FEDERAL COURT OF AUSTRALIA

Roberts on behalf of the Widjabul Wia-Bal People v Attorney-General of New South Wales [2020] FCAFC 103

ORDERS

THE COURT ORDERS THAT:

1.    The appeal filed 27 August 2019, as amended by leave granted on 17 February 2020, is dismissed.

2.    The orders made on 30 July 2019 answering separate questions (1), (2), (4) and (5) are set aside.

3.    By close of business on 24 June 2020, the parties are to file submissions (limited to 3 pages) on the question of whether the order made on 30 July 2019 answering separate question (3) should be set aside and the issue will be determined on the papers and without a further oral hearing.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    This appeal concerns four areas of Crown land in New South Wales. The first two areas, Areas 572 and 115, are each covered by a reservation from sale, or from sale and lease in the latter case, for public purposes. The second two areas, Areas 460 and 624, are each covered by a reservation and a permissive occupancy licence for grazing.

2    A separate question was posed in respect of each of these Areas before the primary judge. His Honour answered all of those questions contrary to the contentions of the appellant ([2019] FCA 1158 at [138]–[139]). His Honour also answered a question (Question 3) in respect of a fifth area, Area 74, but that answer is not challenged in this appeal.

THE GROUNDS OF APPEAL

3    Having been granted leave to appeal and leave to file an amended notice of appeal, both of which applications were unopposed, the appellant now seeks to pursue the following grounds of appeal in respect of his Honour’s answers to the questions mentioned above:

The reservation from sale question (ID Area 572) (Reasons [54]–[79])

1.    Having held that a reservation under s 87 of the Crown Lands Act 1989 (NSW) (the 1989 Act) is not a reservation within s 47B(1)(b)(ii) of the Native Title Act 1993 (Cth) (the NTA) (Reasons [84]––[119] ID Area 74), the primary Judge erred in holding that when the claimant application was made on 24 June 2013 ID Area 572 was covered by a reservation within s 47B(1)(b)(ii) by virtue of a reservation made on 27 January 1900 under s 101 of the Crown Lands Act 1884 (NSW) (the 1884 Act) as that reservation had effect as if it had been made under the 1989 Act (Sch 8(1)) and is not a reservation under which the area “is to be used” for public purposes within s 47B(1)(b)(ii) of the NTA.

The reservation from sale and lease question (ID Area 115) (Reasons [80]–[83])

2.    Having held that a reservation under s 87 of the 1989 Act is not a reservation within s 47B(1)(b)(ii) of the NTA (Reasons [84]––[119] ID Area 74), the primary Judge erred in holding that when the claimant application was made on 24 June 2013 ID Area 115 was covered by a reservation within s 47B(1)(b)(ii) by virtue of reservations made on 20 August 1913 under s 101 of the 1884 Act and s 39 of the Crown Lands Act 1889 (NSW) as the reservations had effect as if they had been made under the 1989 Act (Sch 8(1)) and are not reservations under which the area “is to be used” for public purposes within s 47B(1)(b)(ii) of the NTA.

Permissive occupancy 79/8 Lismore (ID Area 460) (Reasons [120]–[132])

3.    Having held that a reservation under s 87 of the 1989 Act is not a reservation within s 47B(1)(b)(ii) of the NTA (Reasons [84]––[119] ID Area 74), the primary Judge erred in holding that when the claimant application was made on 24 June 2013 ID Area 460 was covered by a permission within s 47B(1)(b)(ii) by virtue of a permission to occupy for grazing granted on 9 October 1979 under s 136K of the Crown Lands Consolidation Act 1913 (NSW) (the 1913 Act), continued by the 1989 Act (Sch 8(17)) and the Crown Lands (Continued Tenures) Act 1989 (NSW) (the CLCT Act) (s 5) subject to the provisions of those Acts, as the area was covered by a reservation under s 87 of the 1989 Act and the permissive occupancy (licence) is not a permission under which the area “is to be used” for a particular purpose within s 47B(1)(b)(ii) of the NTA.

Permissive occupancy 1960/21 Lismore (ID Area 624) (Reasons [133]–[137])

4.    Having held that a reservation under s 87 of the 1989 Act is not a reservation within s 47B(1)(b)(ii) of the NTA (Reasons [84]––[119] ID Area 74), the primary Judge erred in holding that when the claimant application was made on 24 June 2013 ID Area 624 was covered by a permission within s 47B(1)(b)(ii) by virtue of a permission to occupy for grazing granted on 30 November 1987 under s 136K of the 1913 Act, continued by the 1989 Act (Sch 8(17)) and the CLCT Act (s 5) subject to the provisions of those Acts, as the area was covered by a reservation under s 87 of the 1989 Act and the permissive occupancy (licence) is not a permission under which the area “is to be used” within s 478(1)(b)(ii) of the NTA.

(Emphasis in original)

4    As can be seen from their terms, all of these grounds of appeal relate to reservations made under s 87 of the Crown Lands Act 1989 (NSW) (the 1989 Act) and involve the construction of s 47B(1)(b)(ii) of the Native Title Act 1993 (Cth) (the NTA), in particular, the words of that subsection “is to be used for public purposes”.

FACTUAL BACKGROUND

5    The appellant is the authorised applicant of the Widjabul Wia-Bal People. On 24 June 2013, it filed a native title determination application under s 13 of the NTA claiming native title rights and interests over an area of land and waters located broadly to the east of Kyogle, Casino and Bagotville in the north of New South Wales. The four areas of land mentioned above fell within that claim area.

6    The external boundaries of the claim area were described in Attachment B to the application and then certain areas within that claim area were excluded by clause (B) of Schedule B as follows:

1.    The area covered by the application excludes any land and waters covered by past or present freehold title or by previous valid exclusive possession acts as defined by section 23B of the Native Title Act 1993 (Cth).

2.    The area covered by the application excludes any land and waters which are:

a)    a Scheduled interest;

b)    a freehold estate;

c)    a commercial lease that is neither an agricultural lease nor a pastoral lease;

d)    an exclusive agricultural lease or an exclusive pastoral lease;

e)    a residential lease;

f)    a community purpose lease;

g)    a lease dissected from a mining lease and referred to in s 23B(2)(c)(vii) of the Native Title Act (1993) [sic] (Cth); and

h)    any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

3.    Subject to paragraphs 5 and 6, the area covered by the application excludes any land or waters covered by the valid construction or establishment of any public work, where the construction or establishment of the public work commenced on or before 23 December 1996.

4.    Subject to paragraphs 5 and 6, exclusive possession is not claimed over areas which are subject to valid previous non-exclusive possession acts done by the Commonwealth, State or Territory.

5.    Subject to paragraph 7 below, where the act specified in paragraphs 2, 3 and 4 falls within the provisions of:

a)    s 23B(9) – Exclusion of acts benefiting Aboriginal Peoples or Torres Strait Islanders;

b)    s 23B(9A) – Establishment of a national park or state park;

c)    s 23B(9B) – Acts where legislation provides for non-extinguishment;

d)    s 23B(9C) – Exclusion of Crown to Crown grants; and

e)    s 23B(10) – Exclusion by regulation;

the area covered by the act is not excluded from the application.

6.    Where an act specified in paragraphs 2, 3 and 4 affects or affected land or waters referred to in:

a)    s 47 – Pastoral leases etc covered by the claimant application;

b)    s 47A – Reserves covered by [the] claimant application;

c)    s 47B – Vacant Crown land covered by [the] claimant application;

the area covered by the act is not excluded from the application.

7.    The area covered by the application excludes land or waters where the native title rights and interests claimed have been otherwise extinguished.

8.    The area covered by the application excludes the land and waters covered by the following native title determination applications:

-    Byron Bay Bundjalung People #3 native title determination application NSD6020/200l (Byron Bay Bundjalung People v New South Wales Minister for Land and Water Conservation);

-    Bandjalang People #2 native title determination application NSD6107/1998 (Bandjalang People #2 v Attorney General of New South Wales); and

-    The Githabul Peoples native title determination application NSD6019/1998 (The Githabul Peoples v New South Wales Minister for Land and Water Conservation).

7    The native title rights and interests the claim group claimed to hold in the claim area were described in Attachment E to the application in the following terms:

1.     Where exclusive native title can be recognised (such as areas where there has been no prior extinguishment of native title or where s.238 and/or ss.47, 47A and 47B apply), the Widjabul Wia-[B]al as defined in Schedule A of this application, claim the right to possession, occupation, use and enjoyment of the lands and waters of the application area to the exclusion of all others subject to the valid laws of the Commonwealth and the State of New South Wales.

