FEDERAL COURT OF AUSTRALIA

Adnyamathanha People No 3 Native Title Claim v State of South Australia

[2014] FCA 101

THE COURT ANSWERS THE QUESTIONS IN THE CASE STATED AS FOLLOWS:

1.    Is the perpetual lease land referred to at items 1 to 16 in the attachment to these orders an area (or areas) in respect of which s 47A(1)(b)(i) of the Native Title Act 1993 (Cth) (the NT Act) applies?

Yes.

2.    Is the perpetual lease land referred to at items 1 to 16 in the attachment to these orders an area (or areas) in respect of which s 47A(1)(b)(ii) of the NT Act applies?

Yes.

3.    Is the freehold land referred to in items 17 to 25 in the attachment to these orders an area (or areas) in respect of which s 47A(1)(b)(i) of the NT Act applies?

No.

4.    Is the freehold land referred to in items 17 to 25 in the attachment to these orders an area (or areas) in respect of which s 47A(1)(b)(ii) of the NT Act applies?

Yes.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    With the approval of the Court, the parties have stated a case pursuant to r 38.01 of the Federal Court Rules 2011 (Cth) (the Rules) concerning the application of s 47A of the Native Title Act 1993 (Cth) (the NT Act) to certain parcels of land which are part of the claim area of a native title claim. The claim itself is over a substantial area of land to the north of Hawker in South Australia.

2    The parties agree that native title was otherwise extinguished by the historic grant of perpetual leases over those parcels of land under consideration. However, the applicant maintains that s 47A of the NT Act applies so that all freehold and leasehold estates and any other interests created prior to the filing of the native title application are to be disregarded for all purposes under the NT Act in relation to the application.

3    The case stated addresses those questions.

BACKGROUND

4    The application for a native title determination under s 61 of the NT Act was filed on 18 May 2010 by Russell Coulthard and Alwyn McKenzie on behalf of the Adnyamathanha People (the applicant).

5    On 2 December 2010, the applicant amended the claimant application for determination to substitute an amended attachment to the Form 1 application (Attachment B1 to the Form 1 application) amending the areas covered by the application for the purposes of s 62(2)(a)(i) of the NT Act.

6    On 11 March 2011, a delegate of the Native Title Registrar accepted the application for registration under s 190A of the NT Act.

7    The land to which the application applies as described in “Substituted Attachment ‘B1’” to the amended application is made up of three categories of land comprising perpetual lease land, freehold land and un-allotted Crown land. That land is described in Attachment 3 to the case stated. Attachment 3 is appended to these reasons for decision. Column D cross refers to the amended application. Column H refers to documents in the case stated. The remaining columns of information are self-explanatory. The relevant title documents are produced with the case stated.

8    The three categories are:

(a)    perpetual lease land as set out at items 1-16 of Attachment 3;

(b)    freehold land as set out at items 17-25 of Attachment 3; and

(c)    un-allotted Crown Land set out in items 26-42 of Attachment 3.

9    The questions the subject of the case stated concern the perpetual lease land and the freehold land. Their answer depends on the construction and application of s 47A(1)(b)(i) and (ii) of the NT Act.

10    For the purposes of the case stated, it is agreed by the parties that at the time of the application, one or more members of the native title claim group occupied each of the areas comprising the perpetual lease land and the freehold land (items 1-25 in Attachment 3) for the purposes of s 47A(1)(c) of the NT Act so both that subclause and subclause 47A(1)(a) are satisfied.

11    As can be seen from Attachment 3, the perpetual lease land and the freehold land are held by the Viliwarinha Yura Aboriginal Corporation (VYAC). VYAC is registered as an Aboriginal and Torres Strait Islander Corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). It was first incorporated as an Aboriginal Association under the Aboriginal Councils and Associations Act 1976 (Cth) (ACA Act) on 13 July 1998, and its present registration flows from the transitional provisions in the Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and other Measures Act 2006 (Cth). Its Rules at material times, are in the material with the case stated.

12    Prior to February 2010, each of the 25 parcels of land now comprising the pastoral lease land and the freehold land was held under perpetual leases granted between 1890 and 1958 under Crown Land legislation of South Australia, either the Crown Lands Act 1929 (SA) or its ancestors.

13    In or about February 2000, the Indigenous Land Corporation (ILC) acquired the 25 perpetual leases. The ILC is established under s 191A(1) of the Aboriginal and Torres Strait Islander Act 2005 (Cth) (ATSI Act), previously called the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (ATSIC Act).

14    On 9 March 2001, subject to a Conditional Deed of Grant of Land dated 5 February 2001, between the ILC and VYAC, the ILC by Memorandum of Transfer transferred all the perpetual leases other than the lease identified at Item 4 of Attachment 3 to the VYAC. The documents evidencing the transfers, including the Conditional Deed of Grant, are included in the material with the case stated. ILC also lodged a caveat over the transferred leases based on a charge given under the Conditional Deed of Grant.

15    In relation to the lease referred to in item 4 of Attachment 3, on 16 May 2002 the ILC by letter agreed to, and on 17 June 2002 did, transfer by Memorandum of Transfer of that remaining perpetual lease subject to the same terms.

16    In relation to the freehold land, on 2 February 2009, by Deed of Consent and Grant of Money between the ILC and VYAC, the ILC consented to the freehold land, being the parcels of land identified at items 17-25 of Attachment 3, being converted from perpetual lease land to freehold land by the State in favour of the VYAC.

17    Then, by five instruments each titled “Surrender of Crown Lease for Land Grant” dated 6, 8 and 13 February 2009, the VYAC surrendered the land comprised in the perpetual leases identified at items 17-25 in Attachment 3 in exchange for freehold land grants. The surrender documents and the land grants were lodged for registration on 18 or 19 February 2009 resulting in the issue of Certificates of Title of the freehold land, being the land in items 17-25 of Attachment 3. VYAC is the registered proprietor of the land, and ILC is a caveator.

18    The parties agree and accept that the grants of freehold estate in the freehold land were not made for the provision of services (such as health and welfare services): see s 47A(2)(b) of the NT Act.

