means the person to whom the licence was issued or authority given and their successors).

74    The contrary arguments do not confront the plain words of the statutory scheme. The legislative intention to treat all licences and authorities to mine as leases for the purpose of the NTA is evident from that scheme, as is the legislative intention to treat the concept of a “mine” or “mining” as encompassing exploring or prospecting for things to mine. This legislative intention is supported by the extrinsic material. As the State noted the Supplementary Explanatory Memorandum, Native Title Bill 1993 (Cth) p 17 provides the following in respect of s 242(2):

The addition of subclause (2) provides that for the purposes of mining leases only, licences or authorities to mine are to be treated in the same way as mining leases. This amendment is part of a package of amendments to treat licences and authorities to mine in the same way as mining leases. The related amendments are found in amendments 66 and 67.

75    Related amendments 66 and 67 concern the expanded definition of “lessee” in s 243(2). The Supplementary Explanatory Memorandum at p 17 refers to amendments 66 and 67 in these terms:

This clause defines what is meant by the term 'lessee' for the purposes of this Bill. The addition of subclause (2) makes it clear that for the purpose of a mining licence or authority that is a mining lease because of subclause 227(2) [now subsection 242(2)] a person holding such a licence or authority is to be regarded as a lessee for the purposes of the Bill. These amendments are also consequential upon the treatment of mining licences and authorities which give similar rights to mining leases in the same manner for the purposes of this Bill.

76    The applicant’s argument that s 242(2) operates only where the words “mining lease” appears in the NTA so that s 47B(1)(b)(i) was not engaged by exploration licence E57/676 in any event, is untenable. Division 3 of Pt 15, as 241 discloses, is concerned with definitions relating to “leases”. In this context, “mining leases” are a type of lease. The purpose of ss 242(2) and 243(2) is to ensure that instruments described as licences or authorities to mine (which include exploring or prospecting for things to mine by s 253) are taken to be a mining lease, and thus a type of lease for the purposes of the NTA. That a mining lease is a type of lease is apparent not only from Division 3 of Pt 15, but other provisions of the NTA including:

(1)    s 21(3)(a), which refers to “a grant of a freehold estate or a lease (other than a mining lease)”;

(2)    s 23B(2)(c)(viii), which refers to “any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters”;

(3)    s 24IC(4)(c), which refers to “…a perpetual lease (other than a mining lease)”; and

(4)    s 43A(2)(a)(i), which refers to “…a freehold estate in fee simple or by a lease (other than a mining lease)”.

77    The reference to “lease” in s 47B(1)(b)(i) of the NTA thus includes any mining lease. And “mining lease” includes any licence to mine. And a licence to mine includes a licence to explore or prospect things to mine. As a matter of construction, accordingly, the primary judge erred in concluding at [1207] that a “mining lease” involves a narrower concept than that of the defined verb “mine”.

78    The primary judge also said at [1207] that there was “no evidence that the exploration licences in question permitted the licensee to use the land or waters they covered ‘solely’ or ‘primarily’ for mining”. If this formed a separate basis for the primary judge’s conclusion about exploration licence E57/676 (which is doubtful given her Honour’s focus on the construction of the provisions), the finding was not reasonably open. There was evidence that exploration licence E57/676 was a permission to use land solely or primarily for the purpose of mining, in the sense of exploring for things to mine.

79    Exploration licence E57/676 was in evidence. It was granted under s 59(6) of the Mining Act. Section 66 of the Mining Act identifies the rights conferred by an exploration licence granted under s 59. Section 66 is in these terms:

An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject -

(a)    to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;

(b)    to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;

(c)    to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;

(d)    to take and divert, subject to the Rights in Water and Irrigation Act 1914 , or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.

80    No more was needed to establish that an exploration licence granted under s 59 of the Mining Act satisfied the terms of s 245(1) as the exploration licence, which is taken to be a mining lease, “permits the lessee to use the land or waters covered by the lease solely or primarily for mining”.