2.    Where exclusive native title cannot be recognised, the Widjabul Wia-[B]al as defined in Schedule A of this application, claim the following non-exclusive rights and interests including the right to conduct activities necessary to give effect to them:

(a)    the right to access the application area;

(b)    the right to use and enjoy the application area;

(c)    the right to move about the application area;

(d)    the right to camp on the application area;

(e)    the right to erect shelters and other structures on the application area;

(f)    the right to live being to enter and remain on the application area;

(g)    the right to hold meetings on the application area;

(h)    the right to hunt on the application area;

(i)    the right to fish in the application area;

(j)    the right to have access to and use the natural water resources of the application area;

(k)    the right to gather and use the natural resources of the application area (including food, medicinal plants, timber, tubers, charcoal, wax, stone, ochre and resin as well as materials for fabricating tools, hunting implements, making artwork and musical instruments);

(l)    the right to manage natural resources of the application area;

(m)    the right to share and exchange resources derived from the land and waters within the application area;

(n)    the right to participate in cultural and spiritual activities on the application area;

(o)    the right to maintain and protect places of importance under traditional laws, customs and practices in the application area;

(p)    the right to conduct ceremonies and rituals on the application area;

(q)    the right to transmit traditional knowledge to members of the native title claim group including knowledge of particular sites on the application area;

(r)    the right to speak for and make non-exclusive decisions about the application area in accordance with traditional laws and customs;

(s)    the right to speak authoritatively about the application area among other Aboriginal People in accordance with traditional laws and customs; and

(t)    the right to control access to or use of the lands and waters within the application area by other Aboriginal People in accordance with traditional laws and customs.

3.    The native title rights and interests referred to in paragraph 2 do not confer possession, occupation, use or enjoyment of the lands and waters of the application area to the exclusion of all others.

4.    The native title rights and interests are subject to and exercisable in accordance with:

(a)    the laws of the State of New South Wales and the Commonwealth of Australia including the common law;

(b)    the rights (past or present) conferred upon persons pursuant to the laws of the Commonwealth and the laws of the State of New South Wales; and

(c)    the traditional laws and customs of the Widjabul Wia-[B]al for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

8    Before the primary judge, the parties agreed on the facts set out below in respect of each of the four areas of land. First, in respect of Area 572, the agreed facts recorded that:

…

1.2    …

(a)    the parcel referred to in these proceedings as ID Area 572 is recorded on the register under the Real Property Act 1900 (NSW) (the “Register”) as Lot 324 in Deposited Plan 755745 in the Parish of Tuckombil, County of Rous;

(b)    the State of New South Wales is, and was as at 24 June 2013, the registered proprietor of ID Area 572;

(c)    on 27 January 1900, by notice in the New South Wales Government Gazette (Issue No 76 (Supplement)), a copy of which appears at Annexure 1, the Governor of New South Wales declared under section 101 of the Crown Lands Act of 1884 (NSW) that Crown Lands described as Reserve No 30,518 shall be reserved from sale pending determination of the portion to set apart for public recreation (“the reserve for recreation”);

(d)    all of ID Area 572 is contained within the area of land identified under the heading “Eastern Division’’ and subheading “Land District of Lismore” and “No 30,518” in the instrument at Annexure 1;

(e)    on 24 June 2013, the applicant filed its native title determination application; and

(f)    as at 24 June 2013, nothing had been done to revoke or vary the instrument at Annexure I.

Other matters

1.3    …

(a)    as at 24 June 2013, ID Area 572 was “Crown land” within the meaning of section 3 of the Crown Lands Act 1989 (NSW);

(b)    the first respondent contends that the instrument at Annexure 1 partially extinguished native title;

(c)    the applicant does not contend that the instrument at Annexure l was invalid; and

(d)    the parties have not identified any interest, other than those referred to above, as having subsisted in relation to ID Area 572 as at 24 June 2013.

9    As well, with respect to Area 572, the primary judge recorded the following matters, based on the evidence before him:

55    The instrument described “Annexure 1” was a Gazette notice of 27 January 1900 in the following terms:

56    The Gazette notice reserved ID Area 572 from sale pending determination of the portion to be set apart for public recreation. The reservation was made under s 101 of the Crown Lands Act of 1884 (NSW) (the 1884 Act).

57    Section 101 appeared in Part V of the 1884 Act, which was entitled “Dedications – Reserves – Roads”. That section provided, relevantly:

The Governor may by notice in the Gazette declare what portions of Crown Lands shall be reserved and set apart as sites for cities towns or villages and may define the limits of the suburban lands to be attached thereto and to any existing city town or village and may in like manner declare what portions of Crown Lands shall be temporarily reserved from sale pending survey or determination by him of the portion to be set apart for any public purpose or for commonage or for population areas and all lands so declared shall be reserved accordingly until revoked or altered in like manner.

58    Section 104 of the 1884 Act provided, relevantly:

The Governor may by notice in the Gazette reserve or dedicate Crown Lands in such manner as may seem best for the public interest for any…public health or recreation convenience or enjoyment…or for any other public purposes. And upon any such notice being published in the Gazette such lands shall become and be reserved or dedicated accordingly and may at any time thereafter be granted for such purposes in fee simple…And subject to the provisions in the next following section all lands heretofore or hereafter permanently reserved for any of the purposes aforesaid shall be deemed to be set apart and dedicated accordingly and every conveyance alienation or disposition thereof except for the purpose for which such reservation shall have been made shall be absolutely void as well against Her Majesty as all persons whomsoever.

10    Next, in respect of Area 115, the agreed facts recorded that:

…

2.2    …

(a)    the parcel referred to in these proceedings as ID Area 115 is recorded on the Register as Lot 137 in Deposited Plan 728167 in the Parish of Clunes, County of Rous;

(b)    the State of New South Wales is, and was as at 24 June 2013, the registered proprietor of ID Area 115;

(c)    on 20 August 1913, by notice in the New South Wales Government Gazette (Issue No 132), a copy of which appears at Annexure 2, the Governor of New South Wales declared in relation to portion 103, Parish of Clunes, County of Rous, that:

(i)    under section 101 of the Crown Lands Act 1884 (NSW), the portion shall be reserved from sale pending determination of the portions to be set aside for the public purpose of public recreation (Reserve 49 182 [sic]); and

(ii)    under section 39 of the Crown Lands Act 1889 (NSW), the portion be reserved and exempted from lease generally (Reserve 49,183) (together, Reserves 49,182 and 49,183 are called “the reserve for public recreation”);

(d)    all of ID Area 115 is contained within the area of land identified under the heading “Eastern Division” and subheading “Land District of Lismore and Byron Shire” and “No. 49,182 from sale (49,183 from lease generally)” in the instrument at Annexure 2;

(e)    on 24 June 2013, the applicant filed its native title determination application; and

(f)    as at 24 June 2013, nothing had been done to revoke or vary the instrument at Annexure 2.

Other matters

2.3    …

(a)    as at 24 June 2013, ID Area 115 was “Crown land” within the meaning of section 3 of the Crown Lands Act 1889 (NSW);

(b)    the first respondent contends that the instrument at Annexure 2 partially extinguished native title;

(c)    the applicant does not contend that the instrument at Annexure 2 was invalid; and

(d)    the parties have not identified any interest, other than those referred to above, as having subsisted in relation to ID Area 115 as at 24 June 2013.

11    As well, with respect to Area 115, the primary judge recorded the following matters, based on the evidence before him:

81    At the date of the native title determination application, there were two reservations covering ID Area 115. The first, under s 101 of the 1884 Act, reserved the land, “from sale pending determination of the portions to be set aside for the public purpose of public recreation”. However, the effect of s 10 of the 1927 Amending Act was that the entirety of ID Area 115 became reserved, “for the purpose of public recreation”…

82    Under the second reservation, under s 39 the Crown Lands Act 1889 (the 1889 Act), ID Area 115 was, “reserved and exempted from lease generally”…

(Emphasis in original)

12     Thirdly, in respect of Area 460, the agreed facts recorded that:

…

4.2    …

(a)    the parcel referred to in these proceedings as ID Area 460 is recorded on the Register as Lot 7302 in Deposited Plan 1156949 in the Parish of South Gundurimba, County of Rous;

(b)    the State of New South Wales is, and was as at 24 June 2013, the registered proprietor of ID Area 460;

(c)    on 9 October 1979, under section 136K of the Crown Lands Consolidation Act 1913 (NSW), the Minister for Lands granted permission to occupy Crown lands including ID Area 460, described as permissive occupancy 79/8 Lismore (“the ID Area 460 permissive occupancy”), a copy of which appears at Annexure 7;

(d)    on 29 June 2007, by notification in the New South Wales Government Gazette, a copy of which appears at Annexure 6, the Minister for Lands reserved, under section 87 of the Crown Lands Act 1989 (NSW), the Crown lands described as all Crown Land in the Eastern and Central Divisions of the State that is not within a reserve or part of any holding within the Parish of South Gundurimba, County of Rous as Reserve 755736 for future public requirements (“the reserve for future public requirements of 29 June 2007”);

(e)    on 18 July 2008, by notification in the New South Wales Government Gazette, a copy of which appears at Annexure 8, under section 88 of the Crown Lands Act 1989 (NSW), the Minister for Lands added all Crown land held under licence or permissive occupancy under the Crown Lands Acts that is not already within a reserve, including ID Area 460, to Reserve 755736, being one of the reserves for the public purpose of future public requirements of 29 June 2007 (“the reserve for future public requirements of 18 July 2008”);

(f)    all of the area referred to in these proceedings as ID Area 460 is contained within the area of land identified in the ID Area 460 permissive occupancy at Annexure 7;

(g)    on 24 June 2013, the applicant filed its native title determination application, the external boundaries of which included ID Area 460; and

(h)    as at 24 June 2013, nothing had been done to revoke or vary the instruments at Annexures 7 and 8.

