Federal Court of Australia
District Council of Streaky Bay v Wilson [2021] FCAFC 181
ORDERS
DISTRICT COUNCIL OF STREAKY BAY Appellant | ||
AND: | CAROLINE WILSON (and others named in the Schedule) First Respondent | |
DATE OF ORDER: | 18 October 2021 |
THE COURT ORDERS THAT:
1. Leave is granted to amend the application for leave to appeal in terms of the proposed amended application for leave at annexure CD-03 to the affidavit of Ceilia Divakaran sworn on 28 June 2021.
2. The interlocutory application filed on 28 June 2021 for leave to adduce further evidence in support of the amended application for leave to appeal is, to the extent necessary, granted.
3. Leave to appeal in the terms of the draft notice of appeal at annexure CD-03 to the affidavit of Ceilia Divakaran sworn on 28 June 2021 is granted.
4. To the extent that the interlocutory application filed on 28 June 2021 seeks leave to adduce fresh evidence on the appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) and r 36.57 of the Federal Court Rules 2011 (Cth), that application is refused.
5. The interlocutory application filed on 6 September 2021 to further amend the draft notice of appeal dated 28 June 2021 in terms of annexure CD-05 to the affidavit of Ceilia Divakaran sworn on 6 September 2021 is refused.
6. The appeal is dismissed.
7. The appellant is to pay the costs of the first-to-seventh respondents and the eighth respondent of and incidental to the application referred to in Order 5 as agreed or, if not agreed, to be determined by a Registrar.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
Introduction and overview
1 In 1997, the Wirangu native title applicant (Wirangu respondent) lodged an application on behalf of the Wirangu people for a determination of native title under the Native Title Act 1993 (Cth) (NTA). The respondents included the State of South Australia (State), the District Council of Streaky Bay (Council), and, at a later stage, the Streaky Bay and Districts Golf Club Inc (Club).
2 The Streaky Bay golf course (golf course) falls within the claim area and is situated on an elongated area of land of about 31 hectares (land) which runs through the centre of the town of Streaky Bay in South Australia, roughly parallel with the coast. A significant proportion of the land is Crown land which is shown on early maps of Streaky Bay dating from 1877 to 1885. Golf has been played on various parts of the land since about 1929.
3 There is no dispute that the members of the claim group, the Wirangu respondent, are the holders of native title in the land subject to the resolution of tenure disputes (Reasons of the primary judge at [9]). This assumption underlies the draft native title determination proposed to be made by consent in accordance with s 87A of the NTA (proposed CD), which was circulated by the State on 28 February 2020 to the native title applicant, the Council and the Club.
4 On 26 November 2019, the Court ordered the Council and the Club to identify those parts of the proposed CD to which they would not consent, giving rise to the present dispute.
5 The Council identified two bases for its contention that native title had been extinguished with respect to the whole of the golf course, namely:
(1) the construction of public works allegedly in the nature of major earthworks on the land on or before 31 December 1993 which was either valid if construction pre-dated 1975 or validated by s 34 of the Native Title (South Australia) Act 1994 (SA) (NTA (SA)) as a category A past act; or, in the alternative,
(2) a lease (the Lease) encompassing the land which was “granted or intended to be granted” by the Council to the Club between 1 January 1994 and 23 December 1996 which was valid as an intermediate period act under s 32A of the NTA (SA).
6 In each case, the act in question is said to constitute a previous exclusive possession act which extinguished all native title in the land either by virtue of, or as confirmed by, s 36G of Part 6 of the NTA (SA) (which is enacted consistently with s 23E of the NTA).
7 In this regard, s 31(2) of the NTA (SA) provides that a word or expression in the NTA (SA) has the same meaning in Part 6 (comprising ss 31-38) as in the NTA, unless a contrary intention appears. In turn, an act is a previous exclusive possession act as defined by s 23B(2) of the NTA if it is valid (including because of the validating provisions in Division 2 or 2A of Part 2 of the NTA) and it consists of the construction or establishment of any public work prior to 23 December 1996 (s 23B(7), NTA). Section 23B(2) of the NTA also defines “previous exclusive possession act”, relevantly, as follows:
(2) An act is a previous exclusive possession act if:
(a) it is valid (including because of Division 2 or 2A of Pt 2); and
(b) it took place before 23 December 1996; and
(c) it consists of the granting or vesting of any of the following:
…
(vi) a community purpose lease (see section 249A)
…
(viii) any lease (other than a mining lease) that confers a right of exclusive possession over particular land waters.
8 The two bases on which extinguishment in whole was said to have occurred were the subject of determination as a separate question by the primary judge which was formulated in the following terms:
Whether the applicant’s claimed native title in the land referred to at [3] of the affidavit of Kerin Dare Rain affirmed on 15 April 2020, or alternatively in the portions of that land delineated by the blue boundaries on the map contained in annexure KDR2 (at page 107) (in either case, ‘the land’), has been wholly extinguished by either:
a. the construction of public works in the nature of major earthworks on the land on or before 31 December 1993, [the Earthworks question] or:
b. a community purposes lease, or alternatively a lease conferring exclusive possession, in respect of the land granted or intended to be granted by the District Council of Streaky Bay to the Streaky Bay Golf Club Inc, after 1 January 1994 and before 23 December 1996 [the Lease question].
(For convenience and consistently with her Honour, we refer to questions (a) and (b) of the separate question as the Earthworks and the Lease questions respectively in our reasons.)
9 At [11]-[12] of her Honour’s Reasons, the primary judge answered both questions in the negative, holding that she was not satisfied that the Wirangu respondent’s native title in the land had been wholly extinguished by either of the alleged acts. As in Peterson v Western Australia [2017] FCA 1056 at [51], the orders answering the separate question in the negative are not “final” because the native title determination application proceedings are continuing and the separate question has resolved only one issue, albeit that the remainder may ultimately be resolved by agreement to the proposed CD. As the decision on the separate question is interlocutory in character, leave to appeal is required pursuant to s 24(1A) of the Federal Court of Australia Act 1975 (Cth) (FCA Act); see also eg Bodney v Bennell [2008] FCAFC 63; 167 FCR 84 at [6] and [209] (the Court); and Roberts on behalf of the Widjabul Wia-Bal People v Attorney-General of New South Wales [2020] FCAFC 103 at [3] (the Court).
10 By an amended interlocutory application filed on 29 June 2021, the Council seeks leave to amend its application for leave to appeal filed on 18 January 2021 and leave to adduce fresh evidence in support of its amended application for leave to appeal and, if leave is granted, the appeal.
11 If successful in obtaining leave to appeal, the Council appeals from the negative determination made by the primary judge on the following grounds:
Earthworks question
1. The Judge erred at [71] of the reasons for judgment published as Wilson v State of South Australia (No 4) [2020] FCA 1805 in finding that scrape 16 is approximately 15 square metres in area. The Judge should have found that scrape 16 is approximately the same area as the footprint of many of the houses around the perimeter of the course (i.e. more than 100 square metres).
2. The Judge erred at [104], [109]-[111] and [114] in interpreting the definition of ‘major earthworks to exclude:
a. ‘the erection of fixtures or features upon or above the land’s surface’; and
b. the filling of land.
3. The Judge erred at [104] and elsewhere in interpreting the word ‘land’ within the definition of ‘major earthworks’ to mean only subsurface or soil.
4. The Judge erred at [105]-[106] in finding that the works occurring prior to 1994 to create and alter the fairways were not ‘major earthworks’.