19    As to the un-allotted Crown Land, the parties agree that the un-allotted Crown land, being the land identified in items 26-42 of Attachment C, is land in respect of which the applicant claims that s 47B(1) of the NT Act applies. They further agree that no question arises for consideration by the Court on the case stated in relation to the un-allotted Crown land.

The Case Stated and the Answers

20    The questions stated for the Court are:

1.    Is the perpetual lease land referred to at items 1 to 16 in Attachment 3 an area (or areas) in respect of which s 47A(1)(b)(i) of the NT Act applies?

2.    Is the perpetual lease land referred to at items 1 to 16 in Attachment 3 an area (or areas) in respect of which s 47A(1)(b)(ii) of the NT Act applies?

3.    Is the freehold land referred to in items 17 to 25 in Attachment 3 an area (or areas) in respect of which s 47A(1)(b)(i) of the NT Act applies?

4.    Is the freehold land referred to in items 17 to 25 in Attachment 3 an area (or areas) in respect of which s 47A(1)(b)(ii) of the NT Act applies?

21    An affirmative answer to those questions, or any of them, then means that s 47A operates in respect of the land concerned in the manner prescribed by s 47A(2)(3) and (4) to the benefit of the applicant.

22    For the reasons given below, the answer to the four questions is:

1.    Yes.

2.    Yes.

3.    No.

4.    Yes.

23    These are my reasons for those answers.

The legislation

24    Section 47A was introduced into the NT Act by the Native Title Amendment Act 1998 (Cth) (the 1998 NT Amendment Act). It is as follows:

47A    Reserves etc. covered by claimant applications

When section applies

(1)    This section applies if:

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

(b)    when the application is made:

(i)    a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

(ii)    the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and

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

Prior extinguishment to be disregarded

(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 any of the following acts must be disregarded:

(a)    the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii);

(b)    the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services).

Note:    The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

Effect of determination

(3)    If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

(a)    the determination does not affect:

(i)    the validity of the grant or vesting or of the creation of the trust or reservation; or

(ii)    the validity of the creation of any other prior interest in relation to the area; or

(iii)    any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and

(b)    the non extinguishment principle applies to the grant or vesting or the creation of the trust or reservation or any other prior interest.

Exclusion of Crown ownership of natural resources

(4)    For the purposes of this section, a reference to the creation of an interest in relation to an area does not include a reference to the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity.

25    As noted, the criteria for s 47A(1)(a) and (c) are accepted to be satisfied for the purposes of the case stated.

THE SUBMISSIONS

26    The starting point for the satisfaction of s 47A(1)(b)(i) is clearly satisfied. That is that, at the time of the application, the claim area was held either as freehold estate or by perpetual lease held by VYAC. VYAC is therefore the “person” referred to in s 47A(1)(b)(i). The process by which VYAC came to hold the freehold land and the perpetual lease land took place before the application was made.

27    It is the following wording of s 47A(1)(b)(i) which gives rise to the dispute.

28    The wording of the alternative provided by s 47A(1)(b)(ii) also attracts dispute in this matter.

29    The applicant contends that s 47A applies to both the freehold land and the perpetual lease land, so that s 47A(2) operates so the extinguishment of the native title rights and interests of the applicant in that land by the original grants of perpetual leases are to be disregarded for all purposes of the NT Act. The savings provisions, following the operation of s 47A(2), prescribed by s 47A(3) and (4) are said to have no relevance to the land under consideration.

30    The applicant’s argument, broadly put, is that the word “grant” in s 47A(1)(b)(i) has a wider meaning than the original creation of a freehold estate or of a perpetual lease separated from the reversionary interest, that is a wider meaning than its conventional conveyancing meaning. Its meaning is said to be a “wide and generic one”, as a complement to the wider legislative purposes and processes of the Land Fund and Indigenous Land Corporation (ATSIC) Amendment Act 1995 (Cth) amending the ATSIC Act. As VYAC has objects and membership eligibility rules consistent with those required of an Aboriginal Corporation incorporated under the ACA Act or its successor the CATSI Act, the transfer to it of the perpetual lease land by the ILC, and the grant to it of the freehold land, both constituted a grant of the freehold land, both constituted a grant of the character contemplated by s 47A(1)(b)(i). It is said that a purposive construction of s 47A(1)(b)(i) supports that conclusion.

31    Alternatively, the applicant says that at the time of the application, the perpetual lease land and the freehold land was vested in VYAC so as to come within that subclause.

32    In relation to s 47A(1)(b)(ii), the applicant says that its applicability should be assessed from the perspective of the entity holding the beneficial interest in the land under consideration, having regard to the legislative context in which that entity was established. It is argued that it is not sufficient to have regard only to the legislative or executive structure under which the grant itself occurred to determine the status of the way in which the land in question is held.

33    The State submits that s 47A(1)(b)(i) does not apply to either the perpetual leases or the freehold title currently held by the VYAC identified in the case stated. The State’s position with respect to the application of s 47A(1)(b) in this case is said to follow the principles applicable to the construction of that provision identified in Hayes v Northern Territory (1999) 97 FCR 32 (Hayes), Risk v Northern Territory [2006] FCA 404 (Risk) and the Full Court’s decision in Moses v Western Australia (2007) 160 FCR 148 (Moses). Accordingly, it contends s 47A(1)(b) is to be construed from the perspective of the legislative or executive structure underlying the grant of the relevant interest, not from the perspective of the entity holding the relevant interest.

34    It also contends that a “vesting” of an area must also be understood consistently with the manner in which other interests in land are granted under s 47A(1)(b)(i), so the vesting of land to which the subsection applies must also have the same legislative source or foundation as a grant. It does not, therefore, extend the scope of operation of the subsection.

35    The State contends that, because the grant of the perpetual leases and the freehold titles under consideration took place under general legislative provisions that were not of the sort expressed to be for the benefit of Aboriginal peoples, the grants did not trigger the operation of s 47A(1)(b)(i) or (ii). So understood, s 47A(1)(b)(ii) does not apply to either the perpetual leases or the freehold land currently held by the VYAC because: (a) neither the leases nor the freehold estates were granted under legislation “expressly for the benefit of Aboriginal peoples …”; and (b) in the alternative, the grant of the leases and freehold title did not themselves impose the necessary condition, namely, that the land be held expressly on trust or reserved so as to secure the indefinite future use of the area for the benefit of Aboriginal peoples.