Other matters

4.3    …

(a)    as at 24 June 2013, ID Area 460 was “Crown land’’ within the meaning of section 3 of the Crown Lands Act 1989 (NSW);

(b)    the first respondent contends that:

(i)    on 28 April 1933, by notification in the New South Wales Government Gazette, under section 26A of the Pastures Protection Act 1912 (NSW), the Minister for Lands placed ID Area 460 under the control of Pastures Protection Board for the Pastures Protection District of Tweed-Lismore (“the Pastures Protection Board notification”); and

(ii)    the Pastures Protection Board notification partially extinguished native title in relation to ID Area 460;

(c)    the applicant does not contend that any of:

(i)    the Pastures Protection Board notification;

(ii)    the grant of the ID Area 460 permissive occupancy (being the instrument at Annexure 7);

(iii)    the creation of the reserve for future public requirements of 18 July 2008 (being the instrument at Annexure 8); or

(iv)    the addition of ID Area 460 to Reserve 755736 (being the instrument at Annexure 6);

was invalid; and

(d)     the parties have not identified any interest, other than those referred to above, as having subsisted in relation to ID Area 460 as at 24 June 2013.

13    As well, with respect to Area 460, the primary judge recorded the following matters, based on the evidence before him:

121    Annexure 7 is an instrument dated 9 October 1979 granting a “permissive occupancy” to John Stanley Smith in respect of ID Area 460 for the purpose of “grazing”. One of the conditions of the permissive occupancy was a requirement to, “not overstock the land occupied”. The permissive occupancy was given the number PO 79/8.

122    Reserve 755736 was created as part of the tranche of reservations made on 29 June 2007, which effectively converted Reserve 1011448 into thousands of smaller reserves. On 18 July 2008, pursuant to s 88(1) of the 1989 Act, the Minister added, “all Crown land held under Licence or Permissive Occupancy under the Crown Lands Act that is not already within a reserve” to Reserve 755736. Accordingly, ID Area 460, which was subject to PO 79/8, was added to Reserve 755736 for “future public requirements”. When the application for a determination of native title was made on 24 June 2013, ID Area 460 was covered by both Reserve 755736 and PO 79/8.

14    Finally, in respect of Area 624, the agreed facts recorded that:

…

5.2    …

(a)    the parcel referred to in these proceedings as ID Area 624 is recorded on the Register as Lot 282 in Deposited Plan 728633 in the Parish of Tunstall, County of Rous;

(b)    the State of New South Wales is, and was as at 24 June 2013, the registered proprietor of ID Area 624;

(c)    on or about 30 November 1987, under section 136K of the Crown Lands Consolidation Act 1913 (NSW), the Minister for Lands granted permission to occupy Crown lands including ID Area 624, described as permissive occupancy 1960/21 Lismore (“the ID Area 624 permissive occupancy”), a copy of which appears at Annexure 9;

(d)    on 29 June 2007, by notification in the New South Wales Government Gazette, a copy of which appears at Annexure 6, the Minister for Lands reserved, under section 87 of the Crown Lands Act 1989 (NSW), the Crown lands described as all Crown Land in the Eastern and Central Divisions of the State that is not within a reserve or part of any holding within the Parish of Tunstall, County of Rous as Reserve 755747 for future public requirements (“the reserve for future public requirements of 29 June 2007”);

(e)    on 18 July 2008, by notification in the New South Wales Government Gazette, a copy of which appears at Annexure 8, under section 88 of the Crown Lands Act 1989 (NSW), the Minister for Lands added all Crown land held under licence or permissive occupancy under the Crown Lands Acts that is not already within a reserve, including ID Area 624, to Reserve 755747, being one of the reserves for the public purpose of future public requirements of 29 June 2007 (“the reserve for future public requirements of 18 July 2008”);

(f)    all of the area referred to in these proceedings as ID Area 624 is contained within the area of land identified in the ID Area 624 permissive occupancy at Annexure 9;

(g)    on 24 June 2013, the applicant filed its native title determination application, the external boundaries of which included ID Area 624; and

(h)    as at 24 June 2013, nothing had been done to revoke or vary the instruments at Annexures 8 and 9.

Other matters

5.3    …

(a)    as at 24 June 2013, ID Area 624 was “Crown land” within the meaning of section 3 of the Crown Lands Act 1989 (NSW);

(b)    the first respondent contends that the ID Area 624 permissive occupancy partially extinguished native title in relation to ID Area 624.

(c)    the applicant does not contend that any of:

(i)    the grant of the ID Area 624 permissive occupancy (being the instrument at Annexure 9);

(ii)    the creation of the reserve for future public requirements of 18 July 2008 (being the instrument at Annexure 8); or

(iii)    the addition of ID Area 624 to Reserve 755747 (being the instrument in Annexure 6);

was invalid; and

(d)    the parties have not identified any interest, other than those referred to above, as having subsisted in ID Area 624 as at 24 June 2013.

15    As well, with respect to Area 624, the primary judge recorded the following matters, based on the evidence before him:

135    On about 30 November 1987, the permissive occupancy, described as 1960/21, was granted to Derek Skingle and Judith Gooden, under s 136K of the Crown Lands Consolidation Act. The purpose was stated to be “grazing”. The area of land involved was 1.943 hectares. The conditions were similar to those for ID Area 460.

16    None of the contentions recorded in the “Other matters” sections of the agreed facts above expressly identified the “prior interest” described in s 47B(2) of the NTA which resulted in the partial extinguishment of native title rights and interests that had allegedly occurred in respect of each of the areas. When this point was raised with counsel during the hearing of this appeal, the following additional facts were also agreed: “a prior interest was created by the reservations in respect of [each of Areas] 572 and 115”. Subsequent to the hearing, the parties also agreed the same fact with respect to each of Areas 460 and 624 (see further at [29] below).

THE PRIMARY JUDGMENT

17    The primary judge began his reasons for judgment by setting out (at [6]–[14]) the terms of s 47B of the NTA and outlining its structure and history by reference to the judgments of this Court in Banjima People v State of Western Australia (2015) 231 FCR 456; [2015] FCAFC 84 (Banjima) and Griffiths v Northern Territory of Australia (2006) 165 FCR 300; [2006] FCA 903. His Honour then noted that s 47B was a beneficial provision such that the exception in s 47B(1)(b) “should not be construed more widely than is necessary to give effect to [its] purpose” (see at [15]) by reference (at [14]–[17]) to another decision of this Court in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442; [2005] FCAFC 135 and the High Court judgment in Helicopter-Tjungarrayi v State of Western Australia (2019) 336 ALR 603; [2019] HCA 12 (Tjungarrayi HC).

18    Notwithstanding the observations of the Full Court in Attorney-General (Cth) v Helicopter-Tjungarrayi (2018) 260 FCR 247; [2018] FCAFC 35 (Tjungarrayi FC) (at [18]–[19]) that the requirements of s 47(1)(b) are best approached as a composite, because the parties had focused on the section’s constituent parts, his Honour then turned to consider the words or phrases comprising those parts, specifically “reservation, proclamation, dedication, condition, permission or authority” (at [20]–[23]); “public purposes” or “a particular purpose” (at [24]–[36]); “is to be used” (at [37]–[51]); and “area” (at [52]–[53]).

19    As regards the phrase “is to be used”, which, as noted above, is central to this appeal, his Honour concluded (at [50]–[51]):

50    In my opinion, there is no basis for construing “is to be used” in s 47B(1)(b)(ii) as “ is required to be used”. The provision refers, inter alia, to a “permission or authority” conferred by the Crown under which land in the area “is to be used” for public purposes or a particular purpose. A mere “permission or authority” would not require land to be used, so those words would be redundant if the applicant’s construction is correct. In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, it was held at [71] that, “a court construing a statutory provision must strive to give meaning to every word of the provision.” The implication of the word “required” is not congruent with the words “permission or authority”. Further, that submission is inconsistent with Alyawarr.

51    In Alyawarr, the Full Court held at [188] that the words “is to be used” in s 47B(1)(b)(ii) import the need to identify an intention that the subject land be used for public purposes or a particular purpose. The intention is the Crown’s intention. In many statutory contexts, the Crown’s intention will be indicated by the intention of the relevant Minister. The intention must be demonstrated on an objective basis, by reference to the relevant legislation and the reservation, etc. (including the nature and purpose of the use, the extent of the land subject to the reservation, etc. the extent of the claim area and the conditions or terms of the instrument). If a reservation, etc. requires land to be used for public purposes or a particular purpose, that provides a powerful indication of the Crown’s intention, but such a requirement is not essential. On the other hand, a mere permit or authority to use land will not, without more, demonstrate the necessary intention. In between these positions, the statutory language or the reservation, etc. may provide an indication that the Crown’s intention is that the land is to be used for a requisite purpose. Each case will turn upon its own facts and statutory context.