5. The Judge erred at [109] in finding that the works occurring prior to 1994 to create 13 and remove 3 scrapes and to create and remove the various mounds shown in the aerial photographs in evidence, were not ‘major earthworks’.
6. Alternatively, the Judge erred at [109] in finding that the works occurring prior to 1994 to create 13 and remove 3 scrapes, were not major earthworks.
7. The Judge erred at [111] in failing to find that the works occurring prior to 1994 to: (i) to create 13 and remove 3 scrapes; (ii) create and remove the various mounds shown in the aerial photographs in evidence; and (iii) to create and remove the various tee-off points, were not in aggregate ‘major earthworks’.
8. The Judge erred at [115] in failing to find that the works occurring prior to 1994 to: (i) create 13 and remove 3 scrapes; (ii) create and remove the various mounds shown in the aerial photographs in evidence; (iii) create and remove the various tee-off points; and (iv) create and alter the various fairways, were not in aggregate ‘major earthworks’.
9. The Judge erred in failing to find that earthworks done between 1975 and 1994 involving in the order of 750 cubic metres of earth, together with (or without) the construction of an approximately 1,600 sq m gravel driveway and car park, done for the purpose of improving the golf course, was not ‘major earthworks’.
10. The Judge erred in failing to find that the physical conversion of the land in its natural state at the time of colonisation to a golf course as at 1 January 1994 was not a ‘major disturbance’ to the land and so ‘major earthworks’ (and so a ‘public work’).
11. In respect of Grounds 3-8 above, in each case the Judge further erred in not finding that s 251D had the effect that the whole of the golf course (alternatively, the relevant areas containing relevant feature[s] comprising a major earthwork and its associated tee-off, fairway and hole) was land on which those public works were situated (alternatively, established) because that area was adjacent land and the use of that area was incidental to the operation of each thing which comprised a major earthwork or which was considered in aggregate part of a major earthwork (i.e. the playing of golf).
12. The Judge erred at [112] and [113] in her Honour’s choice of comparator or identification of context. The proper comparison was the size and scale of the golf course compared with its townscape surrounds; alternatively, the size and scale of the fairways, scrapes, tee-offs, and mounds compared with the townscape surrounds; in the further alternative the size and scale of the fairways, scrapes, tee-offs, and mounds compared with the cadastral parcel in which they were situated.
13. Having found at [102] that the infilling of the Sceale Bay Road involved a ‘major disturbance to the land’ (and so, presumably, ‘major earthworks’ and so a ‘public work’) the Judge erred in failing to hold that s 251D had the effect that the whole of the golf course (alternatively, the area containing the two fairways which had crossed the said road) was land on which that public work was situated (alternatively, established) because that area was adjacent land and the use of that area was incidental to the operation of the infilled road (i.e. the playing of golf).
14. Having found at [101] that the club rooms were a public work and that the associated driveway and carpark involved a ‘major disturbance to the land’ (and so, presumably, ‘major earthworks’ and so a ‘public work’) the Judge erred at [101]-[102] in failing to hold that s 251D had the effect that the whole of the golf course (alternatively, the whole cadastral parcel containing the club rooms) was land on which that public work was situated (alternatively established) because that area was adjacent land and the use of that area was incidental to the operation club rooms and car park (i.e. the playing of golf).
15. The Judge erred at [113] in not finding that tee-off 2 (described at [74]) and the Crows Nest scrape (described at [70]) were not ‘major earthworks’.
16. The Judge further erred in not finding that s 251D had the effect that the whole of the golf course (alternatively, the area containing tee-off 2 and associated fairway and hole, and the area containing the Crows Nest scrape and associated fairway and tee-off respectively) was land on which those public works were situated (alternatively, established) because that area was adjacent land and the use of that area was incidental to the operation of the tee-off and/or the scrape (i.e. the playing of golf).
Lease question
17. The Judge erred in finding at [172] that the Council’s letter of 14 January 1994 to the Club did not attach a lease, alternatively an offer of a lease with sufficiently certain terms to give rise to a lease in equity upon the Club accepting the said offer.
18. The Judge erred at [173] in failing to find that the Club by letter dated 11 February 1994 communicated to the Council its acceptance of the terms of that lease, alternatively the terms of a lease proposed by the Council in its offer.
19. The Judge erred in finding (e.g. at [197], [199]) that the Club did not communicate its acceptance of the terms of any lease prior to 23 December 1996.
20. The Judge should have found that the Club:
a. accepted the lease (alternatively, a proposal to lease) attached to the Council’s 14 January 1994 letter by resolution at its meeting of 9 February 1994; and
b. communicated its acceptance of the said lease to the Council prior to 23 December 1996; or
c. in the alternative to (b) gave effect to the said lease (alternatively the proposal to lease) by complying with its terms.
21. The Judge erred at [200] in finding that there was not a specifically enforceable agreement for a lease, or a lease enforceable in equity prior to 23 December 1996.
22. The Judge should have found that:
a. prior to 23 December 1996, the Council granted a lease to the Club:
i. for the period 1 July 1994 to 30 June 2004;
ii. for the area depicted in the map annexed to the document entitled Memorandum of Lease dated 11 April 1997 (leased area);
iii. which was executed by the Club on 11 April 1997; and
iv. which was executed by the Council on 18 April 1997, and
b. the said lease was enforceable in equity, at least by the Club, prior to 23 December 1996;
c. the said lease was a ‘lease’ as defined by the Native Title Act 1993 (Cth) (NTA); and
d. the said lease was at all times a community purposes lease within the meaning of NTA s 249A; and
e. the said lease therefore extinguished native title within the leased area.
12 By further amended draft notice of appeal provided to the Court on the Sunday afternoon prior to the hearing, the Council seeks to raise yet a further ground of appeal being:
Pre-existing right-based act issue
23. In the alternative to Ground 22, the judge erred in fact and law in failing to find that:
a. the Council by letter provided a lease in executable form to the Club in September 1994 with an invitation to execute it;
b. the provision of that lease was an offer made in good faith to grant that lease, evidenced by the said letter which is dated 14 September 1994;
c. the Club in good faith accepted that lease by executing it on 11 April 1997;
d. the acceptance of the lease gave effect to the Council’s offer;
e. acceptance of the lease conferred a right of exclusive possession upon the Club in relation to the subject land (or so much of it as is in dispute);
f. the acceptance of the lease was a pre-existing right-based act within the meaning of s 24IB(b) (which applies to the acceptance by virtue of Sch 5 cl 3 to the Native Title Amendment Act 1998);
g. by reason of s 24ID(1), the acceptance of the lease (a) was valid, and (b) extinguished any native title in relation to the subject land (or at least so much of it as is in dispute).
13 It was not in issue that proposed ground 23 is new, having not been raised at trial.
14 Upon being served with this further proposed ground of appeal the day before the hearing, the State sought to be heard on the substantive application, it having previously filed a submitting notice. The Court was informed in the luncheon adjournment that the Commonwealth did not wish to be heard.
15 Given the eleventh-hour nature of the further proposed ground of appeal, the parties were afforded the opportunity to make written submissions on the additional ground, and on whether leave should be granted to entertain it, in order to avoid delaying the substantive application.
16 For the reasons set out below, the application to further amend the amended application for leave to appeal to raise ground 23 should be refused. Leave should be granted, in so far as it is required, to rely upon the further evidence in support of the application for leave to appeal but the application for leave to adduce further evidence on the appeal should be refused.