CONSIDERATION

36    The evident purpose of s 47A is to create a statutory exception to provisions which preclude native title being claimed over land which had been the subject of past extinguishment. Section 47A(1)(b)(i) and (ii) identifies two broad categories of land grant capable of enlivening the statutory exception.

37    The 1998 NT Amendment Act extensively amended the NT Act. Particularly relevant for present purposes, it introduced the quite complex provisions which are in Div 2A of Pt 2, dealing with validation of intermediate period acts, Div 2B of Pt 2 dealing with confirmation of past extinguishment of native title by certain valid or validated acts, and the much more detailed provisions dealing with future acts in Div 3 of Pt 2. In Div 4 of Pt 2 dealing with other provisions relating to native title was also then amended by introducing ss 47A and 47B.

38    Section 47A and s 47B (see Northern Territory v Alywarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 at [187] per Wilcox, French and Weinberg JJ) are intended to provide for the revival of native title in the circumstances to which they refers. They may be fairly described as a beneficial provision.

39    However, to state that is really to state no more than the obvious. The difficulty is to identify the legislative intention underlying the relevant wording so that the extent of their operation or scope can be ascertained.

(a)    the Earlier Decisions

40    Having regard to the respective submissions, it is first necessary to consider the extent to which the questions in the case stated have been addressed by earlier decisions of the Court.

41    Hayes concerned an application for recognition of native title over 166 separate parcels of land in and near Alice Springs. As the judgment exposes, the extinguishing effect on native title of a large number of different legislative and executive acts was addressed at [57]-[156] over pp 65-141. Olney J then considered whether s 47B of the NT Act operated in relation to certain of those parcels of land, where otherwise native title rights and interests had been extinguished. His Honour at [157] described s 47B as having the effect of mitigating some of the consequences of acts which have otherwise extinguished native title.

42    There is only a brief consideration of s 47A in the course of and in the context of considering the extinguishing effect of one of a number of Crown leases perpetual: see [108], esp at 83-84. His Honour, after referring to the terms of that lease and to s 47A said:

Section 47A does not apply to land covered by CLP 764. The lease was not granted under legislation of the type referred to in s 47A(1)(b)(i) nor is the land held expressly on any of the bases referred to in s 47A(1)(b)(ii).

That Crown lease was granted under the Crown Lands Act 1931 (originally the Crown Lands Ordinance 1931 (NT): see at [12]) which, his Honour said, was not of the type described in s 23B(9)(a), and the grant was not expressly for any of the purposes described in s 23B(9)(b); the character of the grantee – being incorporated under the ACA Act – did not “clothe the grant” with those characteristics.

43    It does not appear that the applicability or otherwise of s 47A was argued in any detail, or was particularly contentious. Nor does it appear that submissions of the kind put by the applicant in this matter were advanced. I do not think his Honour’s brief reasons concerning s 47A were intended to, or should, dictate the outcome of the questions now raised on the case stated.

44    Risk concerned an application for recognition of native title rights and interests in and around Darwin. The claim itself was ultimately unsuccessful because the continuity of practice of traditional laws and customs required by the NT Act had not been established. The issues of extinguishment were addressed relatively briefly. Nevertheless, there is reference to ss 47A and 47B at [873]-[919]. Within that section of the reasons for judgment, there is some consideration of the present issues only under the subheading “Section 47A: Whether the Tenure attracts its operation” at [875]-[882]. As [875] indicates, the focus was on s 47A(1)(b)(ii).

45    At [879], I made the following observations:

In my view, the requirement that the area be held “expressly” for the benefit (relevantly) of Aboriginal peoples does not require that the instrument granting the freehold or lease of the particular area contain that explicit condition. The requirement for the grant is contained in s 47A(1)(b)(i); it is that the legislation under which the grant of the freehold or leasehold interest have a particular character. A grant under the ALR Act would be a typical example. The separate condition imposed by s 47A(1)(b)(ii) that the area be held expressly for the benefit of Aboriginal people may be shown either by the terms of the grant or by the terms of the legislation under which the grant is made.

Those comments were not made with the benefit of full argument about the operation of s 47A(1)(b)(i), as presented on the case stated, and were not strictly speaking required for the purposes of the decision on the status of the particular leasehold land. There was no separate focus on the word “vested”. In that section of the reasons, what might constitute a “grant” of an interest for the purpose of s 47A(1)(b)(ii) was not explored.

46    The balance of that section of the reasons at [880]-[882] considers whether s 47A(1)(b)(ii) applied in relation to the particular land. In the particular circumstances, it was found that it did not do so. There was no express prescription under the relevant legislation or in the lease itself that that land was held for the benefit of Aboriginal people, and the constitution of the lessee did not require all its membership to be Aboriginal persons. Its actual membership composition was not proved.

47    Further, the remark at [881] that s 47A is intended to operate only where the legislation underlying the grant, or the grant itself, expressly imposes the restriction on how the land in issue may be used as contemplated by s 47A(1)(b)(ii) is therefore not part of the critical reasoning for the conclusion. The facts as proved in any event did not enliven the provision. Nor is the comment at [882] about the relevance of background to the grant.

48    For those reasons, I do not think that what was said and decided in Risk conclusively resolved the issues required to be considered for present purposes. Nevertheless, the observations made are of some assistance in addressing them. They are observations which are picked up as part of the submissions of the State.

49    Whilst both Hayes and Risk point towards a conclusion on the questions raised in the way the State contends, there are two other first instance decisions of the Court which appear to support the contentions of the applicant.

50    Neowarra v State of Western Australia [2003] FCA 1402 (Neowarra) was another claim under the NT Act for the determination of native title in which there were a wide range of issues, including extensive issues on extinguishment. Those issues in certain respects raised the application of s 47A, addressed in the judgment of Sundberg J at [679]-[718].