(Emphasis in original)

20    In the succeeding sections of his reasons for judgment, his Honour then considered in turn the separate question relating to each of the areas of land concerned. The following is a summary of those parts of his Honour’s reasons:

(a)    Area 572 (at [54]–[79])

(i)    that it was reserved for a public purpose (at [66]);

(ii)    that it was to be used for that purpose (at [72]);

(b)    Area 115 (at [80]–[83])

(i)    because the first of the two reservations relating to Area 115 was not materially different to the reservation concerning Area 572, his Honour reached the same conclusion with respect to it, namely that it was reserved for a public purpose (at [81]);

(ii)    while his Honour considered that the second reservation relating to Area 115 was not for a public purpose within the terms of s 47B(1)(b)(ii), because he had already reached the conclusion in (i) above, he decided any conclusion with respect to the second reservation was immaterial (at [82]–[83]);

(c)    Area 460 (at [120]–[132])

(i)    that the reservation covering it was not for a public purpose or a particular purpose under s 47B(1)(b)(ii) (at [123]);

(ii)    however, because Permissive Occupancy 79/8 was granted for the purpose of “grazing”, that purpose was a “particular purpose” within the terms of s 47B(1)(b)(ii) (at [126]);

(iii)    furthermore, it could be inferred that the land constituting Area 460 was land that was to be used for the particular purpose of grazing (at [131]);

(d)    Area 624 (at [133]–[137])

(i)    since the differences between Area 624 and Area 460 were not material, the Permissive Occupancy 1960/21 granted with respect to it was for the particular purpose of grazing under s 47B(1)(b)(ii) (at [135]);

(ii)    similarly, because the differences with Area 460 were not material, it could be inferred that it was intended to be used for the particular purpose of grazing (at [136]).

THE CONTENTIONS

21    At the hearing of this appeal, it was common ground that the intention to reserve an area for the purposes of s 47B(2) was to be ascertained as at the date the native title determination application was filed, namely 24 June 2013.

22    The appellant advanced six reasons why the primary judge was wrong to reject its contention that the words “is to be used” should be construed as “required”. First, it submitted that the reasoning of the primary judge was inconsistent with the text and syntax of s 47B(1)(b)(ii) where the phrase “is to be used” is in “the present indicative sense and denotes an obligation to use”. Accordingly, the appellant contended the words “is to” should be paraphrased as “shall”. Secondly, the appellant submitted that his Honour’s reasoning was inconsistent with the structure of s 47B(1)(b)(ii) because the additional words “under which … the area is to be used” qualify the preceding words such that the reference to a permission or authority cannot be read as importing a discretion to use, as distinct from an obligation to use. Thirdly, the appellant contended that his Honour’s reasoning was inconsistent with the decision in Banjima as set out at [43] of his reasons. Fourthly, the appellant contended that his Honour failed to have sufficient regard to the ruling in Tjungarrayi HC that the exclusions in s 47B(1)(b) should not be construed more widely than was necessary to give effect to their terms. Fifthly, the appellant contended that the result derogated from the purpose of s 47B as identified in Tjungarrayi HC, which, so it contended, was “to facilitate the recognition of native title under the NTA, notwithstanding historic extinguishment”. Sixthly, and finally, the appellant contended that the result was not supported by the relevant Crown land legislation in New South Wales which distinguished between a reservation and a dedication, the latter of which resulted in land being devoted to the stated purpose and no other.

23    For its part, the State contended that the primary judge was correct in concluding (at [42]–[51]) that there was no basis for construing the words “is to be used” in s 47B(1)(b)(ii) as meaning “is required to be used”. While the State was content to accept that, as a whole, the NTA may properly be described as beneficial legislation, it submitted that describing a provision as beneficial does not, itself, take matters very far. It submitted that the conditions set out in s 47B(1) were conditions that had to be satisfied before the beneficial terms of the section came into effect. It submitted that the exception in s 47B(1)(b)(ii) narrowed its application to relation to vacant Crown land. Accordingly, it submitted that construing that exception required a “practical balance between competing public interests”. Further, relying upon Tjungarrayi HC, it contended that s 47B(1)(b)(ii) had to be construed according to its terms with proper regard to its context. It submitted that the words “is to be used” ought not to be construed as a command, but “as part of the description of a legislative or executive act whose existence … triggers an exception to the section’s operation”. It submitted that the words “a reservation, proclamation, dedication, condition, permission or authority” covered the “whole spectrum of things that may be done under Crown lands legislation” throughout Australia. It was therefore directed to the exercise of executive power and its character and effect rather than the documents or instruments that evidenced the same. It submitted that the concluding words of s 47B(1)(b)(ii) qualified each of the types of executive acts referred to. Accordingly, it contended that the appellant’s construction of the phrase “is to be used” imposes requirements that could never be met by several of the types of executive acts referred to.

24    The State also contended that a reservation of Crown land in New South Wales does no more than prohibit the disposition of land vested in the Crown. It contended that the primary judge had properly understood this limited effect. In particular, it contended that the primary judge understood that such reservations did not involve the vesting of land in trustees. It submitted that, under the 1989 Act, the reservations of the four areas were to continue “for the same purpose and on the same terms” as previously. Consequently, it contended that, after 1989, the general power of sale did not apply to the reserves, but “[l]esser interests could be granted under s 34A, with appropriate regard to the public interest and the purpose for which the land was reserved”. However, it accepted that this power was conditional on the land being assessed under Part 3, s 35(1) of the Act. In this respect, the State referred to the decision in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim) (2012) 84 NSWLR 219; [2012] NSWCA 358 (the Goomallee Claim) where the New South Wales Court of Appeal interpreted these provisions of the 1989 Act as not authorising the grant of a licence over reserved land for a purpose unrelated to the purpose of its reservation. Nonetheless, the State contended that the appellant was wrong to contend that such reserved land cannot be used for some particular purpose until further steps are taken under Part 3 of the 1989 Act. However, it accepted that the land could not have been sold or leased for some other unrelated use without first being assessed in accordance with the provisions of that Act. Further, the State contended that the appellant had misunderstood the distinction the primary judge had drawn between the reservations of Areas 572 and 115 and the reserves for “future public requirements” that applied to Areas 74, 460 and 624. With respect to the latter reservations, it contended that the primary judge had correctly found that the power had been used to reserve large areas of the State in order to protect those areas from sale pending further decisions as to their appropriate use, if any. Accordingly, unlike the reservations for Areas 572 and 115, those reservations did not involve any decision as to the purpose for which the area concerned was to be used.

25    Finally, the State contended that the exploration permits under consideration in Banjima and Tjungarrayi FC could be distinguished from the present case because they “were so nebulous in their application to the claim areas as not to embody any intention that the land be used in a particular way”. Similarly, it contended that the judgment in Tjungarrayi HC could be distinguished because the issue in that matter was the meaning of the word “lease” in s 47B(1)(b)(i) rather than the construction of sub-para (ii).

26    In its reply submissions, in addition to challenging many of the State’s primary contentions, the appellant submitted that the references to the powers to reserve and resume land in s 47B(1)(b)(ii) and (iii) and (5)(b) should be read narrowly relying on Clunies-Ross v The Commonwealth of Australia (1984) 155 CLR 193 at 199–200. In connection with the construction of the 1989 Act, the appellant also submitted that the State’s reliance on the Goomallee Claim decision was misplaced for six reasons. First, it contended that case did not deal with the interrelationship between the conditions in s 47(1)(b)(ii) and the provisions of the 1989 Act. Secondly, it contended that the implied constraint in the 1989 Act was whether the exercise of the power concerned was inconsistent with the terms of the reservation. In this respect, it contended that the grant of a licence under the 1989 Act was not necessarily inconsistent with a reserve for “public recreation”, but the grant of a grazing licence with an obligation to enclose the land for private use was. Thirdly, it contended that the Goomallee Claim decision accepted the reservation under the 1989 Act did not preclude other consistent uses of the reserved land. Fourthly, it contended that that decision said nothing about the existence of other express powers outside the 1989 Act to deal with Crown land that included reserved land. Fifthly, it contended that the Court of Appeal’s construction of the 1989 Act was reversed retrospectively by the Crown Lands Amendment (Multiple Land Use) Act 2013 (NSW) with a new s 34AA applying to past actions. Sixthly and finally, it contended that the implied constraint in the Goomallee Claim decision was held, before its legislative reversal, to apply to a reservation under the 1989 Act for the public purpose of future public requirements.

27    Finally, it should be recorded that the New South Wales Aboriginal Land Council and the Jali Local Aboriginal Land Council, who are both respondent parties to the native title determination application proceeding, filed brief joint written submissions in this appeal. However, apart from adopting the submissions of the State in respect of the Goomallee Claim decision (see at [24] above), they did not seek to make any further submissions.