81    For these reasons the State’s grounds of appeal 3 to 7, to the extent they relate to exploration licence E57/676, must be allowed. The area covered by exploration licence E57/676, which is a portion within UCL 245, is not land to which s 47B of the NTA applies. Thus, the determination made by the primary judge needs to be amended by ensuring that Schedule 5 of the determination refers only to the portion of UCL 245 which is not covered by exploration licence E57/676.

Occupation in s 47B(1)(c) of the NTA

82    For s 47B(2) to apply s 47B(1)(c) requires that “when the application is made, one or more members of the native title claim group occupy the area”. The applicant contends in the cross appeal that the primary judge erred in her approach to s 47B(1)(c) by “requiring that presence or activity in an area by members be coupled with proof of some further or other and more specific sense of purpose or entitlement in order to demonstrate occupation of the area by that presence or activity” and that the presence or activity not be “opportunistic” (at [1236], [1248] and [1245]). According to the applicant, this places an “unwarranted gloss on the statute that jars with the statutory text and context” and fails to recognise that opportunistic presence and activities are “in the context of traditional law and custom, entirely consistent with being established in the area”. In the submissions for the applicant this was said:

a holding that presence or activity does not involve occupation if it is ‘opportunistic’ is contrary to principle and authority, and inapposite to the circumstances of this case of Western Desert people holding rights over wide areas of traditional country sparse in resources…

…the holding that ‘opportunistic’ presence or activity by Claim Group members should be disregarded for the purposes of s 47B(1)(c) is contrary to authority that occupancy is to be viewed by reference to the demands of the country and community in question.

83    The primary judge did not err in the manner the applicant proposes. The submissions for the applicant attempt to take observations in her Honour’s reasons out of context, elevate those observations to the level of principle, and then attribute alleged errors of principle to her Honour. The primary judge’s exposition of the relevant principles at [1212]-[1232] was comprehensive and accurate. To the extent that the applicant challenged [1230] of the reasons as disclosing or supporting the contentions of error, it is important to identify the whole of that paragraph. The primary judge said:

As the authorities to which I have referred demonstrate, what will constitute, in any given factual situation, claim group members “being established in a place” may include activities such as visiting, walking over the area, and using the area. Activities of this kind may or may not be sufficient, depending on the facts. The sense of the authorities requires the Court to look at the evidence and decide whether, by their presence and use of it, claim group members treated the land in question as their own.

84    It is apparent that the primary judge was not suggesting that any particular kind of activity or presence would be insufficient to establish occupation as a matter of principle. She was saying the opposite, that everything depends on the facts.

85    The applicant’s submissions otherwise focused on subsequent statements which deal with her Honour’s findings about particular areas of land as if those statements also involved some principle. Such an exercise is illegitimate. Thus, the applicant’s submissions focused on [1248] of the reasons in which the primary judge said:

As the authorities have noted, frequency of presence on land claimed under s 47B is only one factor. If the evidence reveals that people go when they want to, then even if the presence is infrequent, that still may be enough for occupation, because it is the sense of possession and the assertion of it by presence when it suits people, or as they consider it necessary or appropriate, which differentiates that situation from the situation of random or coincidental visits, without a sense of purpose or entitlement.

86    As the State submitted, contrary to the applicant’s contentions, this was not a statement of principle. It was an observation made in the context of dealing with the evidence about two areas of land, UCL 245 and 246, areas which the primary found were occupied as required by s 47B(1)(c). As the State submitted, it would be strange to find the applicant’s asserted error of principle in a part of the reasons dealing with land in which the primary judge found in the applicant’s favour.

87    The applicant’s contention of error based on an alleged failure by the primary judge to recognise the claim group’s connection with the areas is also misplaced. As the primary judge correctly noted at [1223], it is wrong to equate connection with occupation, although evidence of connection may be relevant to occupation. As the State submitted:

The fact that members of the claim group possess, under their traditional laws and customs, exclusive (native title) rights and interests does not, however, render any activity undertaken on a relevant area sufficient to establish the requirement of "occupation".