17 As the separate questions effectively determined a substantive right and the proposed grounds of appeal, when considered at a reasonably impressionistic level, were not plainly lacking any merit, it is appropriate for leave to appeal in terms of the notice of appeal dated 15 January 2021 to be granted. The appeal, however, should be dismissed.
Background
18 There is no dispute about the background facts.
19 Aerial images of Streaky Bay dated 2 March 1967 show the configuration of the golf course in 1967, which includes some portions of the land over which the State and the Wirangu respondent have agreed that native title has been extinguished. The remaining disputed parcels of land are shown enclosed within blue boundaries on the aerial photograph appearing at page 107 within annexure KDR2 to the affidavit of Kerin Dare Rain affirmed on 15 April 2020 (AB Pt C, 488) and is Annexure A to these appeal reasons.
20 Aerial photographs taken in 1967 show the existence of a nine-hole golf course encompassing both the undisputed parcels and the disputed parcels. The land has, at all times since 1967, been accessible to members of the public. Over time, the golf course has been reconfigured on several occasions including by relocating or reconfiguring holes, tee-off points, scrapes, mounds, bunkers and fairways and to establish a new fairway. Between 1975 and the early 1980s, the Sceale Bay Road, which passed through one of the fairways, was dug up using a grader or bulldozer and in-filled with top soil and grass was seeded. In the 1980s, the existing driveway to the club rooms was removed and a new driveway and large all-weather carpark was created. The entrance, club rooms and carpark, and a significant area surrounding those features, are located on an undisputed parcel (Reasons at [52], [55], [65], [81], [82]).
21 On 22 April 1975, the Club became an incorporated body under the Associations Incorporations Act 1956-1965 (SA) (Reasons at [50]). As at this date, the Club occupied the land comprising the golf course as a bare licencee, revokable at the will of the Council (Reasons at [119]).
22 From 1975, the management of the land was the responsibility of the Management Committee of the Council (a controlling body for the purposes of s 666C of the Local Government Act 1934 (SA) as then in force). The Management Committee included persons who were members of the Club (Reasons at [164]).
23 Under the controlling body model, the Council was liable for the acts and omissions of the Management Committee including in respect of the occupation and management of the land. This model existed until the repeal of s 666C in 1988 (Reasons at [164]).
24 The impetus for moving from a relationship of bare licencee to lessee was to reduce the Council’s exposure to liability for any personal injury that might arise on or in relation to land under its responsibility (Reasons at [166]).
25 Section 242 of the NTA defines a ‘lease’ to include:
(a) a lease enforceable in equity; or
(b) a contract that contains a statement to the effect that it is a lease; or
(c) anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease.
26 A ‘community purposes lease’ is defined in s 249A of the NTA:
A community purposes lease is a lease that:
(a) permits the lessee to use the land or waters covered by the lease solely or primarily for community, religious, educational, charitable or sporting purposes; or
(b) contains a statement to the effect that it is solely or primarily a community purpose lease or that it is granted solely or primarily for community, religious, educational, charitable or sporting purposes.
27 It was common ground before the primary judge that the grant of a community purposes lease between 1 January 1994 and 23 December 1996 (if it occurred) would, by reason of s 232A(2) be a valid ‘intermediate period act’ and therefore an act that would extinguish native title, provided that the lease did not contain a reservation for the benefit of Aboriginal people (Reasons at [134]).
The earthworks question
28 There are 16 grounds of appeal in relation to the earthworks question.
Relevant legislative provisions for the earthworks question
29 The Council’s primary submission at trial was that the works establishing the golf course before 31 October 1975 (that is, before the enactment of the Racial Discrimination Act 1975 (Cth)) validly extinguished native title at common law (Reasons at [26]). If so, their extinguishing effect at the time of construction or establishment was confirmed by s 36F of the NTA (SA). Alternatively, those works constructed or established after that date and before 1 January 1994 were said to be validated past acts attributable to the State under s 32 of the NTA (SA) which, as Category A past acts and previous exclusive possession acts, extinguished native title by operation of s 34 and s 36G of the NTA (SA) respectively (Reasons at [27]-[28]).
30 As the primary judge explained at [20] of her reasons, the Council advanced these alternative bases for the extinguishment of native title in respect of the whole of the golf course referable to earthworks. Nonetheless, each depended on the proposition that there had been a “public work”, as defined in the NTA and applied by the NTA (SA), which extinguished native title prior to 31 December 1993 (being the date put in issue by the Separate Question). So much was not in issue.
31 It is common ground that conduct which falls within the definition of “public work” in the NTA extinguishes native title: see, relevantly, s 23B(7) (previous exclusive possession acts), s 229(4) (category A past acts), and s 24JB(2) (future acts).
32 The phrase “public work” is defined in s 253 to mean (and not simply include):
(a) any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:
(i) a building, or other structure (including a memorial), that is a fixture; or
(ii) a road, railway or bridge; or
(iia) where the expression is used in or for the purposes of Division 2 or 2A of Part 2—a stock‑route; or
(iii) a well, or bore, for obtaining water; or
(iv) any major earthworks; or
(b) a building that is constructed with the authority of the Crown, other than on a lease.
33 By the use of the word “means”, and the purpose and context of the provisions, it appeared to be common ground that this definition is exhaustive (a proposition with which we agree).
34 The phrase “major earthworks” is defined in s 253 as follows:
major earthworks means earthworks (other than in the course of mining) whose construction causes major disturbance to the land, or to the bed or subsoil under waters.
35 We understand it is (correctly) common ground that this definition is also exhaustive.
251D Land or waters on which a public work is constructed, established or situated
In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.
Summary of the primary judge’s reasons on the earthworks question
37 At [11], the primary judge expressed her conclusions on the earthworks contentions:
I am not satisfied that the applicant’s native title in the land was wholly extinguished by the construction of public works in the nature of major earthworks on the land on or before 31 December 1993.
38 At [26]-[28], the primary judge set out, in a way which is not impugned on the appeal, the various aspects of the Council’s contentions:
The Council’s principal submission was that the works for the establishment of the golf course were acts attributable to the State that were done prior to 31 October 1975, and that their extinguishing effect on native title was valid.
To the extent that the works occurred on or before 23 December 1996 (and hence before the date specified in the question before the Court), the works were said to be both valid and a “previous exclusive possession act” that completely extinguished native title from the date that the construction of the works began: NT Act, s 23B(7); State NT Act, s 36G.
Works occurring after 31 October 1975 and before 1 January 1994 were said to be validated past acts attributable to the State: NT Act, s 228; State NT Act, s 32. Validated past acts that consist of public works extinguish native title: NT Act, s 229(4); State NT Act s 34.
39 At [42], contrary to the Wirangu respondent’s submissions at trial, the primary judge noted that while most of the parcels which constituted the golf course were parcels where it was not disputed that native title had been extinguished, that extinguishment did not render those parcels irrelevant to the question before the Court. Her Honour gave two reasons: first, the parties’ various contentions “necessitate consideration to be given to the whole of the land on which the golf course is situated”. Second,
it is conceivable that works may be taken to have been situated on a disputed parcel by the operation of s 251D of the NT Act, even if the activities causing “major disturbance to the land” occurred on adjacent land falling within an undisputed parcel.