FURTHER CONTENTIONS ON THE APPROPRIATENESS OF THE SEPARATE QUESTION

28    As is already mentioned above, during the hearing of this appeal, a question arose as to whether the separate questions in this matter dealt with a real issue of controversy between the parties or were instead seeking advisory opinions from the Court. It was that exchange that led to the parties agreeing to the additional fact mentioned above (see at [16]). That issue continued to trouble the Court after judgment was reserved. Consequently, a letter was sent in the following terms to the parties seeking supplementary written submissions on this issue:

During the hearing on Monday, 17 February 2020, Justice Griffiths raised a question whether the Court was being asked to provide an advisory opinion in this matter.

Having since reviewed the decision in Bass v Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9, particularly at 355–358; [45]–[51], it seems to us, on a preliminary basis, that neither the agreed facts, nor the other matters mentioned by Justice Rangiah, nor the further matter agreed during the hearing concerning the “prior interest”, disclose a concrete and established factual situation which resolving the legal issue involved in the separate questions could finally determine. That includes, at least on a preliminary basis, the following factual issues:

(a)    What native title rights and interests claimed in the applicant’s application in relation to each of the four areas were extinguished?

(b)    What prior interest was created which brought about that extinguishment in respect of each of those areas?

(c)    Which member, or members, of the native title claim group occupy each of those areas?

Accordingly, we request the parties to provide written supplementary submissions (limited to 10 pages each) on this question by close of business on 6 March 2020.

29    As a part of their response, the parties submitted a “Joint Note on the Court’s letter dated 21 February 2020” (the Joint Note). In that document, they set out a number of additional agreed facts and other matters as follows:

1.    ID Area 572: The notification dated 27 January 1900 referred to at [1.2(c)]:

(a)    extinguished the claimed exclusive native title rights in the claimant application referred to at Attachment E par 1 of the application (AB Al) in relation to ID Area 572;

(b)    is the creation of a prior interest in relation to ID Area 572 for the purposes of s 47B of the NTA.

2.    ID Area 115: The notification dated 20 August 1913 referred to at [2.2(c)]:

(a)    extinguished the claimed exclusive native title rights in relation to ID Area 115;

(b)    is the creation of a prior interest in relation to ID Area 115 for the purposes of s 47B of the NTA.

3.    ID Area 74: The proclamation dated 16 September 1914 referred to at [3.2(c)]:

(a)    extinguished the claimed exclusive native title rights in relation to ID Area 74;

(b)    is the creation of a prior interest in relation to ID Area 74 for the purposes of s 47B of the NTA.

4.    ID Area 460: The notification dated 28 April 1933 referred to at [4.3(b)(i)]:

(a)    extinguished the claimed exclusive native title rights in relation to ID Area 460;

(b)    is the creation of a prior interest in relation to ID Area 460 for the purposes of s 47B of the NTA;

5.    ID Area 624: The permissive occupancy dated 30 November 1987 referred to at [5.2(c)]:

(a)    extinguished the claimed exclusive native title rights in relation to ID Area 624;

(b)    is the creation of a prior interest in relation to ID Area 624 for the purposes of s 47B of the NTA.

(Emphasis in original)

30    They added:

The parties reserve their respective positions as to whether any of the claimed non-exclusive native title rights in the claimant application referred to at Attachment E par 2 of the application were extinguished by any of the acts referred to in the agreed facts, that being a matter to be heard and determined as part of the extinguishment hearing under the trial programming orders made on 19 December 2010 at [3] …

In response to question (c) in the Court’s letter, the parties do not agree that when the claimant application was made one or more members of the claim group occupied the ID Areas, that being a matter upon which evidence is to be filed under the trial programming orders made on 19 December 2019 at [6(c)][.]

(Emphasis in original)

31    In its further submissions in support of the appropriateness of the separate question procedure, the appellant submitted that the agreed facts and annexures established the facts of the acts in issue relevant to the questions of construction posed by the parties under s 47B(1)(b)(ii), relying on AWB Ltd v Cole (No 2) (2006) 253 FCR 288; [2006] FCA 913 (AWB) at [31]–[35] per Young J and Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 (Blurton) at 449 per French J (as he then was). It submitted that the agreed facts and the Joint Note established that all of the reservations with respect to the five areas extinguished the “claimed exclusive native title rights”, having regard to the definition of “interests” in s 253 of the NTA. It contended that this reflected the “settled position” elaborated in State of Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 (Ward) at [219].

32    Additionally, in respect of Area 624, it contended that the permission to occupy for grazing purposes had the same extinguishing effect as the pastoral leases considered in Ward at [194] and the grazing licence considered by Olney J in Hayes v Northern Territory (1999) 97 FCR 32; [1999] FCA 1248 (Hayes) at [136]. It contended that, what it described as, “the unestablished fact” as to whether one or more members of the native title claim group occupied the five Areas for the purposes of s 47B(1)(c) was not a fact material to the questions that fall for determination and nor does its “absence” mean that the present questions are were not justiciable. On this aspect, it relied on the High Court judgment in Edwards v Santos Ltd (2011) 242 CLR 421; [2011] HCA 8 (Edwards v Santos), which it claimed was “not materially different” to the present case. It claimed that was so even though that matter involved a declaratory order and this matter involves a set of separate questions. It added that, depending on the outcome of this appeal, the parties may rely upon r 30.02 of the Federal Court Rules 2011 (Cth) (the Rules) to seek declaratory relief.

33    Further, it claimed that the parties have been engaged in mediation and have identified the issue related to the exception under s 47B(1)(b)(ii) as a material issue which, similar to Edwards v Santos, is “of real practical importance to the resolution” of this matter. It claimed that the Federal Court had, on numerous occasions in the past, made determinations of native title after outstanding issues of extinguishment or connection were determined in earlier proceedings. It pointed to the Tjungarrayi FC proceeding as an example, claiming that it began with a separate question about whether the application of s 47B was excluded in relation to parts of the claim area covered by a petroleum tenement. It also sought to rely upon the observation of the majority in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 (Bass) at [51] to contend that the determination of questions such as these was “plainly desirable in complex native title litigation”. Furthermore, it contended that the separate questions in this matter are not unlike the separate Question 1 in Bass which concerned whether the claim in that matter under the Trade Practices Act 1974 (Cth) against the State of New South Wales was maintainable.

34    In its further submissions on this issue, the State claimed that the further matters agreed by the parties in their Joint Note were sufficient for the Court to be satisfied that, in relation to each of the areas concerned, one or more acts had occurred which:

(a)    created a “prior interest” within the meaning of s 47B(2); and

(b)    effected an extinguishment at least of any exclusive native title rights which s 47B(2), if it applied, would require to be disregarded.

35    It therefore contended that the separate questions do not suffer from the problems identified in Bass because answers could be given to them with confidence that they will not be rendered otiose by the emergence of new or different facts at a final hearing. It contended that courts regularly determine questions of liability as separate questions even though that may result in issues of quantum falling away. Further, it contended that it was not necessary for a question to be one which would dispose of the entire proceeding and it claimed that it would be sufficient if resolution of the question was likely to save time and cost by narrowing the field of controversy between the parties.

36    Nonetheless, the State accepted that the construction of the exceptions provided for in s 47B(1)(b)(ii) may become hypothetical and may, on a “strict view”, invite advisory opinions from the Court if:

(a)    the appellant is unable to establish that one or more members of the claim group occupied the areas concerned at the relevant time so that s 47B(1)(c) is not met; or

(b)    the issue of extinguishment is not reached because the appellant does not establish that the members of the claim group are the holders of native title.

37    It pointed out that it had expressed concerns in case management hearings before Jagot J that the determination of the questions concerning the construction of s 47B(1)(b)(ii) could be premature for these reasons. However, it acknowledged that it did not oppose the questions being stated as separate questions and it had assisted in formulating them on the footing that their determination would “at least narrow the questions that the parties needed to resolve in mediation (and, should mediation fail, in the courtroom)”. It also pointed out that the Areas to which the separate questions relate were chosen by the parties as representative of a broader class of Areas, including approximately 172 similar areas within the boundaries of the claim area. Further, it pointed out that the determination of the present questions would assist the resolution of extinguishment issues in other native title matters in New South Wales where similar reservations or tenures exist.

38    It contended that there was clearly a “matter” before the Court because of the existence of the native title determination application seeking a determination of native title under s 225 of the NTA. It contended that “matter” required the determination of a range of issues, including “potentially, the application of s 47B to any area of land in relation to which extinguishing acts have occurred”. Since the facts which would make s 47B irrelevant in relation to the Areas to which the present questions relate have not been, and may never be, found or agreed, it contended that the issues as to whether s 47B is capable of applying to the Areas concerned are therefore live issues in the proceeding and it is not inappropriate for the Court to determine them as separate questions.

39    Finally, it contended that, if the Court were of the view that the present separate questions procedure was inappropriate and that the primary judge’s answers should therefore be set aside, it foreshadowed an application for an extension of time to file a cross-appeal with respect to Question 3 concerning Area 74 so that it may be dealt with in the same manner as the questions with respect to the four Areas the subject of the present appeal.