88    If it were otherwise, as the State said, proof of connection would equate to proof of occupation, which is not the law. The primary judge’s detailed review of the authorities, including The State of Western Australia v Sebastian [2008] FCAFC 65; (2008) 173 FCR 1, supports her Honour’s approach to the question of occupation. It may be accepted that where there is a native title right of exclusive possession, exercise of that right to exclude strangers from the land indicates occupation (Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 at [216]), but this does not mean that any form of presence or activity on such land establishes occupation. So much is apparent from the whole of [216] in Moses which is in these terms, and to which the primary judge referred at [1221]:

The word “occupy” is not defined in the NTA. It has a common meaning of being established in a place. In contemporary society, a person may occupy all of a house even though that person does not regularly enter every room and may never have entered a particular room or a particular part of a room; a pastoralist may occupy all of the area of a pastoral lease even though that person does not regularly visit every part of the area of the pastoral lease and may never have visited parts of it or have used parts of it for pastoral purposes: see eg per Lord Denning in Newcastle City Council v Royal Newcastle Hospital [1959] AC 248 at 255. In ss 47A and 47B, as the authorities point out, the context requires that the word “occupy” denotes some physical presence or activity by one or more members of the claim group from time to time, not necessarily continuously, and a presence or activity in the area so that as a matter of practicality that presence or activity involves the assertion of being established over the area itself. The occupation must be contemporaneous rather than historical. If the native title rights and interests over the area were exclusive, so there was a right to control access to the area, the exercise of the right to exclude strangers from the area would indicate its occupation. To occupy an area under the NTA, given its purposes and context, involves the exercise of possessory rights over the area, but the exercise of those rights does not require their continuous exercise, or their exercise at the precise time of the application because the occupation of which ss 47A and 47B speak is a state of affairs which must exist rather than the precise activity which illustrates the existence of the state of affairs.

89    The primary judge’s references to “opportunistic” uses of land must be considered in context. In [1236] the primary judge was dealing with one piece of evidence relating to one visit to UCL 239. The evidence was described at [1235]:

Mr Lewis also gave evidence that in June or July 2015, not long before the on country hearing, he went hunting kangaroo in the area south-east of UCL 239:

A couple of weeks ago I came hunting because when we was running around here I seen all the everlastings out, so I thought I’d come and get some fat kangaroos from there, yes.

90    At [1236] the primary judge said:

This, it seemed, was something of an opportunistic visit, in the way Mr Lewis described it.

91    This was a passing observation about the character of the evidence, not a statement of principle.

92    Similarly, when the primary judge referred to evidence about the use of UCL 14 and UCL 15 as having an “opportunistic character to it, which is insufficiently consistent with the concept of occupation under s 47B” at [1266], it was not a statement of principle, but an assessment of the kind of use described in the particular evidence with which she was dealing. The detailed consideration which the primary judge gave to that evidence is apparent from her reasons at [1262]-[1265].

93    Otherwise, the applicant’s approach to the appeal was unrealistic. The applicant submitted that:

The usual caution about interfering with primary fact finding is mitigated in this case first, because the fact finding was influenced by the primary judge’s erroneous approach in disregarding ‘opportunistic’ presence or activity: Reasons 1 [1236] (UCL 239), [1266] (UCL 14/15). Second, the evidence of presence or activity is confined, and mostly by written witness statements, without substantive challenge. Third, there is no issue as to the reliabilty of the claimant evidence: Reasons 1 [123], [125], [198], [151]-[152], [204]-[205], [501].

94    To the contrary, the usual caution about primary fact finding is particularly acute in a case such as the present. As noted at the start of these reasons, the primary judge had the benefit of a hearing extending over 15 days and heard evidence from some 18 members of the applicant claim group, including evidence given on and views of numerous locations. Any attempt to minimise the substantial advantage the primary judge had in making factual findings, given this background, is unsustainable. The same appoint has been made a number of times in cases such as the present, including in Banjima People v State of Western Australia [2015] FCAFC 84; (2015) 231 FCR 456 where the Full Court noted that:

(1)    the “primary judge…had the benefit of seeing the terrain and hearing the evidence on country and was thus best placed to assess the issue of occupation and the quality of the evidence led to establish it” (at [130];

(2)    the primary judge “was dealing with the evidence before him in the context of this particular terrain with the benefit of having taken that evidence on country” (at [139]); and

(3)    the “submission of the Banjima People that this court is ‘in as good a position … to make findings and draw inferences from the evidence’ is untenable… It is…inconceivable that this court, based on transcripts and the reasons for judgment, is in the same position as the primary judge who heard evidence on country from numerous witnesses over many days” (at [141]).