40 The development of the golf course is summarised in general at [20] of the appeal reasons, by reference to the primary judge’s findings. At [56]-[58], the primary judge made the following findings, again not impugned on the appeal, about the development of the golf course over time:
In 1967, as now, the vast majority of the golf course was comprised of the grassed areas that form the fairways (expanses of land cleared of vegetation) together with vegetated surrounds. In the aerial photographs, the area occupied by the club rooms is very small relative to the size of the golf course as a whole.
The Sceale Bay Road (and an area surrounding area it) as well as the club rooms, car park (and large areas surrounding them) are situated within the undisputed parcels. In other words they are areas in respect of which the applicant agrees native title was extinguished.
An aerial photograph taken in 1998 shows changes to some features of the golf course. Based on the evidence as a whole, I am satisfied that the photograph fairly represents the extent of the construction and establishment of the golf course as at 31 December 1993.
41 At [59]-[63], the primary judge then set out the evidence before the Court about what works were undertaken at which times, and the two key deponents of affidavits on behalf of the Council. These gentlemen, as her Honour points out, were not only key Council members, but key members of the Streaky Bay Golf Club and its committees.
The evidence does not establish to the requisite standard what (if any) works were carried out on the land in the period between 1967 and 30 October 1975. The evidence of works occurring between 1975 and 1994 is more specific. Two witnesses have deposed to events occurring in that period from their living memory. Whilst the beginning and end dates for the activities they describe are not in all cases specific, that lack of precision does not bear on the outcome, for reasons that will soon become apparent.
David Lane was the Chief Executive Officer (formerly titled District Clerk) of the Council from November 1985 until July 2003. He first began working for the Council in 1977. Mr Lane has also had a long association with the Club, serving for many years in the joint role of Secretary and Treasurer. He has played golf on the course since 1978 and was made a life member of the Club in 2003.
John Rumbelow was the Chief Executive Officer of the Council from 2003 to 2008. Between 1985 and 2003 he was the Deputy Chief Executive Officer (formerly Deputy District Clerk) under Mr Lane. Mr Rumbelow has played golf on the course since 1972. He, too, has been an office bearer of the Club and was made a life member in 2001.
On the basis of the evidence given by Mr Lane and Mr Rumbelow, I am satisfied that between 1975 and 1994 there were changes to the configuration of the course having the effect of relocating or reconfiguring some of its features such as holes, tee-off points, scrapes and fairways. The changes altered the configuration of the game, in which certain tee-off points, scrapes and fairways do double duty. Only one new fairway was established and other fairways changed shape. A new hole 3 was established and the remaining holes and fairways were renumbered.
Mr Lane’s evidence is brief. He does not remember specific details of any particular works conducted in that period although he does recall that the activities “involved major earthworks, and required permission to rip up and remove vegetation from some areas”. Whilst I accept that significant vegetation clearance (and also revegetation) occurred as the game configuration on the course changed, whether the works overall should be described as “major earthworks” within the meaning of the NT Act is for the Court to decide in accordance with the statutory definition. I give little weight to Mr Lane’s characterisation and make my own evaluation based on the underlying facts.
42 Between [65] and [82], the primary judge moves to a description of each of the public works said to have extinguished native title. In summary, these are the modification of Sceale Bay Road from a gravel road to becoming part of the golf course between 1975 and the early 1980s; the construction and removal of “mounds and bunkers”; the formation and removal of “scrapes” up until 1994; the formation of tee-off points, the formation and modification of fairways, and the reconfiguration of the entrance and car park for the golf course. In these passages her Honour made factual findings about the nature and extent of the works involved in each of these features of the golf course over the relevant time period. Some of these findings are impugned on the appeal and we return to them below where appropriate.
43 At this point, it should be clarified that the “scrapes” which her Honour describes are a form of (un-grassed) putting greens. At [67]-[69] her Honour describes them thus:
A scrape is a putting surface. It is formed by introducing and compacting imported base material on the earth’s surface to form a raised mound with a flat top, over which a fine layer of material is laid. The scrapes were initially constructed of silica sand and later from slag sourced from a lead smelter. More recently, the scrapes have been formed with creek sand. The top layer is now constituted of irrigated greens, although that improvement did not occur until after 1994.
I am satisfied that in 1994 there were 10 scrapes in play, whereas previously there had been 13.
Of the 10 scrapes in existence in 1994, most of them were situated on the disputed parcels.
44 The primary judge then turned to an issue about who carried out the various works. This matter is not an issue on the appeal and it suffices to note that at [89] the primary judge concluded that all works were carried out “on behalf of” the Council, for the purposes of the definition in s 253.
45 From [91] the primary judge turned to findings about what her Honour described as the Council’s “primary argument”; namely that the evidence disclosed there had been “major disturbance” to the land.
The primary argument advanced by the Council is that all of the works for the construction of the golf course are to be considered as a whole and that the works involved a major disturbance to the whole of the land in question. On that analysis, it was submitted, “major earthworks” are situated in fact on the whole of the land comprising the golf course without resort to s 251D of the NT Act. The alternative argument is that some elements of the works constituted major earthworks and that those works must be taken to be situated on the whole of the golf course by the deeming operation of s 251D.
46 In order to answer that question, the Court set out the existing authority on the meaning of “major disturbance”: [96]-[100]. Her Honour noted, contrary to some of the grounds that are sought to be put on the appeal, that while it was accepted that the Sceale Bay Road and the club house were public works because they are a road and a building (at [101]):
However, the Council did not suggest that the remainder of the 31 hectares of land on which the golf course is located should be considered as land upon which the road and club rooms must be taken to be situated because of the operation of s 251D of the NT Act. If I have misunderstood the Council’s position in that respect I would conclude that s 251D does not have that operation on the facts. It has not been submitted that the whole of the golf course was incidental to or necessary for the construction and use of the road or the club rooms, nor does the evidence establish any such proposition.
47 The primary judge’s interpretation and application of the definition of “major earthworks” is central to several proposed grounds of appeal. At [103]-[104] her Honour described her reasoning process:
It remains to determine whether the works for the establishment of the golf course caused a major disturbance to the land when considered as an integrated whole. In the analysis that follows I will focus first upon discrete features of the course (as that was the approach taken in the evidence and submissions), before analysing them together.
An important feature of the “major earthworks” definition is its focus on disturbance to the land itself, rather than upon the erection of fixtures or features upon or above the land’s surface per se. The disturbance must be “to the land”, and it must be “major”.
48 At [109] her Honour found:
In my view, it may reasonably be inferred that the works for the creation of the features of the golf course (and the later changes to those features) were subjectively intended to be indefinite at the time that they were undertaken. However, the fact that a significant number of features of the golf course were removed, relocated or altered from time to time is informative of the objective nature of the works and the degree to which they have impacted the land. The removal of mounds and scrapes is illustrative. Qualitatively speaking, the construction of scrapes and mounds involved the importation of fill for the purpose of raising the level of some parts of the ground to varying degrees. The evidence does not demonstrate that the construction of the mounds and scrapes involved disturbance of the land surface before fill (in the nature of imported slag or creek sand) was mounded upon it. Whilst the construction of those features no doubt involved the use of heavy machinery and the importation of fill, I am not satisfied that those activities constituted major earthworks when considered in the context of the golf course as a whole.
As Mansfield J said in Margarula, by reference to the Explanatory Memoranda, the “major earthworks” definition is intended to cover large scale earthworks such as damns and weirs which permanently (or at least indefinitely) disturb the land. The evidence shows that the mounds are not immovable from the earth’s surface and that they have in fact been removed or rebuilt in accordance with the Club’s desires to change the configuration of the game from time to time. As has been said, neither their construction nor their removal involved major disturbance to the land in the requisite sense.