CONSIDERATION

40    The principles pertinent to the proper use of the separate question procedure under r 30.01 of the Rules were conveniently summarised by Young J in AWB at [29]–[39]. That judgment involved O 29 of the Federal Court Rules 1979 (Cth) as amended, but that order was in substantially the same terms as r 30.01. With citations and quotations omitted, the relevant parts of his Honour’s summary was as follows:

29    The starting point must be that, as a general rule, all issues of fact and law should be determined at the one time …

30    A party seeking the determination of separate questions must satisfy the Court that it is “just and convenient” for the order to be made …

31    It would not be appropriate to separate a question if it would not permit or involve a conclusive or final judicial decision that is based on concrete facts, either established or agreed, for the purpose of quelling a controversy between the parties …

32    The separate question procedure poses special problems where the preliminary question is one of mixed fact and law … In that situation, it is essential that there be precision both in formulating the question and specifying the facts upon which it is to be decided …

33    … all of the facts that are on any fairly arguable view relevant to the determination of the separate question must be ascertainable, either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined. Where the separate question involves the grant or refusal of declaratory relief, the Court must be placed in a position where it can consider all relevant matters before it exercises its discretion to grant or refuse the relief …

34    … it would be contrary to the judicial process and no part of the judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case … in order for a court exercising federal jurisdiction to utilise the separate questions procedure, either the parties must agree on the relevant facts or the court must determine the facts before deciding the question.

35    The cases indicate that great caution needs to be exercised in formulating a separate question for determination on the basis of assumed facts. The assumed facts may prove to be incomplete or insufficiently precise … The parties may also have different views concerning the effect or duration of the assumptions; for instance, they may consider that they can depart from the assumptions and re-agitate the facts in another part of the case …

36    … a matter is “ripe” for separate and preliminary determination where it is a central issue in contention between the parties, and its resolution will either obviate the necessity of litigation altogether or substantially narrow the field of controversy. This proposition assumes, of course, that the factual foundation for the determination of the issue has been resolved … in the ordinary course all issues in proceedings should be decided at the one time, but the separate decision of a question may be appropriate where, for example, the decision of a question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end … in particular circumstances, the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of the dispute is decided or where the decision will obviate unnecessary and expensive hearings of other questions.

37    On the other hand, an issue will not generally speaking be “ripe” for separate determination if it is simply one of two or more alternative ways in which an applicant frames its case, and its determination would leave other significant issues unresolved …

38    The courts have repeatedly warned of the dangers that attend the trial of separate or preliminary questions … the attraction of trials of separate questions are often more chimerical than real; savings in time and expense can prove illusory and the process can generate other problems such as interlocutory appeals and consequent delays … single issue trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question … the dangers of separate trials are well illustrated by the numerous cases in which the process has miscarried … the [separate question] procedure is one that should be adopted with caution as it can be fraught with difficulties … the ordering of separate trials must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of the order was intended to avoid …

39    … [the] factors that have been taken into account by the courts in making or refusing orders for the trial of a separate question … include the following:

(i)    whether the separate questions will contribute to the saving of time and cost by substantially narrowing the issues for trial or even lead to the disposal of the action;

(ii)    whether they will contribute to the settlement of the litigation;

(iii)    whether they will give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial;

(iv)    whether there will be any significant overlap between the evidence adduced on the hearing of the separate question and at trial; and

(v)    whether the questions will prolong rather than shorten the litigation.

41    On the need for a concrete and established factual foundation for a separate question proceeding, the High Court observed in Bass that (at [45]):

The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy …

42    Their Honours added (at [47] and [49]) a caution about courts avoiding answering hypothetical questions as follows:

47    Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions …

…

49    … Courts have traditionally declined to state — let alone answer — preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.

(Footnotes omitted)

43    And finally, their Honours made the following observation about the use of judicial power (at [56], referred to in AWB at [34]):

Judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the evidence led against them. It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case …

(Footnotes omitted)

44    With these principles in mind, we turn to consider the appropriateness of the separate question procedure adopted by the parties in this matter. It is convenient to begin by making some remarks about the content and structure of s 47B and its role in the NTA. We will then consider the claims made by the appellant in its native title determination application, the contents of the parties’ Joint Note and the principles bearing on the extinguishment of native title.

45    First, it is to be noted that the object of s 47B of the NTA is the historic extinguishment of native title on vacant Crown land (see Tjungarrayi HC at [2] and [100]). It operates where two “positive pre-conditions” are met (see Banjima at [94]). They are that the area concerned is the subject of a native title determination application (s 47B(1)(a)) and, when that application is made, one or more members of the native title claim group occupy that area (s 47B(1)(c)). In that event, s 47B(2) requires that any extinguishment of the native rights and interests in relation to the area is to be disregarded and s 47B(3) applies the non-extinguishment principle to the creation of any prior interest in relation to the area (see Tjungarrayi HC at [66]). However, there are three categories of exceptions or “negative pre-conditions” (see Banjima at [94]) where these provisions do not apply. They are prescribed by s 47B(1)(b) and include land that is: covered by a freehold estate or a lease (s 47B(1)(b)(i)); or covered by a reservation, proclamation, etc (s 47B(1)(b)(ii); or subject to a resumption process (s 47B(1)(b)(iii)). The separate questions in this matter concern the second category of these three negative pre-conditions or exceptions.

46    Next, it is important to note that s 47B itself (together with ss 47 and 47A) operates as an exception to certain “restrictions” imposed by s 61A(2) and 61A(3) of the NTA. Those “restrictions”, in turn, constrain the right to make a claimant application for the determination of native title under s 13(1)(a) of the NTA. The expression “claimant application” is defined in s 253 of the NTA. Stated briefly, it refers to an application that has been authorised by a native title claim group. The restrictions contained in s 61A(2) and 61A(3) prevent a claimant application being made that covers an area in relation to which an attributable “previous exclusive possession act” or a “previous non-exclusive possession act” was done, respectively.

47    Section 23B of the NTA defines the expression “previous exclusive possession act”. Relevantly, for present purposes, it consists of “the grant or vesting of any of the following” on or before 23 December 1996 (s 23B(2)(c)):

(i)    a Scheduled interest (see section 249C);

(ii)    a freehold estate;

(iii)    a commercial lease that is neither an agricultural lease nor a pastoral lease;

(iv)    an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);

(v)    a residential lease;

(vi)    a community purposes lease (see section 249A);

(vii)    what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to “1 January 1994” were instead a reference to “24 December 1996”;

(viii)    any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

48    Further, s 23F of the NTA defines the expression “previous non-exclusive possession act”. Again, relevantly for present purposes, it consists of the “grant of a non-exclusive agricultural lease (see section 247B) or a non-exclusive pastoral lease (see section 248B)” on or before 23 December 1996 (see s 23F(2)(c)).

49    The appellant’s claimant application in this matter reflected these restrictions, albeit in general and unparticularised terms. It did that in two ways: by exclusion and by exception. As [7(1)] above reveals, the latter was achieved by, first, claiming the exclusive native title that “can be recognised (such as areas where there has been no prior extinguishment of native title or where s.238 and/or ss.47, 47A and 47B apply)”. Then “non-exclusive rights and interests including the right to conduct activities necessary to give effect to them” were claimed where “exclusive native title cannot be recognised” (see at [7(2)] above).

50    The former exclusions were achieved by identifying the areas within the boundaries of the claim area that were not claimed (see at [6(1)] above). In summary, that included those areas “covered by past or present freehold title or by previous valid exclusive possession acts as defined by section 23B of the [NTA]”. It also included the areas described in a list which effectively replicated the provisions of s 23B(2)(c) above (see at [6(2)] above). And finally, it also excluded any “public works” commenced prior to 23 December 1996 (see at [6(3)] above) and any areas “subject to valid previous non-exclusive possession acts done by the Commonwealth, State or Territory” (see at [6(4)] above).

51    However, these exclusions were expressed to be subject to a number of exceptions (see at [6(5)] and [6(6)] above). Relevantly for present purposes, they included (at [6(6)] above):

Where an act specified in paragraphs 2, 3 and 4 affects or affected land or waters referred to in:

a)    s 47 – Pastoral leases etc covered by the claimant application;

b)    s 47A – Reserves covered by [the] claimant application;

c)    s 47B – Vacant Crown land covered by [the] claimant application;

the area covered by the act is not excluded from the application.

52    These exceptions correlate to an important provision in s 61A, that is s 61A(4). It provides the link between the restrictions in s 61A(2) and s 61A(3) and s 47B as follows:

Section not to apply in section 47, 47A or 47B cases

(4)    However, subsection (2) or (3) does not apply to an application if:

(a)    the only previous exclusive possession act or previous non‑exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made; and

(b)    the application states that section 47, 47A or 47B, as the case may be, applies to it.