95    These observations are apt to describe the present case.

96    Against this background, the submission that “the findings by the primary judge that the areas comprising UCL 239 (Lake Mason) and UCL 14/15 (Tjiwarl) were not occupied by one or more members of the Claim Group when the claimant applications were made were wrong in fact” must be rejected.

97    The primary judge dealt with UCL 239 at [1233]-[1239]. She was not satisfied as to the occupation requirement (at [1239]). The applicant submitted:

The inference from the primary facts constituted by the totality of this unchallenged evidence that is reasonable to draw on the balance of probabilities is that Mr Lewis was regularly in and used the UCL 239 area, and adjacent areas associated with that area, and that he did so as of right under tradition and at times proximate to the claimant applications in 2011 and 2015. The inference is well open given that occupation of a particular area can be established by reference to occupation of a wider area which includes the particular area, as illustrated by Mr Ashwin’s evidence which the primary judge accepted established occupation of UCL 245 and 246. The position of Mr Lewis and UCL 239 is no different. The primary judge’s contrary conclusion was not reasonably open on the evidence (whether or not affected by legal error in labelling Mr Lewis’ presence and activity as ‘opportunistic’: Reasons 1 [1236]).

98    To the contrary, the way in which the primary judge evaluated the evidence relating to UCL 239, in contrast to the evidence relating to UCL 245 and UCL 246, demonstrates precisely why appellate restraint is required. At [1240], the primary judge correctly observed that there was more evidence about UCL 245 and UCL 246 than UCL 239. This observation was undoubtedly correct. The applicant’s contrary contentions are untenable. At [1258], in respect of some of the evidence about UCL 245 and UCL 246 ,the primary judge said:

Having had the benefit of seeing Mr Ashwin and other claim group members in this area and how they used it, including for the catching of kangaroos (as occurred during the on country hearing), it is my opinion that the claim group members do convey a sense of being established in this area. I also had the benefit of seeing how the senior men behaved in this area during the restricted men’s session.

99    There was not such evidence about UCL 239, in respect of which Mr Lewis alone gave evidence (at [1234]). The primary judge had the benefit of seeing and hearing the evidence of Mr Lewis about UCL 239. The fact that she was not satisfied about occupation of UCL 239 was a result of the weighing of all of the evidence. To the extent it was submitted that the primary judge failed to refer to certain evidence, two points must be made:

(1)    all of the areas Mr Lewis described as his “home”, his country, his ngurra, and which he had been taught about by his father and others as referred to in paragraphs [44], [48] and [52] of his witness statement, were outside UCL 239; and

(2)    Mr Lewis’s evidence about locations on UCL 239 is simply not as asserted in the submissions for the applicant. It is unnecessary to recite the whole of that evidence but the inescapable fact is that, when taken as a whole, Mr Lewis’s evidence was by no means as clear as the applicant’s submissions suggest about locations on UCL 239, in contrast to his evidence about other areas outside of UCL 239.

100    The primary judge accurately summarised the effect of Mr Lewis’s evidence about UCL 239 in [1234]-[1239] of her reasons. There is no material omission from this summary. On the evidence, the primary judge’s finding at [1239] was unaffected by any error as suggested. As the primary judge said at [1239]:

There is insufficient evidence to be satisfied that Mr Lewis’s activities in UCL 239 meant that he was, as a claim group member, “established” in that area. I accept that when his father was alive, and he was a boy and a young man, the situation may have been different. Then, it seemed to me, the evidence was capable of demonstrating much more regular and extended presence in the area. But that was not the case in or around June 2011, nor June 2015 [being the dates on which the claims were made].