In the result, I am not satisfied that the construction of any one particular feature of the golf course referred to in the evidence and occurring after 31 October 1975 and before 1 January 1994 constitutes a major earthwork when considered separately. Accordingly, it is unnecessary to determine whether s 251D of the NT Act would operate to deem land to be included in the place where each of those asserted public works is situated. Nor do I consider those features described in the affidavits to constitute a major earthwork when considered together in the context of the golf course as an integrated whole.
50 Based on these considerations, the primary judge answered the earthworks question “no” (at [118]).
Summary of the Council’s submissions on the earthworks question
51 In its submissions, except for the first ground, the Council grouped some of the 16 grounds of appeal together, and the Wirangu respondent responded similarly. It is convenient to summarise the submissions in that grouped way.
52 As to ground 1, the Council contended that the aerial images annexed to the affidavit of John Graham Rumbelow affirmed 18 May 2020 and filed in the proceeding below show that scrape 16 was clearly larger than 15 sq m, as her Honour found it to be at [70]-[71]. The Council contended:
The true size of the scrape (indeed all except 1/10 and 6/15) was much larger. This misapprehension of scale infected the Judge’s reasoning because her Honour thought scrape 16 to be “typical of most of the scrapes” other than the ‘Crows Nest’.
53 The Council grouped grounds 2, 3, 10 and 12 together. These grounds all relate to the interpretation and application of the “major earthworks” definition, and whether the primary judge erred by finding that major earthworks had not occurred in the disputed parcels.
54 The Council contended that the primary judge’s understanding of the concept of “major earthworks” as requiring “large scale earthworks such as damns and weirs which permanently (or at least indefinitely) disturb the land” (Reasons at [114]) was incorrect. That understanding is “contrary to the ordinary meaning of ‘earthworks’”, which the Council submitted includes the banking of earth or soil, not merely its excavation. The primary judge is said to have erred in her approach by focussing on the concept of disturbance to the surface or “wounding” of the land (being her Honour’s term).
55 In grounds 4-9, and 15, the Council submitted that the primary judge further erred in her selection of comparator in asking whether major earthworks had occurred. Instead, the appropriate comparison exercise was contended to be the following:
(i) accept that the mounds, scrapes and other filling of the land was itself ‘earthworks’; (ii) to compare the land pre-earthworks with the land post-earthworks; (iii) to undertake that comparison in the context of the township of Streaky Bay and its parklands; and thus determine whether there had been major disturbance to the land.
56 The comparison ought to have been between the golf course as at 1 January 1994 and the state of the land prior to 1929, or at sovereignty. The earthworks over that time did cause major disturbance to the land, and should be considered major earthworks. This “comparison” argument was also raised in support of grounds 10 and 12.
57 In addition:
(a) as to ground 4, the Council submitted that the creation of fairways constituted major earthworks, since they involved heavy machinery such as graders, front-end loaders, and combines. Large swathes of land were cleared of trees and given over to fairways;
(b) as to the works identified at grounds 5-8, being to create 13 and remove 3 scrapes, to create and remove “the various mounds shown in the aerial photographs in evidence”, various tee-off mounds, and various fairways, the Council submitted the primary judge erroneously concentrated on whether the works had disturbed the surface of the land, or possibly the sub-surface by means of compaction, instead of undertaking a “before and after” comparison of the landform, the “before” including times before the golf course existed, as well as at sovereignty. In oral submissions the Council contended that at sovereignty, it could be inferred from the aerial photographs showing retained vegetation areas that the entire area now covered by the golf course was covered in vegetation;
(c) as to ground 15, the tee-off number 2 and the scrape called the “Crows Nest” are both large, obvious alterations to the land that are indefinite in character. The latter was shown in a 1967 aerial photograph to have a “footprint” the size of a house. Each should have been found to be a major earthwork as they were conceptually no different to a farm dam (which the Council contended would constitute “major earthworks”); and
(d) as to ground 9, it was artificial to consider the “disputed” parcels of land separately to the “undisputed” parcels of land. The comparison exercised ought to have been a comparison of the whole of the works to create the golf course, and the state of the land before that time. The Council also made a general submission that the works to create the golf course over time were not genuinely considered cumulatively, as they should have been.
58 Grounds 11, 13, 14 and 16 are each grounds where it is contended that the primary judge erred by not applying s 251D of the NTA (as picked up and applied by the NTA (SA) as we explain at [128] below). The Council contended that given the primary judge’s findings that there were public works in the vicinity, the whole of the golf course should have been found to be land on which public works have been undertaken. The Council submitted that the primary judge accepted that Sceale Bay Road and the club rooms were each public works, and the construction of the car park was found by the primary judge to have involved a “major disturbance to the land” (at [102]). The Council equates the latter to a finding that the car park was a public work.
59 The Council contended that because the construction of Sceale Bay Road, and the operation of the club rooms and car park would have no utility without the golf course, by operation of s 251D the whole golf course is therefore land on which public works have been undertaken, because the balance of the golf course was land ‘necessary’ (or at least incidental to) the operation of the reintegrated land as a golf course.
60 The Council submitted that if the Full Court found error in the approach of the primary judge in any respect in relation to the earthworks questions, it was in as good a position as the primary judge and should decide the matters for itself.
Resolution
61 The Council’s earthworks grounds of appeal in some instances did no more than assert error without any corresponding contention of what the precise error was, or what the correct finding should have been. There was sometimes little further development in written or oral submissions and therefore the ground of appeal remained at the level of assertion. That is insufficient for the Council to discharge its burden of establishing error. Nevertheless, we will attempt to deal with each ground as it is expressed in the further amended notice of appeal, and to the extent each was developed in submissions. It is first necessary to deal with the correct approach to the definition of “major earthworks” in s 253, and also the correct approach to s 251D, as revealed by the authorities.
The correct approach to s 253 and the definition of “major earthworks”
62 The central thesis of the grounds of appeal concerning the earthworks is that the primary judge misunderstood the statutory concept of “major disturbance”, or misapplied it to the evidence.
63 Before turning to the authorities, it is necessary to note two features of the text of the relevant provisions. First, the expression chosen by the Parliament in the exhaustive definition of public works is “major earthworks”. It is not “all earthworks”, or “earthworks” without a qualifying adjective. It is not “major or minor earthworks”. The adjective “major” has been chosen and must be given effect: Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 141, applied in Wilkie v Commonwealth [2017] HCA 40; 263 CLR 487 at [146].
64 Next, the context of s 253 is that “any major earthworks” is one of a list of other activities which are prescribed to be public works. These include buildings, “other structures” that are fixtures; a road, railway or bridge and in some circumstances a stock-route; well, or bore. This context is emphasised in some of the authorities discussed below.
65 Of the definition of “major earthworks” the following textual matters should be noted. The definition focusses on “construction”. It is the construction of the earthworks which must, relevantly, cause a “major disturbance” to the land. As with the principal term, the use of the adjective “major” must be given effect. The same adjective is used in the principal term as in the definition, and this emphasises the legislative choice by Parliament to differentiate between the scale and impact of some works from others.