51    The Aboriginal Lands Trust (ALT) was established by the Aboriginal Affairs Planning Authority Act 1972 (WA) (the 1972 WA Act). By s 23 of that Act, its functions included acquiring and holding land for the benefit of persons of Aboriginal descent. His Honour at [699] found that a particular lease, granted under the Land Act 1933 (WA) (the 1933 WA Act) to the ALT was held expressly for the benefit of Aboriginal peoples within s 47A(1)(b)(ii) because s 23 of the 1972 WA Act so provided. Almost as an aside, he said that the 1933 WA Act was not legislation of the type the subject of s 45A(1)(b)(i). Again, it is evident that the issue was not debated there as has occurred in this matter.

52    In relation to pastoral leases, his Honour decided that s 47A could apply in the case of pastoral leases, so that s 47 did not exhaustively deal with the extent to which extinguishment by the grant of a pastoral lease should be disregarded, Sundberg J then addressed whether s 47A(1)(b)(ii) enlivened the general application of s 47A so as to disregard the extinguishing effect of a number of pastoral leases. He concluded that the leases held by the ILC were held expressly for the benefit of Aboriginal peoples. That conclusion was reached in each instance by reference to the terms of the Rules of the leaseholding entity: see for instance at [709]. The ILC had been established under s 191A of the ATSIC Act to assist Aboriginal persons to acquire and manage land. There were other leases in respect of which the same conclusion was reached where the leaseholding entity, not the ILC, was bound by similar rules: see at [706] and [714].

53    In Rubibi Community v Western Australia (No 7) [2006] FCA 459 (Rubibi), Merkel J reached a similar conclusion in respect of freehold titles held by associations incorporated under the ACA Act, having regard to the legislative provisions and the Rules of the title-holding entity: see at [93]-[94].

54    The brief observations of Beaumont and von Doussa JJ in Western Australia v Ward (2000) 99 FCR 316 at [366] concerning s 47A(1)(b)(ii) are to the same effect.

55    The need to have regard to the particular circumstances of each case was explicitly recognised by the Full Court in Moses. Relevantly, as appears at [118], the Full Court was required to consider whether the area of a particular lease was held expressly for the benefit of Aboriginal peoples, so as to enliven s 47A(1)(b)(ii). No issue arose on the appeal about s 47A(1)(b)(i): see at [120].

56    The Full Court at [128]-[144] considered the previous decisions of single judges, also addressed above, and the contentions of the parties. I respectfully adopt that analysis, in addition to my comments on those cases. It was noted at [138] that the difference between the two approaches to the presently relevant aspect of s 47A(1)(b)(ii) is the “perspective from which one considers whether land is held ‘expressly for the benefit of Aboriginal peoples’”.

57    The Full Court said at [145]:

In our view, those considerations lend support to the approach to the construction of s 47A(1)(b)(ii) adopted in Risk. However, each set of circumstances must be addressed separately, including in the particular legislative context in which those circumstances emerge.

Later, at [154], the Full Court said that the position is not free from doubt.

58    Whilst the nature and content of the concept of “grant” in s 47A(1)(b)(i) was not in issue in that case, it should be observed that the Full Court appears to have accepted that “grant” was used in a formal conveyancing sense. At [148], it is said without more analysis that as the grant of the relevant pastoral lease was made under the 1993 WA Act, s 47A(1)(b)(i) was not enlivened. The submissions now put on that topic on behalf of the applicant were not put in that case.

59    At [152] the Court then concluded, on the facts, and in the absence of any legislative or executive indication that the leaseholder was required to hold the particular land under consideration in a particular way, that s 47A(1)(b)(ii) also was not enlivened. It noted that the leaseholder company, under its constitution, was not required to operate expressly for the benefit of Aboriginal peoples, that its subscriber shares were not necessarily (or in fact) held by Aboriginal persons, and that even where its shares had been transferred to Aboriginal persons, they were not obliged to hold those shares or to exercise voting rights for the benefit of Aboriginal persons for any “communal or collective benefits rather than individual personal benefits”. The then majority shareholder, an entity incorporated under the Associations Incorporation Act 1895-1969 (WA), had objects consistent with serving the interests of Aboriginal persons, but (unlike the circumstances obtaining in Neowarra) it had not procured the leaseholder itself to change its Memorandum and Articles of Association to so confine the purpose of its business and activities.

60    In my view, none of those decisions require their direct application to resolve the questions in the case stated without considering the merits of the contentions of the parties.

61    In relation to s 47A(1)(b)(i), the particular arguments now advanced by the applicant have not previously been addressed, and although cases referred to seem to have adopted the position for which the State contends without the benefit of full argument or careful consideration.

62    In relation to s 47A(1)(b)(ii), it appears necessary to address the particular legislative context and factual circumstances to determine if that sub-clause does enliven s 47A generally, although the weight of the consideration to date clearly points to the relevance of the terms of the Constitution or Rules of the entity holding the relevant interest in the land as well as of the statutory framework under which it has come into existence and performs its functions.

(b)    the factual and statutory context

63    ILC took the transfers of the 25 areas of land that are in issue early in 2000. As noted, it took its existence from the ATSIC Act. The provisions relevant to the status of the areas of land at the time of the application are in the ATSI Act.

64    ILC’s purposes are set out in s 191B. It is to assist Aboriginal persons to acquire land, and to manage indigenous-held land, for their economic, environmental, social or cultural benefit. Its land acquisition functions under s 191C(a) and detailed in s 191D(1)(a) and (b) include acquiring by agreement interests in land for the purposes of granting interests in land to Aboriginal corporations. An Aboriginal corporation is defined in s 4(1) to include a body corporate registered under the CATSI Act (as VYAC is). Section 191D(1A) empowers the ILC to grant an interest in land subject to such terms and conditions as it determines.

65    If a body corporate such as VYAC has acquired an interest in land from the ILC under s 191D(1)(a), s 191S(2) provides that the body must not dispose of that interest, or charge any of its assets which consist of or include that interest, without the consent of the ILC. Section 191SA provides, inter alia, that any obligation of such a body corporate to the ILC under the terms and conditions of a grant arising under s 191S is taken to be an interest of the ILC in the land to which the obligation relates.