53    It can be seen that there are two conditions to the operation of this exception. First, the word “only” in s 61A(4)(a) above confines the exception to a previous exclusive possession act, or a previous non-exclusive possession act, whose extinguishment of native title would be required to be disregarded under ss 47, 47A or 47B. Secondly, s 61A(4)(b) requires that the native title determination application in question must state that (in this case) s 47B “applies to it”. The word “it” in this subsection could apply to the “act” referred to in s 61A(4)(a), or to the application itself. Assuming it is the latter, paragraph 6(c) (see at [51] above) may have achieved that purpose with respect to the four Areas. However, that left the acts concerned with respect to those areas unparticularised.

54    At this point, it is convenient to return to the parties’ Joint Note (see at [29] above) and to record the following features of it. First, in response to (a) of the Court’s letter, the parties are now agreed that any exclusive possession native title rights in the four Areas the subject of this appeal (and, curiously, Area 74, which is not) have been extinguished. This replaces their previous positions where the State generally asserted that native title had been “partially extinguished” in each Area without particularising the native title concerned and the appellant had remained silent. Nonetheless, they have now identified, at least in general terms, the native title rights and interests that they assert were extinguished.

55    Secondly, and by comparison, the parties’ response to (b) of the Court’s letter is unsatisfactory. They have simply stated that a “prior interest” was created in each Area by the notification or proclamation concerned without identifying what that interest was and describing what rights it gave rise to that were inconsistent with the “claimed exclusive native title rights” such that they caused the asserted extinguishment. This is important because, as is mentioned above, it concerns the link between the restrictions in ss 61A(2) and (3) and the exception in s 61A(4) which is, in turn, linked with the disregarding provisions in s 47B.

56    Thirdly, and relatedly, the parties no longer appear to rely upon Permissive Occupancy 79/8 (see [12(4.2)(c)] above), or the notifications issued on 29 June 2007 and 18 July 2008 (see [12(4.2)(d)] and [12(4.2)(e)] above) in respect of Area 460, as extinguishing any native title. Instead, with that Area they now rely exclusively on the notification made on 28 April 1933 (see at [12(4.3)(b)(i)] above). Finally, with respect to Area 624, while they also no longer appear to rely upon the notifications issued on 29 June 2007 and 18 July 2008 (see at [14(5.2)(d)] and [14(5.2)(e)] above), they have confined the extinguishing act to the Permissive Occupancy 1960/21 dated 30 November 1987 (see at [14(5.2)(c)] above).

57    Fourthly, in respect of (c) of the Court’s letter, the parties have stated that they are in dispute about whether or not one or more members of the claim group occupied the Areas concerned in accordance with the “positive pre-condition” in s 47B(1)(c).

58    Fifthly, it is clear from the first of the two concluding paragraphs to the Joint Note that there is an ongoing and broad dispute between the parties in connection with extinguishment issues connected with the appellant’s native title determination application the extent of which may be gleaned from the trial programming orders attached to the Joint Note. Those orders (Order 8) anticipate that the “extinguishment hearing” is to be listed with an estimated hearing time of 20 days.

59    Sixthly, and finally, there is no indication in the Joint Note, or the agreed facts, or elsewhere, of any agreement about the existence of the native title rights and interests that the appellant claims to hold in any part of the claim area, or any of the four Areas concerned in this appeal, nor the content of those rights and interests. To the contrary, it is implicit in the contentions of the parties concerning the appropriateness of the separate question procedure that there is also an ongoing dispute about this quite fundamental issue (see, for example, [36(b)] above).

60    Next, it is convenient to turn to the extinguishment of native title which is the central focus of the disregarding provisions of s 47B(2). That extinguishment takes place where rights have been granted to third parties, or where the Executive asserts rights or powers, which are inconsistent with the continuing existence of the native title concerned (see Ward at [78], [215] and [468] and State of Western Australia v Brown (2014) 253 CLR 507; [2014] HCA 8 (Brown) at [33]). In this matter, the parties appear to claim that the reservations, notification, or Permissive Occupancy variously affecting the four Areas concerned constituted the latter, namely the assertion of rights by the New South Wales Executive in that land. That is to say, they claim in their Joint Note that those acts variously created a “prior interest” in respect of each Area that resulted in the extinguishment of the “claimed exclusive native title rights”. In this context, it is to be noted that s 226 of the NTA affects the meaning of the word “act” in references relating to native title. The appellant called in aid of these contentions what the plurality said in Ward (at [219]) as follows:

Nevertheless, by designating land as a reserve for a public purpose, even a purpose as broadly described as “public utility”, the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation.

61    This paragraph appears in a discussion in the plurality judgment in Ward, beginning at [209] and concluding at [223], about the extinguishing effect of reserves. The issue under consideration in those paragraphs was Western Australia’s submission that the “reservation of those parcels was more than an exception of the land in question from sale, it was the dedication of the land to the nominated purpose and the land could not, thereafter, be lawfully used except for the reserved purpose” (at [209]). That proposition was said, at [210], to involve two elements: “first, that reserved lands cannot lawfully be used except for the reserved purpose and, secondly, that creation of a reserve gave a right to the public, at least where, as was the case with [the reserve in that matter], the reserve is for public purposes”. In considering those two elements, their Honours emphasised that the critical factor was the rights created or asserted as a consequence of the reservation, not the use to which the land may be put, although the latter may provide some indication as to the former (Ward at [215]–[216]). Furthermore, they observed that identifying the rights that were created or exercised when a reserve was created or “dedicated” required consideration of “the whole of the relevant statutory framework” (Ward at [217] and to similar effect see at [151]).

62    It was in the process of considering that statutory framework in Western Australia at [218]–[220] that their Honours made the observations at [219] above. That is to say, those observations were directed to the Western Australian legislative framework. So much is apparent, in our view, from their Honours’ observations at [220] as follows:

The reason that the right to use the land may have survived reservation is the same reason that the grant of a pastoral lease extinguished the right to control access to the land, but not necessarily all the rights of native title holders to use it in accordance with the rights held under traditional laws or customs. The provisions of the Acts providing a penalty for “unlawful or unauthorised use or occupation” of lands (including “lands reserved for or dedicated to any public purpose”) did not, on their proper construction, prohibit use or occupation by native title holders. It is, therefore, not right to say, as a proposition of universal application, as Western Australia submitted, that reserved lands could not lawfully be used except for the reserved purpose. The facts that the 1905 amendments to the Land Act 1898 permitted leasing of reserves not immediately required for their purpose or that in 1960 the Land Act 1933 was amended to permit leasing or licensing of certain kinds of reserve for depasturing stock require no different conclusion. Whether a right in native title holders to use the land continued unextinguished depends upon other considerations, particularly what, if any, rights in others were created by the reservation or later asserted by the executive.

(Footnotes omitted)

63    For completeness, we note that their Honours’ conclusion with respect to the second element mentioned above (see at [61]) was set out at [221] as follows:

The designation of land as a reserve for certain purposes did not, without more, create any right in the public or any section of the public which, by reason of inconsistency and apart from the [Titles Validation Act 1995 (WA)], extinguished native title rights and interests.

64    Finally, at [222]–[223], their Honours expressed a qualification with respect to reserves created after 31 October 1975 when the Racial Discrimination Act 1975 (Cth) (the RDA) came into effect and considered the provisions of the NTA and the validating legislation in Western Australia bearing on that issue.

65    It follows from these parts of the plurality judgment in Ward that it is not valid to transpose the observations at [219] to a different statutory regime, namely that in New South Wales. Instead, it is necessary in this matter to look to the New South Wales legislation upon which the New South Wales Executive relied when it undertook the relevant act in respect of each Area. Unfortunately, the parties have not attempted this exercise in their agreed facts, or in their Joint Note. Instead, as already mentioned, they have claimed, without explanation, that each act involved the creation of a “prior interest”. No attempt has been made to identify what specific rights were asserted by the New South Wales Executive by those acts, having regard to the provisions of the apposite New South Wales legislation.

66    The latter is not a simple exercise. In the case of Areas 572 and 115, they were declared to be “reserved from sale pending determination of the portion to set apart for public recreation” under s 101 of the Crown Lands Act 1884 (NSW) (see at [8(1.2)(c)] and [10(2.2(c)(i)] above). Additionally, Area 115 was “reserved and exempted from lease generally” under s 39 of the Crown Lands Act 1889 (NSW) (see at [10(2.2)(c)(ii)] above). While it would be necessary to examine these two pieces of legislation to determine what rights were asserted by them, it is not immediately apparent on their face how those reservations, expressed in such general terms and having no immediate effect, could have extinguished any native title rights and interests in those Areas, exclusive or otherwise.

67    As already mentioned, in the case of Area 460, the parties have replaced their reliance on the reservation for “future public requirements” made in 2007 and 2008 with a reliance on the notification made on 28 April 1933 under s 26A of the Pastures Protection Act 1912 (NSW), placing the control of that Area in the Pastures Protection Board for the Pastures Protection District of Tweed-Lismore (see at [12(4.3)(b)(i)] above). While placing control over an area of land in a statutory agency may have more potential to affect exclusive native rights and interests in that area, it would still be necessary to carefully consider the legislation concerned to ascertain precisely what rights of control over that land that placement entailed (see the observations in Ward at [151]). At one extreme, it might have involved the general administrative control of pasture protection in the whole of the Tweed-Lismore District, including, incidentally, Area 460. At the other extreme, it might have involved specific restrictions on access to that Area which could have affected the exclusive possession native title rights and interests claimed by the appellant.