66 At a general level it might be supposed that, in the context of a legislative scheme designed to protect native title, in selecting and defining the activities which will extinguish native title by force of the operation of express provisions in the NTA, Parliament intended to select activities the carrying out of which were inconsistent with the continuation of native title rights in that land or waters. However, the legislative scheme has other objectives, and with the amendments following the decision in Wik Peoples v State of Queensland [1996] HCA 40; 187 CLR 1 in particular, one objective was the bringing of greater certainty about the effect of previous activities on the continuation of native title to land and waters. Thus, the activities which fall within provisions such as s 253 may, or may not, have extinguished native title at common law, but Parliament has made a legislative choice for the sake of certainty about which activities have that effect, and which do not. As two members of the Full Court in Anderson v Wilson [2000] FCA 394; 97 FCR 453 pointed out (at [27], per Black CJ and Sackville J):
There is no occasion in this case to consider the precise relationship between the rules embodied in the NTA governing “confirmation of past extinguishment of native title” and the general law principles of extinguishment of native title. It is enough to note that, despite the terminology employed in Pt 2, Div 2B of the NTA, the effect of Div 2B is not necessarily simply to confirm instances of extinguishment of native title that have already taken place under the general law. For example, it is possible that some of the leases, or classes of leases, specified in Sch 1 to the NTA (all of which, by virtue of s 23B(2), constitute “previous exclusive possession acts”) would be found, on general law principles, not to have completely extinguished native title. If that is so, the inclusion of these leases in Sch 1 simply reflects the fact that Parliament, in the interests of certainty, has chosen to interpret the general law differently from the courts. (Compare the effect of the recital to the preamble to the NTA which was said in Wik to have read too much into the judgments in Mabo (No 2): Wik at 125, per Toohey J.)
67 That said, the legislative choice having been made, each provision must be carefully construed and applied so as not to alter the balance reflected in the legislative choice between certainty and the protection of native title rights and interests. That is why, as always, the particular text matters.
68 Finally, some assistance on the intended meaning of the “major earthworks” aspect of the public works definition is provided in the Explanatory Memorandum (Part B) to the Native Title Bill 1993 (Cth) at [103]:
The definition of this term is intended to cover major or large scale works such as dams and weirs whose construction permanently and significantly disturbs or changes the land, or the bed or subsoil under waters. A work must be constructed to come within the definition. The term is referred to in the definition of ‘public works’.
(Emphasis added.)
69 The key authorities are Rubibi Community v State of Western Australia (No 7) [2006] FCA 459, Banjima People v Western Australia (No 2) [2013] FCA 868; 305 ALR 1 and Margarula v Northern Territory [2016] FCA 1018; 257 FCR 226. These were the three authorities considered by the primary judge and the parties did not submit her Honour had overlooked any critical authorities.
70 All three authorities make two propositions abundantly clear: the question is one of characterisation on the evidence, and the evidence and facts are critical.
71 In Rubibi, Merkel J looked at the earthworks definition in the context of a number of activities on the claimants’ land which were submitted to have extinguished native title. One of the guiding approaches his Honour took in making the factual findings he did was to ask “whether there was permanent disturbance and change to the land such that it was appropriate to characterise” an activity as a major earthwork: see for example [131].
72 An example of this was Merkel J’s reasoning about an uncompleted sports oval which was one of the works in dispute (at [132]):
McMahon Oval is area 135 (R41551). This reserve includes an uncompleted sports oval which covers approximately 40% of the reserve. The oval has never been used as an oval. There was uncontested evidence that, in the course of creating the oval, the Shire carried out earthworks and installed drainage ditches and paths. There was also evidence that the whole of the reserve was traversed and disturbed by heavy earthmoving equipment during the creation of the oval and drainage ditches. A water storage tank was installed in the northern corner of the reserve. I undertook a site visit to McMahon Oval. I am satisfied that creation of the oval was a major earthwork the construction of which involved usage of the whole of the reserve. It is therefore not necessary to consider whether the drain on the reserve was also a major earthwork, although it probably was not such a work.
73 It should also be noted that Merkel J undertook a view or inspection of all the works in dispute. That did not occur before the primary judge.
74 In Banjima at [1465], Barker J noted an element of circularity in the definition of “major earthworks”, and expressed the view that the adjective “major” in the phrase “major disturbance” (and we infer, also in the statutory term itself) means “something prominent or significant in size, amount or degree”. His Honour also referred to various dictionary definitions of the adjective “major”. At [1467], his Honour referred to considerations of proportionality and context, comparing the construction of a gravel pit somewhere like Kings Park, Perth, with the same construction in “a vast area of remote country near a gravel road”. As has been explained above, the adjective must be given work to do, and that is the point Barker J also makes at [1468]:
While, obviously a gravel pit of the type described in Ex 68 by Mr Armstrong no doubt involves disturbance to the land, I do not consider it constitutes a “major” disturbance of the land.
75 We respectfully agree with his Honour’s approach.
76 Margarula appears to be the latest relevant authority. Relevantly in that case, Mansfield J was considering a dispute over two previous activities, in terms of whether they constituted “major earthworks” for the definitions of “public work”. One was a go-kart track and pedestrian underpass; the other the Magela Creek sewage pipeline.
77 As to the go-kart track, his Honour relied on specific affidavit evidence about the construction of the track, including that it had been “surfaced with bitumen to a high standard with additional kerb edge protection in certain areas”, and found at [348]
the process of “levelling the area, forming contours, and provision for stormwater run off to perimeter drains” for a 250 x 200 m track can be and should be characterised as “major disturbance to the land”.
78 At [348], Mansfield J made the same point that has been made earlier in these reasons, and was made by Barker J in Banjima:
The word “major” cannot be said to qualify the word “disturbance” with any degree of precision. However, the qualification of “disturbance” by the word “major” must mean that not just any disturbance will be sufficient. If any disturbance at all would be sufficient to satisfy the definition, then the word “major” would be otiose. In addition, the word “major” must require rather something more akin to “significant”, and sensibly attracting that description.
79 Having considered the extrinsic material, to which we have referred above, Mansfield J concluded at [349] that
in the overall context it is also sensible generally to require a disturbance which has permanently and significantly disturbed or changed the land.
80 After referring to Rubibi, Mansfield J noted at [352] that there was “obviously an element of judgment required” in making findings about whether construction or activities were major earthworks, and had resulted in major disturbance to the land or waters concerned. His Honour concluded:
The go-cart track is sealed and contoured, with perimeter drainage works, and as installed has an adjacent surfaced car parking area. It occupies a significant space. It has, clearly, elements or features which indicate that it is intended to exist indefinitely.
81 As a contrasting example, Mansfield J found the Magela Creek pipeline was not a major earthwork. His Honour’s reasoning at [356] is with respect instructive, and illustrates that size in itself – in terms of the area of land covered – may not necessarily be indicative of major disturbance:
While the trench dug was two kilometres long, and required about a five metre clearing width, it is only one metre deep. It has been covered. Apart from the removal of trees, I do not think that this pipeline falls within the definition of a major earthwork. The disturbance to the land whilst permanent in the sense that the pipeline lies within it, is not substantial. The digging of the trench did not cause a permanent disturbance to the land. The excavation was substantial but its residual effects are small. Again, it is a matter of judgment on all the material. In this instance, I do not characterise that disturbance as a significant one, and conclude that the Magela Creek sewage pipeline is not a “major earthwork”.
Section 251D
82 The Council advanced a construction of s 251D which would give it a sweeping operation. That construction should be rejected. Section 251D is facilitative: it is intended to ensure that where there are public works, they can be carried out, or the products of the public works effectively used, without interaction with native title rights and interests.