66    The ILC therefore controls the disposition by an Aboriginal corporation of land or an interest in land which it has been granted by the ILC, and as noted the ILC is bound by the provisions referred to in its dealing with any land it acquires. That is reinforced by s 191T. An Aboriginal corporation may dispose of land or an interest in land it has been granted by the ILC (or it has acquired by monies granted to it by the ILC) to the ILC, and the ILC then holds the surrendered interest in land as if it had been acquired by the ILC under s 191D(1)(b) as part of its land acquisition functions.

67    Section 191D(3)(a) emphasises that the ILC must give priority to acquiring and granting interests in land to Aboriginal corporations. Senior counsel for the applicant also pointed out that s 191D(4) demonstrates an awareness of the NT Act by requiring the ILC to search any Registers of the National Native Title Tribunal to ascertain the existence and status of claims made under the NT Act in relation to land under consideration for acquisition. There are other provisions which also emphasise the ILC’s role in securing social or cultural benefits for Aboriginal persons by the performance of its functions: ss 191F(2)(aa), 191N(2)(a), 191P and 191Q.

68    As noted, VYAC is an Aboriginal corporation registered under the CATSI Act. It was eligible to, and did, receive from ILC “grants” of an interest in the 25 allotments in issue, namely transfers of what was then the 25 perpetual leases listed in items 1-25 of Attachment 3 (other than the lease referred to in item 4) on 9 March 2001. The lease referred to in item 4 was transferred on 17 June 2002.

69    The perpetual lease land (items 1 to 16) then remained in the name of VYAC as the holder of the perpetual lease land at the time these proceedings commenced. The Memoranda of Transfer in each instance was expressed to be “in order to vest the … land pursuant to s 191D” of the ATSIC Act.

70    That was the relevant status of the perpetual lease land at the time of the application.

71    As was pointed out, the Conditional Deed of Grant of Land, in its recitals, refers to s 191D of the ATSIC Act and records that the ILC wished to grant its interest in that land to VYAC “as Trustee” for its members and notes that only adult traditional owners of the land as Aboriginal persons of Adnyamathanha descent are entitled to be members of VYAC.

72    By clause 2.1, the ILC granted its interest in the land to VYAC ‘to hold on trust for the Traditional Owners. That grant is subject to Aboriginal people having a controlling interest in VYAC, VYAC’s compliance with the terms of the deed and that no order be made for VYAC’s winding up. In the event that any of those conditions are not met, VYAC is to transfer back its interest in the land to the ILC.

73    By clauses 3 and 4, VYAC agreed that it would ensure the perpetual lease land is applied solely towards the promotion of the objects of VYAC ; that the land is held expressly for the benefit of the members of VYAC; that the land is not used for personal profit or gain of any of VYAC’s members or employees; that it will not dispose of its interest in, or give a charge over, the land without the consent of ILC (and only in accordance with s 191T of the ATSI Act); that VYAC will not enter into agreements, arrangements or commitments which are inconsistent with the purpose of the grant and that VYAC will comply with the ATSI Act. To provide security for the ILC, by clause 5, VYAC charged its estate in the perpetual lease land in favour of the ILC, and agreed that the ILC may register a caveat over the land. The ILC duly lodged a caveat over each area comprising the perpetual lease land, protecting the charge to ILC created by that Deed. The caveat was registered on 9 March 2011.

74    It was noted above that one area of the perpetual lease land, referred to in the documents as the Cotabena Swamp portion of Yappala, was transferred on 17 June 2002, on the same terms and conditions as the original Conditional Deed of Grant. It is agreed that its status is the same as the other areas of the perpetual lease land.

75    In the case of the freehold land, on 2 February 2009, the ILC and VYAC entered into a Deed of Consent and Grant of Monwey (sic, Money), by which the ILC consented pursuant to s 191S(2) of the ATSIC Act to VYAC surrendering nine of the perpetual leases, in order for those leases to be converted to freehold interests, and to paying the ‘conversion fee’. The ILC’s consent was subject to the conditions that VYAC must not, without the prior agreement of the ILC:

(a)    dispose of its legal or equitable interest in the land;

(b)    give a charge with respect to its legal or equitable interest in the land;

(c)    enter into any scheme by which the control of VYAC by Aboriginal persons is diminished in favour of non-indigenous interests or persons; and/or

(d)    enter into any scheme by which VYAC’s control over or interest in the land is diminished in favour of a third party.

76    VYAC by that Deed also agreed that it must remain an Aboriginal Corporation; substantially use the land for the “permitted use” (defined in clause 1 as referring to uses under the original grant “being a pastoral enterprise or such other use that the objects of the Corporation permit which provide benefits for the members of the Corporation”); and notify the ILC of any intended amendment to its rules that relate to its objects or membership not less than 14 days prior to any resolution being made to effect the intended amendment. It also agreed to charge its legal and equitable interest in the land in favour of the ILC and consented to the ILC lodging a caveat, and permitted the ILC to register a mortgage over the freehold land to secure its adherence to its promises.

77    Following this, as noted earlier in these reasons, by five instruments entitled “Surrender of Crown Lease for Land Grant”, entered on 6, 8 and 13 February 2009, VYAC surrendered the nine perpetual leases to the State. In exchange the State made grants of freehold estate to VYAC over the freehold land. The freehold interests were registered on 18 or 19 February 2009. The parties agree that the grants of freehold estate were not made for the provision of services.

(c)    Section 47A (1)(b)(i)

78    When the NT Act was first enacted, it is fair to say that its approach was relatively straightforward. Substantively, Part 2 dealt with native title. Sections 10 and 11 provided for the recognition of native title, and that it may not be extinguished contrary to the NT Act. In Division 2, in comparatively brief terms, it set out the status and effect of past acts of the Commonwealth by ss 14-15 and s 16 preserved native title where the past act might otherwise affect land reserved for the benefit of Aboriginal peoples or the rights and interests of Aboriginal peoples. It provided by s 19 for State or Territory legislation parallel to ss 15 and 16. Division 3 (ss 21-44) dealt with future acts and native title. Division 4 contained “Other provisions relating to native title”, relevantly s 47 dealing with pastoral leases held by native title claimants.