68    The Permissive Occupancy 1960/21 over Area 624 may have, at first blush, even more potential to affect exclusive native title rights in that Area. However, it raises some different considerations of its own. It was issued on or about 30 November 1987 under s 136K of the Crown Lands Consolidation Act 1913 (NSW) (see at [14(5.2)(c)] above). That being so, it was issued after the RDA came into effect on 31 October 1975. Accordingly, it would be necessary to consider the validity of that grant, having regard to the provisions of the NTA and the validating legislation passed by the New South Wales Legislature (see, for example, Ward at [222]–[223]). Furthermore, as the judgments in both Ward at [194] and Hayes at [136], mentioned by the appellant in its submissions, demonstrate, along with the terms of that permission, it would be necessary to give careful consideration to the terms of the legislation under which it was issued to ascertain what rights and interests were created by it. Then, it would be necessary to compare those rights and interests with the content of the native title rights and interests claimed by the appellant to determine what, if any, inconsistency exists between those two sets of rights and interests.

69    The former, namely the parties’ reliance on the expression “prior interest” in the asserted extinguishment of the claimed native title rights and interests, raises its own issues. That expression is unique to s 47B and it is not defined in that section or elsewhere in the NTA. As already mentioned, it concerns the historic extinguishment of native title on vacant Crown land. Given that context and given that the word “interest” is used in the composite expression “prior interest”, it is open to question, in our view, whether that word engages the definition of “interest” in s 253. That is to say, since, as explained above, the extinguishment of native title involves an inconsistency of rights, it may be that the word “interest” in the expression “prior interest” has a different meaning to that in s 253. This possibility was left open recently by Nettle J in Western Australia v Manado (2020) 94 ALJR 352; [2020] HCA 9 at [59] (but cf. Edelman J at [86]–[87]).

70    In any event, while the parties both mentioned the definition of “interest” in s 253 as having some relevance to this issue, neither explained how that was so. In its supplementary written submissions, the appellant mentioned (b) and (c) of that definition, without any further explanation, in support of a submission that each reservation was a “prior interest” that extinguished the claimed exclusive native title rights and interests. For its part, during oral submissions at the appeal hearing, the State pointed to (c) of that definition and contended that it included “a restriction on the use of land”. However, when challenged to explain that contention, its counsel accepted that “[a] bare reservation from sale with no more probably doesn’t restrict the use of land”. A short time later, he added that the reservation affected the “Minister’s powers of disposition under the Act”, but he did not further develop that argument.

71    To sum up on this extinguishment aspect, based on what is presently known about the reservations in respect of Areas 115 and 572, and subject to the qualification expressed above, it seems unlikely that they resulted in any extinguishment of native title, assuming some existed in those areas and was held by the appellant. While the same cannot be said with the same confidence about the notification in respect of Area 460, or the Permissive Occupancy 1960/21 over Area 624, as explained above, on the present state of the materials before the Court, the necessary factual foundation does not exist to allow the Court to have any confidence that any relevant extinguishment of native title has occurred in those two Areas, again assuming some existed and was held by the appellant.

72    In respect of these conclusions, it is important to add that we are not bound to accept the agreed facts and the assertions made by the parties in their Joint Note on the extinguishing effects of the various acts in this matter. That is so because, in those documents, the parties have essentially agreed upon a conclusion of law about those extinguishing effects where the factual foundation for that conclusion is left unexplained and undisclosed and where what is known about the facts suggests that their assertions are not correct, with respect to Areas 115 and 572, and inconclusive, at best, with respect to Areas 460 and 624. In other words, those documents contain conclusions of law and contentions and cannot be truly treated as facts at all (see Secretary, Department of Health and Ageing v Prime Nature Prize Pty Ltd (in liquidation) [2010] FCA 597 at [6] per Stone J).

73    This review of the pertinent provisions of the NTA, the changing position of the parties in their agreed facts and Joint Note and the principles relating to the extinguishment of native title and the appropriate use of the separate question procedure demonstrates why that procedure was inappropriate to be employed by the parties in this matter. First, if there was no relevant extinguishment of native title in any of the four Areas concerned, that means there is nothing to disregard under s 47B(2) of the NTA. In that circumstance, it is hypothetical to consider whether the exception to the operation of that section set out in s 47B(1)(b)(ii) applies. Secondly, even if there were a factual foundation for a conclusion that some extinguishment of native title had occurred such that the disregarding provisions of s 47B(2) were engaged, the dispute about the construction of the exception in s 47B(1)(b)(ii) constitutes such a minor and peripheral part of the broad and extensive dispute that exists between the parties in this matter that it is inappropriate to isolate it for determination as a separate question. In this respect, it is to be noted that there is a fundamental dispute about whether the appellant holds native title rights and interests in the claim area. There is also a dispute about whether, and if so to what extent, any native title rights and interests that existed in the claim area have been extinguished. Finally, there is even a dispute about one of the other pre-conditions in s 47B(1), namely whether any members of the native title claim group occupied any of the four Areas when the native title determination application was filed.

74    Given these conclusions, it is unsurprising that none of the cases upon which the parties relied for support, justifies their use of this separate question procedure in this matter. That includes the decisions in the Tjungarrayi proceedings, Bass, Edwards v Santos and National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543 (NAB) and Blurton.

75    In the Tjungarrayi proceedings, the two separate questions concerning the construction of s 47B of the NTA arose in the course of negotiations for a consent determination of native title. By the time the matter came before the Full Court, and thereafter before the High Court, that consent determination had been made (see Tjungarrayi v Western Australia (No 3) [2017] FCA 938). Accordingly, the issue to which the separate questions related was the only matter upon which the parties remained in dispute.

76    The High Court rejected, as inappropriate, the separate question procedure being adopted in Bass because there were no agreed facts and no findings of fact to provide the necessary foundation for the separate questions in that matter (see Bass at [43] and the excerpts set out above). For the reasons given above, the position in this matter is therefore essentially the same as in Bass.

77    Edwards v Santos was a matter in the original jurisdiction of the High Court. It did not involve a separate question procedure, but rather an application for a declaratory judgment which a single judge of this Court had dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth). Despite the appellant suggesting that the parties in this matter might seek declarations at some future stage, they have not done so to date. In those circumstances, we do not consider that the appellant can draw support from anything said in that judgment.

78    The NAB decision involved, what the Chief Justice described as, a “construction summons” (see at [5]) concerning the proper construction of certain clauses in insurance policies issued by an insurer and its reinsurers. As in Edwards v Santos, it involved a claim for declaratory relief rather than a separate question procedure. While the Chief Justice did consider the appropriateness of the declaratory relief sought and, in that context, considered the question of hypothetical judgments discussed in Bass (see at [107]–[109]), we do not consider anything said in that judgment provides any assistance on the present question relating to the appropriateness of the separate question procedure in this matter.

79    Finally, Blurton involved a narrow question of law concerning the construction of s 109 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). Because of that circumstance, and because it was not necessary to adduce any evidence in order to determine that issue, French J considered it was appropriate to be dealt with as a separate question. We do not consider any analogy can be drawn between that situation and the situation prevailing in this matter, as outlined above.

80    In concluding, it is important to add these observations. Nothing in these reasons should be taken to deny the utility of the separate question procedure in native title litigation. In Bass (at [51]) the High Court said: “It cannot be doubted that in many cases the formulation of specific questions to be tried separately from and in advance of other issues will assist in the more efficient resolution of the matters in issue.” This is commonly the case in native title litigation. Native title claims usually cover enormous areas of land and the analysis of land tenure records to determine whether native title has been extinguished by prior grants, or other acts, is time-consuming and expensive. As a consequence, the questions whether native title exists in a large claim area and, if so, the nature and content of the rights and interests concerned, are often determined separately from, and in advance of, any issues of extinguishment. A recent example of this approach is Ashwin on behalf of the Wutha People v State of Western Australia (No 4) (2019) 369 ALR 1; [2019] FCA 308. While the same approach is also used to determine questions of extinguishment, for the reasons given above, that usually happens after the existence of the native title rights and interests claimed has been determined and the details of the rights and interests involved have been assayed. The High Court made this point repeatedly in Ward (see at [94], [308], [382] and [468(4)]). Recent examples of this approach being adopted include Brown, where separate questions concerning extinguishment followed a consent determination in which the native title rights and interests concerned had already been defined (see at [20]). As explained above (at [75]), the Tjungarrayi proceedings had a similar procedural history.

DISPOSITION

81    For these reasons, we consider the separate question procedure was inappropriate to be employed by the parties in this matter. It follows that this appeal must be dismissed. In addition, we consider the answers given by the primary judge should be set aside.

82    We will hear from the parties as to whether these orders should include the separate question his Honour answered in the appellant’s favour with respect to Area 74 (see at [39] above).

Associate:    

Dated:    17 June 2020

SCHEDULE OF PARTIES