101    The primary judge dealt with UCL 14 and UCL 15 at [1261]-[1268]. Again, the assertions of error are based on a skewed view of the primary judge’s reasons and the evidence with which she was confronted. As to the evidence of Mr James, it was reasonably open to the primary judge to characterise his evidence in the terms at [1266] as follows:

This evidence demonstrates that for a period of time coinciding with the lodgement of Tjiwarl #1, Mr James was a regular visitor to Tjiwarl, and that the area meant a great deal to him. However, he was not going there for any reason that had to do with asserting or exercising any possessory rights over the area, and I contrast this with the evidence from Mr Allan Ashwin about UCL 245 and UCL 246 in particular. Rather, Mr James was revisiting a favourite place on his country to have his lunch, and get some peace and quiet. His evidence about the BHP sign made it clear he considered it did not apply to him, and that is some evidence of entitlement, I accept. Overall, I consider this kind of activity had an opportunistic character to it, which is insufficiently consistent with the concept of occupation under s 47B.

102    Nor is there any error in the primary judge’s treatment of the BHP sign. At [930] the primary judge referred to the sign being erected with the involvement of the Aboriginal community, including Mr James, to keep non-Aboriginal people out of the area. As the primary judge noted at [1267] the sign is a BHP Billiton sign saying “do not enter”. Insofar as the persons to whom the sign is directed was concerned, the primary judge did not find the sign to be probative one way or another (at [1267]). Given that the sign is a BHP Billiton sign, this was a reasonable approach to take despite the evidence of the involvement of the Aboriginal community referred to at [930]. Insofar as Mr James was concerned, as the primary judge said at [1266], the fact that he did not see the BHP Billiton sign as applying to him was “some evidence of entitlement”. This too was a reasonable approach to take to the evidence. The submissions for the applicant, it seems, would have it that because Mr James was involved in the erection of the sign, it necessarily follows that he occupied the land. But this does not follow. The primary judge was entitled, indeed required, to weigh all of the evidence, which she did.

103    The applicant would have it that the primary judge erred by quoting paragraphs 74 and 75 of Mr James’ statement at [1264]-[1265], but not mentioning paragraph 73. But paragraph 73 of Mr James’ statement concerns a different area of land, outside of UCL 14 and UCL 15. In any event, the primary judge was not bound to quote or refer to every piece of evidence.

104    As to the evidence of Mr Muir, the primary judge’s assessment at [1268] was in these terms:

That leaves the evidence of Mr Muir, who described living in a caravan at Tjiwarl for eight months in the early 1990s. His evidence was that he also went to Logan Spring on 20 May 2015 with an anthropologist and then again on 3 June 2015. While evidence of a claim group member having lived on the Tjiwarl site for a period of eight months may well have been evidence of the kind to satisfy s 47B(1)(c), the timing of Mr Muir’s residence there is not consistent with the requirements of the provision. If, since that time, he had maintained a regular presence or regularly gone to camp there, or something of that nature, then in combination it may well have been enough. However, isolated to a period in the 1990s with only two subsequent visits for quite different purposes, it is insufficient for the applicant to discharge their burden in relation to Tjiwarl under s 47B.

105    The allegations of error in these conclusions are unfounded.

106    The two subsequent visits by Mr Muir were for different purposes when compared to his presence within the area when he lived there in the 1990s. The visit on 20 May 2015 was with an anthropologist, to show the anthropologist locations to which Mr Muir used to go in the 1990s. The fact that Mr Muir also took that opportunity to show his son and niece the country does not mean the primary judge’s characterisation of the visit as being for a different purpose was in error. The same conclusion applies to the visit on 3 June 2015 which involved the taking of photographs of Mr Muir harvesting various bush foods. This too was undoubtedly a different purpose from Mr Muir’s presence in the area in the 1990s when he lived in the area. Otherwise, Mr Muir’s evidence related to the 1990s, not (as the applicant would have it) more recent times. In any event, the suggestion that the primary judge’s findings were not reasonably open on the evidence is simply untenable.