79    Section 47 provides that the extinguishment of native title by the grant of a pastoral lease, or by the doing of acts under a pastoral lease, must be disregarded but the lease and entitlements under the lease have priority and the non-extinguishment principle defined in s 238 applies. It is accepted that s 47 does not “cover the field” of the relationships between native title and pastoral leases and rights under pastoral leases: see the remarks of Sundberg J in Neowarra at [699]-[703].

80    The 1998 NT Amendment Act extensively amended the NT Act, including provisions relating to extinguishment of native title in Division 2 of Part 2. It added Division 2A concerning the validation of intermediate period acts and Division 2B concerning the confirmation of past extinguishment of native title by certain valid or validated acts. There were also extensive changes to, and additions to, Division 3 dealing with future acts and native title.

81    The point to be made from those amendments, for present purposes is the thoroughness of the topics covered by that series of amendments and the obvious care and detail reflected in the amendments. That is, in part, the context relevant to the construction and application of ss 47A and 47B (both introduced by the 1998 NT Amendment Act). Section 44B was added in Division 4 of the NT Act at the same time.

82    The focus of the applicant in this matter, at least in part, is upon the meaning of the term “grant of the freehold estate or lease” in s 47A(1)(b)(i). Section 44H is said to avoid doubt. It prescribes that the rights under a “lease, licence, permit or authority” and their exercise have priority over native title rights. Section 44H(a) refers to the valid “grant, issue or creation of a lease, licence, permit or authority”. The wording used, namely “grant, issue or creation”, does not readily encompass a focus on particular rights or restrictions or limitations on those rights by an agreement effecting, or supporting, or being effective conditional upon, the transfer of a lease. Whilst the relevant wording in s 47A(1)(b)(i) is a little different, relating to a freehold estate or a lease, it cannot easily be said that the grant of a lease as there used is intended to encompass the transfer, or the circumstances surrounding the transfer, of a lease. In essence, that is the applicant’s first contention, namely that the term “grant” covers the transfer of leases issued under the Crown Lands Act 1929 (SA) or its predecessors.

83    In my view, the text of s 47A(1)(b)(i) supports the specific technical conveyancing meaning for “grant”.

84    There are three types of interest in the claimed area provided for in this subclause: a freehold estate, a lease, or a “vesting” of the area. The extent to which the word “vesting” might assist in the proper construction of the subclause requires separate consideration.

85    In the case of freehold land, the relevant part of the adjectival phrase limiting the description or defining the circumstance in which s 47A will apply are the words: “if the grant of the freehold estate … took place under legislation that makes provision for the grant … of such things only to, in or for the benefit of Aboriginal peoples”. That is, the grant must take place under legislation of a particular character. The focus, in my view, is upon the nature of the legislation under which the grant of the freehold estate took place.

86    That is consistent with the views expressed in Hayes and Risk, and as assumed in Neowarra and in Moses. There is nothing in Rubibi to suggest to the contrary.

87    In the case of leased land, the apposite wording from s 47A(1)(b)(i) is that the lease comes within the provision if the grant of the lease took place under legislation that makes provision for the grant of the lease only to, in or for the benefit of Aboriginal peoples. It is clear that the word “lease” is used as a noun and the description is relevantly of the nature of the tenure in force at a particular time and the word “grant” catches the way in which that tenure (freehold estate or lease) took place.

88    It is correct to observe, as the applicant does, that Div 4A of the ATSI Act, containing s 191A referred to above, was introduced in 1995 only a relatively short time before the 1998 Amendment. Thus, the argument ran, the use of the word “grant” in those provisions – which clearly encompasses the transfer of a leasehold interest in land (either to or by the ILC) – should be given the same meaning in ss 47A of the NT Act. In my view, there are three reasons why that is not the case, in addition to the general constructional considerations to which I have referred.

89    The first is contextual. If the legislature had intended that to be the case, being mindful of the way the word “grant” is used in Div 4A of the ATSI Act, that could have been made clear quite readily. The second is textual. There is a difference between the wording of s 191A and like provisions of the ATSI Act, where what is addressed is the “grant” of an interest in land, and of s 47A where the “grant” refers to the freehold grant itself or to the lease itself.

90    The third and more significant step in that analysis, as a complement to the first of those reasons, arises from the term “vested” or “vesting” in s 47A(1)(b)(i).

91    In my view, the separate treatment of the concept of vested or vesting in s 47A(1)(b)(i) is significant. The state of affairs it provides for is that, at the time of the application, the area in question is vested in the person. The vesting event itself then must have the requisite characteristic of having taken place under legislation of the specified kind.

92    In other words, there are three states of affairs or types of circumstances which must exist at the time of the application:

(1)    the existence of a freehold estate;

(2)    the existence of a lease in force; or

(3)    the existence of the area being vested

in a person (here, VYAC). Then the subsection requires that the event by which that statement of affairs arose (and continued to the time of the application) be:

(1)    the grant of the freehold estate;

(2)    the grant of the lease; or

(3)    the taking place of the vesting.

Its focus is upon the time at which that state of affairs arose. The subsection requires that the event, when it took place, have a particular characteristic: that it was under legislation that makes provision for such grants or vesting only to, in or for the benefit of Aboriginal peoples.

93    The consequence of that analysis of the wording of s 47A(1)(b)(i) is that I do not accept the applicant’s contention that both the freehold land and the perpetual lease land are covered by that subclause in respect of the grant of either the lease or the freehold titles.

94    Both the freehold land and the perpetual lease land, it is accepted, were originally the subject of the various perpetual leases listed in Column E of Attachment 3 and it is further accepted that they were not granted under legislation that made provision for those grants only to, in or for the benefit of Aboriginal peoples. That legislation was the Crown Lands Act 1929 (SA).

95    I do not consider that the subsequent dealings with the perpetual lease land and the freehold land engage s 49A(1)(b)(i) the way primarily contended by the applicant, that is by the proposition that “grant” in s 47A(1)(b)(i) includes the processes by which the perpetual lease land and the freehold land came to be held by VYAC.