83 That is, if the public work itself has extinguished native title but land or waters adjacent to it are still subject to native title, the purpose of the extinguishing provisions could be compromised. Sundberg J recognised this in Neowarra v State of Western Australia [2003] FCA 1402 at [659]:
Section 251D is specifically directed to public works, and is plainly intended to operate in conjunction with ss 23B(7) and 23C(2). There is no reason to deny its beneficial function of ensuring that a public work has the benefit of adjacent land that is necessary for or incidental to the operation of the work, especially in relation to access to landlocked works.
(Emphasis added.)
84 His Honour’s example aptly illustrates the confined operation of the provision. So too what was said by Mansfield J in the trial judgment in Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472; 207 ALR 539 at [299]:
If those works are valid public works, s 251D of the NT Act has the effect that the areas of land upon which those roads and infrastructure are constructed or established or situated are taken to include adjacent land the use of which is or was necessary for, or incidental to their construction, establishment or operation. In the case of the roads, the necessary area is said to include a corridor, the physical extent of which is dictated by what is necessary to service and maintain them. In the case of the infrastructure, the necessary area is said to include the hard stands upon which the works are located.
(Emphasis added.)
85 In Banjima at [1452], Barker J also adopted an approach of asking whether access over other land was “necessary” for access to the public work. Another matter to note from Barker J’s judgment at [1453]-[1456] is that insufficient evidence led his Honour to reject evidence of those contending for extinguishment about the size of the area to which s 252D should be found to apply, in respect of three water bores. His Honour stated at [1456]:
In the circumstances I would not find extinguishment in respect of water bores in respect of an area as great as 1 ha (which in old imperial measure is about 2.46 acres), when a water bore itself covers an area of only 1 square metre. In that regard I note that Mr Armstrong does not specify 1 ha without qualification, but says that an area of “about 1ha” is required.
86 That led his Honour, in a pragmatic way, to decide at [1457] that “some allowance” for access should be made, at 0.10 ha.
87 A further example from Banjima is the approach taken to a tourist information bay along the State Highway to Karijini National Park. Contrary to the submissions of the native title applicant in that decision, Barker J found (at [1470]-[1474]) that this area was to be regarded as part of the public work that was the highway itself by reason of s 251D, because it was “adjacent to the roads and serves motorists and so is included in the operation of the roads”.
88 One matter which should be referred to from Mansfield J’s reasons in Margarula on the application of s 251D is what his Honour says at [363] about land adjacent to a townhouse complex which was accepted to be a public work, where the Northern Territory relied on the existence of what it submitted was a “shared park/garden area” visible on a satellite map. Mansfield J found:
In my view, the satellite map alone does not constitute proof of all these things. It demonstrates that lot 871 is indeed “bounded and isolated” together with lot 872 by roads on all sides. But that is not the definition of an “adjacent land”. The appearance of lot 871 on the satellite map is also consistent with a characterisation of it as a “shared park/garden area”. But its appearance could also be consistent with a host of other uses. There is insufficient evidence to conclude that it is an “adjacent land” to the public work on lot 872.
89 The point of referring to this example is as an illustration, no more, of the operation of the burden of proof in these circumstances, and the need for the Court to be persuaded by the nature of the evidence before it. Satellite maps, like aerial maps in the current proceeding may or may not be sufficient proof of the elements of s 251D.
90 The Council did not challenge the primary judge’s treatment of these authorities, but rather her Honour’s application of them to the evidence. We have spent some time on the authorities to demonstrate that her Honour did not err in her application of the approach required by the definition of “major earthworks”, nor by the operation of s 251D as picked up and applied by the NTA (SA). We turn to explain why this is so by reference to the grounds of appeal.
The 16 grounds of appeal
91 We do not consider that any of the 16 grounds of appeal should be upheld.
Ground 1
92 This ground challenges a single aspect of the primary judge’s fact finding, at [71] of the reasons, about one scrape (scrape 16). Paragraph [71] states:
A photograph of the scrape at hole 16 looking back over the fairway depicts an elevated area with a fairway behind it. The surface area of the elevation is not specified in the evidence. It appears to be a circular shape of approximately 15 square metres. The height of the elevation does not appear to be more than 60 cm. In the absence of evidence to the contrary it is reasonable to infer that the scrape at hole 16 is typical of most of the other scrapes.
93 The Council submits the “uncontested evidence” about the size of this scrape is found in the affidavit of Mr Rumbelow filed 11 June 2020, [3] and annexures JGR-3 and JGR-4.
94 Paragraph [3] simply refers to annexures JGR-3 and 4, and deposes they are photographic images of the golf course from 1967 and 1998 respectively, which he has annotated. In other words, Mr Rumblelow gives no direct evidence himself about the size of scrape 16, and these photographs contain images of many scrapes on the course. The two images have no scale measure attached to them.
95 Scrape 16 is highlighted on the far right hand side of JGR-3. On the face of photograph, the red circle signifying scrape 16 is smaller than some of the other red circles, signifying other scrapes. Whereas on JGR-4, all or most of the red circles appear on the face of the photograph to be of approximately the same size.
96 Again, on the face of the photograph, all of the scrapes appear smaller in size than the houses which can also be seen on the photograph.
97 No probative basis in the evidence before the primary judge has been provided by the Council upon which this Court could identify error in the primary judge’s factual finding about size. Her Honour was much more familiar with all the evidence than this Court. This Court was taken to nothing more than selected aerial photographs. At base, the Council asks the Court to speculate about size of scrape 16 and whether it was “typical”, and that is not appropriate. The most that can be said is that a visual inspection of the two annexures confirms her Honour’s assessment of scrape 16 as being “typical” in size, aside from the Crows Nest scrape, appears correct.
98 Ground 1 is not made out.
Grounds 2, 3, 10 and 12
99 These grounds challenge the primary judge’s findings at [104], [109]-[111], and [112]-[114].
100 There is no error in the primary judge’s findings at [104], where her Honour said:
An important feature of the “major earthworks” definition is its focus on disturbance to the land itself, rather than upon the erection of fixtures or features upon or above the land’s surface per se. The disturbance must be “to the land”, and it must be “major”.
(Original emphasis)
101 That is an approach consistent with the authorities we have explained above. That the disturbance must be “to the land” is apparent from the text of the definition itself – “whose construction causes major disturbance to the land” (the second part – “or to the bed or subsoil under waters” not being in issue in the trial). We have explained above the importance of the word “major” and the primary judge was, with respect, correct to emphasise this.
102 At [109]-[111], the primary judge dealt with the evidence about how some of the features on the golf course (such as mounds and scrapes were made), and how they were altered:
In my view, it may reasonably be inferred that the works for the creation of the features of the golf course (and the later changes to those features) were subjectively intended to be indefinite at the time that they were undertaken. However, the fact that a significant number of features of the golf course were removed, relocated or altered from time to time is informative of the objective nature of the works and the degree to which they have impacted the land. The removal of mounds and scrapes is illustrative. Qualitatively speaking, the construction of scrapes and mounds involved the importation of fill for the purpose of raising the level of some parts of the ground to varying degrees. The evidence does not demonstrate that the construction of the mounds and scrapes involved disturbance of the land surface before fill (in the nature of imported slag or creek sand) was mounded upon it. Whilst the construction of those features no doubt involved the use of heavy machinery and the importation of fill, I am not satisfied that those activities constituted major earthworks when considered in the context of the golf course as a whole.