107    The final aspect of the applicant’s appeal, relating to UCL 11, again exposes the untenable approach taken to the primary judge’s reasons and the appellate process. The facts are these. UCL 11 was known as the Yakabindie Homestead block because this is where the house associated with the Yakabindie pastoral station was located. As the primary judge found at [1276], the Yakabindie Homestead was occupied by those responsible for managing Yakabindie station, not any member of the claim group. A claim group member, Mr Allison, occupied part of UCL 11 at June 2011 because he lived in another house about 70 metres away from the Yakabindie Homestead. Despite difficulties in the evidence, the primary judge was prepared to find that Mr Allison still occupied this house in June 2015 (at [1275]). Ms Wonyabong had occupied another house on UCL 11 which is about 50 metres from the Yakabindie Homestead. Ms Wonyabong occupied this house in 1976 or 1977 until the 1980s or 1990s, not at the dates of the claims. The house was uninhabitable by that time but Ms Wonyabong had been assured by the lessee of Yakabindie station that there was no objection to her moving back into that house. The primary judge observed at [1278] that:

If members of the native title claim group need to be “established” over the whole area of a UCL parcel, rather than part of it, then the occupation by Ms Wonyabong and Mr Allison — essentially coexisting with those non-Aboriginal people who have occupied the Yakabindie homestead block — would be insufficient for the purposes of s 47B. However, the applicant appears to advance an argument that s 47B could apply to such parts of a UCL parcel.

108    The primary judge continued:

[1281] The applicant touched on this briefly in their extinguishment submissions:

The Applicants submit that occupation has been established over the whole of each individual 47B Area. However if the Court finds in respect of any individual 47B Area that occupation is established over part but not the whole of that 47B Area, then the Applicants submit that s 47B(2) applies to disregard prior extinguishment over that part of the individual 47B Area in respect of which occupation has been established. On the other hand, what was said in previous cases, and referred to in Banjima FFC at [103], should not be taken as meaning that s 47B(2) does not apply to disregard extinguishment in respect of any part of an individual 47B Area in circumstances where occupation has been established over some but not all of the 47B Area. Such an interpretation would be inconsistent with the beneficial interpretation that should be given to s 47B (as referred to in Banjima FFC [88]–[92]), and with the fact that occupation by Aboriginal persons is unlikely to correspond to the precise cadastral boundaries of the various non-native title interests that have been granted in the Claimed Area and which have resulted in the boundaries of the individual 47B Areas.

[1282] In my opinion, there is force in the applicant’s submission. The use of the term “area” in s 47B is not suggestive of a meaning which ties the word rigidly to cadastral boundaries. That is re-enforced by the use of the verb “covered”, which suggests there need not be complete overlap between the “area” over which any reservation etc is made and the “area” that is occupied by members of a native title claim group. Clearly there must be some overlap, for the disapplying effect of s 47B(1)(b) to have work to do. However, as the terms of s 47B(1)(b)(ii) itself make clear, the reservation etc may apply to only part of the land. This point was also made by the Full Court in Banjima [2015] FCAFC 84; 231 FCR 456 at [99]:

And, in the case of a parcel that is affected only in part, as contemplated in s 47B(1)(b)(ii), the exclusion affects only the part meeting the criterion, so that the balance of the land or waters in the area or parcel not within the satisfied criterion, is still subject to the application of s 47B(2).

[1283] One can readily see how this argument could be applied to a parcel of land under one title which was of a considerable size. One can also readily see how it might apply to land used for pastoral purposes where there has been a claim group member living on a small part of that land. Here, the circumstances are rather different. Two members of the native title claim group — separately, on different parts of the homestead block — have been coexisting. One has continued to do so (Mr Allison) and one (Ms Wonyabong) gave unchallenged evidence she had been recognised as entitled to continue to live there.

[1284] Nevertheless, to apply s 47B(2), accepting it should be applied beneficially, appears to produce a result that is inconsistent with the Court’s approach in Rubibi (No 7) [Rubibi Community v Western Australia (No 7) [2006] FCA 459].

[1285] Since the matter was only briefly addressed by the parties, and not expressly in relation to the Yakabindie homestead block, I propose to give the parties an opportunity to make further submissions on this issue, in accordance with the findings of fact I have made.