96    In the case of the perpetual lease land, the relevant transfers of the leases were firstly to ILC in February 2000 and then by ILC to VYAC on 5 February 2001 subject to the caveat to ILC (other than the lease over the land in Item 4 of Attachment 3, which was transferred by ILC to VYAC on 17 June 2002). For the reasons I have given, those transfers did not constitute the grant of the leases within that provision.

97    I do not think that the wording of s 47A(1)(b)(i) is expressed widely enough to encompass the transfer of the perpetual leases to VYAC by ILC, or to encompass the processes by which the freehold land came to be granted to VYAC.

98    In relation to the perpetual leases, those vested in VYAC at the time of the application must have the quality of being granted under legislation of a particular character. The word “grant” would not have a different meaning when applied to freehold land from that when applied to leasehold land. The grant of the freehold estate by the State to VYAC in 2009 was not made under legislation of the required character. Typical legislation where that would arise would include the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and in South Australia the Aboriginal Lands Trust Act 1966 (SA), Anangu Pitjantjatjara Land Rights Act 1981 (SA) and Maralinga Tjaruta Land Rights Act 1984 (SA).

99    The wider legislative context referred to by the applicant, in my view, does not point to a different conclusion.

100    On the other hand, I do not see why the third alternative, namely that the perpetual lease land was vested in VYAC at the time of the application is not enlivened. There was little debate in submissions about the scope of the words “took place”. They are not technical words. In a technical sense, the transfer of the perpetual leases took place under the Real Property Act 1886 (SA), because that is the legislation which provides for the transfer of interests in land registered under that Act. In a colloquial sense, they took place either under the ATSI Act because it was the ILC exercising its powers under the ATSI Act which enabled it to transfer the perpetual leases to VYAC. It is clear enough that such a vesting under the ATSI Act is a vesting that meets the further requirement of s 47A(1)(a)(i), namely that it makes provision for the vesting of such things only to, or for the benefit of, Aboriginal peoples.

101    That approach gives work to the alternative of “vesting” in s 47A(1)(a)(i), whereas that alternative would have little work to do if it is treated simply as the mirror image of the word “grant” used in its conventional conveyancing sense. It gives effect to the reality that ILC, by the exercise of its powers and functions under the ATSI Act, is in fact ensuring that such land is held for the purposes contemplated. It fits with the contention of the applicant that the legislature would have had in mind the purpose and effect of the ATSI Act, more specifically the functions and powers of the ILC as introduced in 1995, when it introduced ss 47A and 47B into the NT Act by the 1998 NT Amendment Act. More generally, it would seem to accord with the beneficial purpose of the legislative provisions.

102    The position is a little more complex in relation to the freehold land. The grant of the freehold title was made in a technical or formal sense under the Real Property Act 1886 (SA). Immediately before the grant, VYAC held the leasehold interest in circumstances where the vesting of that interest from the ILC satisfied s 47A(1)(b)(i) for the reasons just given. That interest was surrendered, albeit upon the terms and in the circumstances referred to above.

103    For the reasons given above, in my view the grant of the freehold estate by the State, in pursuance of that arrangement, was not a grant of the freehold estate which took place under legislation of the character required by s 47A(1)(b)(i). Nor do I think that the vesting of the freehold estate took place under such legislation. The vesting took place under the documentary arrangement referred to. That documentary arrangement was secured by the ILC apparently exercising its powers under the ATSI Act, but the freehold interest of VYAC was not vested directly by any action of VYAC. VYAC, for its part, agreed to limit the bundle of rights and interests which it obtained as the holder of the freehold estate, by the terms of the Deed of Consent and Grant of Money between the ILC and VYAC. That is an inter partes arrangement between the ILC and VYAC. That Deed was imposed by the ILC as a condition of the surrender by VYAC of its leasehold interest in the freehold land (then held as perpetual lease land) under s 191S(2) of the ATSI Act. That is not, on its face, a Deed to which the State is a party. By the Deed, the ILC made a grant of money under s 191D(1)(c) to cover the State’s costs of accepting the surrender of the leases, and of granting the freehold title. The Deed was therefore an integral step in the process by which the vesting of the freehold land took place. There is much to be said, in the circumstances, for adopting a wide constructional choice for the words “took place” in s 47A(1)(b)(i). However, having regard to the alternative provided by s 47A(1)(b)(ii), I do think the words “took place” should be construed as applying to, and limited to, the instrument by which the vesting took place, rather than to extend to the instruments which set the scene for that vesting. That preserves the focus which s 47A(1)(b)(i) has upon the direct way in which the vesting took place.

104    Consequently, I conclude that the freehold estate held by VYAC at the time of the application (albeit charged to the ILC under the terms of that Deed) was not granted by the ATSI Act, and the vesting of that interest did not take place under the ATSI Act. The freehold land does not therefore attract the application of s 47A by the application of s 47A(1)(b)(i).

(d)    Section 47A(1)(b)(ii)

105    I have referred above to the decisions of the Court in which s 47A(1)(b)(ii) has been addressed. For the reasons given, I do not consider that any of those decisions direct a conclusion as to the proper construction and application of subclause (b)(ii) to s 47A(1) in the present circumstances.

106    In the light of the arguments which have been advanced, I have come to the conclusion that s 47A(1)(b)(ii) directs attention to the status of the area in question upon the whole of the evidence. In essence, that is because – given the constructional choices reflected in the respective submissions of the applicant and the State – that conclusion is more consistent with the purposes of s 47A generally.

107    The establishment of the ILC and the provision for its functions in 1995 under the ATSI Act, by the Land Fund and Indigenous Land Corporation (ATSIC Amendment Act) 1995 (Cth) was described by the Prime Minister to Parliament at the time by the Explanatory Memorandum as “the second major plank in the government’s response to Mabo and the challenges thrown up by that decision”. There is some suggestion in the Explanatory Memorandum that the ILC’s role was a complement to the recognition of native title land rights and interests under the NT Act. For instance, the Explanatory Memorandum says:

The purpose of this Bill is to establish a Land Fund and an Indigenous Land Corporation to enable Aboriginal and Torres Strait Islander people to acquire and manage land in a way that will provide them with social, cultural and economic benefits. The fund is being established in recognition of the fact that most indigenous people will not benefit from the High Court’s Mabo (No 2) decision and the Native Title Act 1993 because they were dispossessed of their land and cannot therefore demonstrate the continuous association necessary to prove Native Title.

108    Consequently, as a “second plank” in the policy, it might be said that land acquired by the ILC and then granted to an Aboriginal corporation, or land acquired by an Aboriginal corporation with funds granted by the ILC, was anticipated to be land in respect of which native title rights and interests would not exist.

109    However, if such a mutually exclusive regime was intended, in my view that would have been made explicit in the ATSI Act, and alternatively or additionally in the NT Act by the 1998 NT Amendment. That does not appear. To the contrary, there is no such indication in the 1998 NT Amendment. If such land should be recognised as land in which native title rights and interests do exist and have existed since European settlement, there is no apparent reason why the intervention of the ILC in fulfilment of its land acquisition functions under the ATSI Act should be taken thereby to deprive the holders of those native title rights and interests of that recognition.

110    As noted above, the 1998 NT Amendment introduced very extensive provisions in Div 3 of Part 2 of the NT Act dealing with future acts, including significant refinements to the “right to negotiate” procedures in subdiv P. That was both the opportunity and the occasion to provide, if it was intended, that land held by an Aboriginal corporation “through” the land acquisition functions of the ILC should be excluded from the application of those provisions. It does not do so.

111    I have used the word “through” as a general expression to encompass any means by which the ILC has assisted in an Aboriginal corporation obtaining an interest in land. Indeed, it may be added that land held by an Aboriginal corporation which in all respects satisfies s 47A(1)(b)(ii) in fact may need not have been obtained through the ILC at all. That is not the present situation so it does not need to be fully explored.

112    It is consistent with that conclusion that the general purpose of ss 47A and 47B is to enable Aboriginal people in occupation of an area where there are no longer competing third party interests to have the Court disregard the earlier tenure history of the area in determining whether native title rights and interests exist. It is also consistent with that conclusion that s 47A(3) should address, as it does, the status of existing prior interests and Crown interests and the applicability of the non-extinguishment principle as explained in s 238 of the NT Act.

113    In my view, the structure of s 47A(1)(b) also supports that conclusion. Section 47A(1)(b)(i) addresses the process by which the interest of the person holding the interest came to acquire (and hold) it. Section 47A(1)(b)(ii) addresses as an alternative the state of affairs which is the basis of the current occupancy or right to occupancy of the area.

114    In relation to the perpetual lease land, having regard to the status of VYAC as an Aboriginal corporation, the conditions under which it holds each of the areas of the perpetual lease land – in particular the terms of the Deed of Grant between the ILC and VYAC, the caveat registered consistent with those terms, and the restrictions on the membership of VYAC – satisfy the wording of s 47A(1)(b)(ii). I adopt with respect the approach of Sundberg J in Neowarra to the meaning of “expressly” at [697]-[698] and at [709] and [714].

115    The State contends that the relevant state of affairs may only be created by the State itself, and not by the actions of an entity such as the ILC in its dealings with an Aboriginal corporation such as VYAC. Consequently, the only admissible and relevant material to identify the state of affairs to which s 47A(1)(b)(ii) refers is the legislative or executive acts of the State itself. As a corollary to that proposition, the State points out that its reversionary interest should not be vulnerable to defeat by the inter parties arrangements between the holder of an ordinary leasehold interest and a transferee of that interest, or indeed by the holder of that interest itself, even by “a short-term expedient composition of a holding entity without providing for it to have such an operation expressly”.

116    I do not accept those contentions. It is not necessary or appropriate to go beyond the particular circumstances under consideration. They are that the ILC, a statutory entity established under Commonwealth legislation, acting within its powers and performing its functions, by the matters referred to above in relation to, and with, VYAC has brought both the perpetual lease land and the freehold land within the apparent scope of s 47A(1)(b)(ii). The documents expressly record the nature of that arrangement, and effectively the status of the land in question. I do not think there is any strong reason why s 47A(1)(b)(ii) in those circumstances should be construed so as to exclude that arrangement from consideration when addressing the application of s 47A through s 47A(1)(b)(ii). If that were intended, as I have remarked, it could readily have been made explicit. The ILC for its part cannot convey to VYAC an interest greater than it holds. The State, for its part, holds the radical title to the land, and does so subject to such native title rights and interests as are consistent with being recognised under the common law and satisfy his requirements of the NT Act. The prospect generally of “private entities structuring corporate or legal arrangements in a particular way” to attract certain land within the operation of s 47A may give rise to a need, in that context, to consider the scope of s 47A(1)(b)(ii). The relevant context here is a much more confined one, involving the “two planks” of Commonwealth legislative action to operate for the benefit of Aboriginal peoples.

117    I accordingly find also, and alternatively, that s 47A is enlivened because the perpetual lease land comprises areas of land in respect of which s 47A(1)(b)(ii) of the NT Act applies.

118    In the case of the freehold land, I have reached a similar conclusion. The freehold land is held by VYAC (with its particular characteristics under its Rules, referred to above). It was granted the freehold interests in that land in a way which made its holding of those interests subject to its obligations to the ILC under the Deed of Consent and Grant of Money. By those obligations, VYAC may not dispose of its legal or equitable interest in that land without the ILC’s prior consent. It is required to secure by charge to the ILC the performance of its covenants to the ILC under that Deed. Those covenants preclude it from changing its status, and oblige it to hold and use the freehold land only for particular purposes consistent with its Rules. They are express restrictions or limitations which satisfy the requirements of s 47A1)(b)(ii).

119    The combination of those factors, in my view, means that VYAC holds its interest in the freehold land in a way which falls within the wording of s 47A(1)(b)(ii).

120    I accordingly find that s 47A is enlivened in respect of the freehold land because it comprises areas of land which s 47A(1)(b)(ii) of the NT Act applies.

CONCLUSION

121    For those reasons, the answers to the four questions in the case stated are given in the terms set out in [22] above.

Associate:

Dated:    19 February 2014

Attachment 3

Attachment 3

Attachment 3