109    In subsequent reasons for judgment published as Narrier v State of Western Australia (No 2) [2017] FCA 104 the primary judge said at [10]:

The sole issue for resolution is whether my findings that both Mr Allison and Ms Wonyabong occupied (within the meaning of s 47B(1)(c)) parts of the Yakabindie Homestead block on 17 June 2011 and 22 June 2015, when the Tjiwarl #1 and #2 applications were respectively lodged, can have the effect of engaging s 47B(2) in respect of the whole of UCL 11.

110    The primary judge noted at [19] that “there is no reason in principle…why the ‘area’ could not be one comprising only part of a UCL, or including part of one UCL and part of another”, but continued in these terms:

[20] However, this preliminary view does not assist the applicant in the answer to the present issue. That is because I accept the respondent’s submissions that the determining factor is how a given applicant has identified the “area” for the purposes of s 47B(1)(a) in making the claim that s 47B(2) is engaged. However an applicant chooses to identify “the area” to which they contend s 47B(2) applies, it is that area which first, must not be subject to any of the exclusions in s 47B(1)(b), and second, must be “occupied” within the meaning of s 47B(1)(c). In my opinion, this must mean the whole of the area identified; otherwise the words “or parts of the area” would have been included in s 47B(1)(c).

…

[23] In the present case, the State is correct that the applicant identified the “area” in a way which covered all of UCL 11.

…

[26] It is clear that the “area” identified by the applicant for the purposes of engaging s 47B was the whole of the area of UCL 11. No smaller parts of the Yakabindie Homestead block were identified, in particular no smaller parts that were contended to be occupied by Ms Wonyabong and Mr Allison, in contrast to the whole of the block.

111    The applicant cavilled with this by noting that in the agreed statement of extinguishment issues the applicant had referred to the whole or parts of various areas in paragraphs 29 and 31, and that the heading to UCL 11 was “Part of UCL 11 (Yakabindie)”. The applicant said that if this was insufficiently clear, it applied for leave to amend its contention to refer to part of UCL 11. The problem with all of this is simple, however. The applicant never identified for the primary judge which part of UCL 11 was said to be the subject of s 47B. UCL 11 is a single block on which three houses are located including one, the Yakabindie Homestead, being occupied by persons other than members of the claim group. The applicant never descended to the level of detail which would be necessary to permit the primary judge to identify those parts of UCL said to be occupied by claim group members. The applicant did not do so despite the primary judge reserving the question of occupation of UCL 11 for further submissions. No issue of principle arises about the meaning of “area” in s 47B or the beneficial operation of s 47B. It is apparent that the primary judge took the most beneficial view of the evidence as reasonably possible but was ultimately cofounded by the fact that, one way or another, an applicant must identify the area it contends is subject to s 47B of the NTA. For an area such as UCL 11, on which three houses are located and only two of which could possibly be said to be occupied by members of the claim group, a claim over the whole of the parcel cannot succeed and, if a claim is to be made over part of the parcel, the applicant must identify that part in some meaningful way.

112    As the State submitted, is the relevant part the two houses alone, the houses and some unknown amount of curtilage, or something else? The occupation of the Yakabindie Homestead by persons other than claim group members could not simply be ignored and called for the areas said to be occupied by claim group members to be identified with specificity. Having given the applicant the opportunity to make further submissions about the issue, it was incumbent on the applicant to give the primary judge sufficient information and a clearly articulated claim to a specific part of UCL 11. The applicant did not do so. The leave application itself before this Court still did not identify with any specificity that part of UCL 11 said to be occupied. The application for leave to amend should be rejected. The grant of leave would be meaningless. It would still not be known which part of UCL 11 was subject to s 47B. The applicant had the opportunity to make a case before the primary judge for a specific part of UCL 11 to be the subject of s 47B, but did not do so.

113    For these reasons the applicant’s cross appeal must be dismissed. Apart from this, the notice of contention was not pressed by the applicant and nothing need be said about it.

Associate:

Dated:    1 February 2018

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SCHEDULE OF PARTIES