Whilst Mr Lane and Mr Rumbelow both referred to features of that kind being removed or replaced, it was not suggested that the land below the compacted mounds was significantly “disturbed” such as to require remedial works of any significance to be done to the underlying land when the man-made elevations were taken away. There is no evidence of remedial works in fact being undertaken so as to rehabilitate the land formerly covered by relocated scrapes or mounds, and it does not appear from the evidence that any such remedial work was required in fact. In my view, upon the removal of features of that kind, the land below was in its original state, as it had always been.
It is conceivable that the construction of mounds and scrapes may have caused some compaction in the underlying land, but there is insufficient evidence to support a finding that the compaction was “major” in its effect. I would draw that conclusion no matter what the height of each scrape.
103 These passages are responsive to, and accepting of, a submission made on behalf of the Wirangu respondent at trial, recorded at [108] of her Honour’s reasons, where the Wirangu respondent submitted that the activities undertaken on and relating to the golf course did not fall within the concept of “major disturbance” and instead were the “modification and adaption of the parklands to allow golf to be played”, occurring “in an evolutionary way over a number of decades”. The Wirangu respondent submitted there was no evidence they were intended to be permanent.
104 As the authorities indicate, the permanency of the changes made to land is capable of being an indicator of whether or not construction has “caused major disturbance”. Her Honour was, with respect, correct to consider this factor, and the evidence plainly bore out a finding that the constructed features of the golf course had changed over time, but had done so largely by moving soil around on top of the land, rather than excavating under the land. The absence of significant excavations under the land was also capable of being an indicator of no major disturbance. These were matters for her Honour on the evidence and no error has been demonstrated.
105 The primary judge’s findings at [112]-[114] were:
The impact of the scrapes, tee-off points and mounds may also be considered having regard to the size of the footprint occupied by them relative to the surface area of the golf course as a whole. In the context of an area totalling 31 hectares, the areas on which the tee-off points and scrapes are situated are very small indeed. That is not to lose sight of the importance of considering the golf course as a singular “work”, but if the scrapes and tee-off points are to be regarded as the most serious of all of the wounds on the land, I consider them to be few and far between.
Two mounded features require specific attention: the tee-off point and the scrape described earlier in these reasons at [74] and [70] respectively. Each of those features is significant in height relative to the usual height of the surface of the land. As has been said, the tee-off point is accessed by players using stairs to reach it. Notwithstanding their size relative to the other mounded features, I do not consider these features to be significant when considered in the context of the land as a whole and I do not consider the works for the construction of those two features to constitute major earthworks when considered both qualitatively and quantitatively.
As Mansfield J said in Margarula, by reference to the Explanatory Memoranda, the “major earthworks” definition is intended to cover large scale earthworks such as damns and weirs which permanently (or at least indefinitely) disturb the land. The evidence shows that the mounds are not immovable from the earth’s surface and that they have in fact been removed or rebuilt in accordance with the Club’s desires to change the configuration of the game from time to time. As has been said, neither their construction nor their removal involved major disturbance to the land in the requisite sense.
106 It is not correct to understand what the primary judge says in these passages, or the earlier ones extracted in this section as “excluding” the filling of land, or fixtures, from the definition of “major earthworks” (ground 2). Rather, the primary judge describes, correctly with respect, the “focus” of the definition as disturbance to land. Similarly, in considering the evidence that most of the mounds, scrapes and tee-off points were constructed using fill from elsewhere piled on the existing surface of the land, the primary judge was entitled to consider this as a factor weighing in her assessment of whether the construction of these features “caused” major disturbance to the land. The causal factor in the definition should not be overlooked and her Honour did not overlook it.
107 Likewise, contrary to the contention contained in ground 3, the primary judge did not construe the word “land” in the definition of “major earthworks” as meaning only subsurface and soil. Rather, the primary judge focussed on the whole of the definition – construction causing major disturbance – and in this context focussed on the nature and extent of the changes brought about by the creation of mounds, scrapes and tees, noting the absence of much if any disturbance to the surface and subsoil. There was no error in this approach.
108 Grounds 10 and 12 deal with the kind of comparison used by the primary judge in assessing whether the activities fell within the definition of major earthworks. In submissions, these grounds were developed by reference to what might be called a “comparator” argument: see [55]-[56]. There appear to be two different kinds of comparisons the Council submits the primary judge should have undertaken, but did not. The first was a comparison of how the entire golf course (not just the disputed parcels) appeared at or prior to sovereignty, with how it appeared by 1 January 1994: see ground 10. The second was a scale-based comparison – namely, that the primary judge should have compared the “size and scale of the golf course” with its townscape surrounds, or the size and scale of the fairways, scrapes, tee-offs, and mounds with the townscape surrounds; or the “size and scale of the fairways, scrapes, tee-offs, and mounds compared with the cadastral parcel in which they were situated”. It can be seen that some of these alternatives are mutually inconsistent with each other, as to what the correct comparison was (assuming one had to be made, which in the terms put we do not accept).
109 These grounds are not expressed to involve s 251D.
110 As to the first kind of comparison, the simple answer to this contention is that there was not sufficient evidence before the primary judge to make such a comparison, even if the primary judge was expressly invited by the Council to do so, which is not apparent from the reasons. However, counsel for the Council and the State confirmed during the appeal hearing that this submission was put, and was also put by the State. The submissions of the Wirangu respondent on this issue should be accepted. Mr Lane’s affidavit evidence (in his 17 May 2020 affidavit) was at the most general level – he deposed that vegetation was removed from some areas without saying where and if any of that activity occurred on the disputed parcels, and that other areas were rehabilitated. He deposed (unsurprisingly, as a witness for the Council) that what occurred were “major earthworks”, an assertion which carried no real probative value in the context of a statutory definition.
111 The submissions of the Council at [14]-[15] of its reply should be rejected, as should the submissions to similar effect made orally. The Council bore the burden of proof that a public work on the disputed parcel, consisting of major earthworks, had extinguished native title. For it to contend that there is no real evidence about how the land appeared at sovereignty and therefore the requisite degree of “disturbance” can somehow be assumed, or that the Court can speculate there was the requisite degree of disturbance “caused to the land”, must be rejected. Counsel’s attempt in oral submissions to persuade the Court, by reference to aerial photographs in evidence, that all of the land was covered in dense vegetation, should be rejected. Apart from anything else, the somewhat poor quality aerial photographs to which the Court was taken do not themselves enable any findings about the nature and density of the remaining vegetation on which counsel relied. The findings of Mansfield J in Margarula about the use of photographs might here be recalled. Beyond this, there is no probative basis for any inference to be drawn from the evidence to which the Court was taken about the extent of vegetation coverage at sovereignty. Even if such an inference were to be drawn, the removal of some vegetation to create fairways does not inescapably amount to a “major disturbance to the land” caused by the construction of the fairways. That was clear from many aspects of the primary judge’s reasoning and we respectfully agree. This contention gives the word “major” no work at all to do. It also gives the concept of construction “causing” major disturbance no real work to do.
112 As to the second kind of comparison, the primary judge well appreciated the need to consider the effect of the construction of fairways, mounds, scrapes and tees in the overall context of the golf course as a whole, recalling that the issue before the primary judge was not whether native title was extinguished by major earthworks over the whole of the golf course, but rather whether it was extinguished by major earthworks over the disputed parcels, being only certain parts of the golf course. The principal focus was on the disputed parcels and whether the construction of a public work on those parcels extinguished native title, subject of course to the operation of s 251D. Some of the Council’s submissions on these grounds invited quite the wrong approach to the question before the primary judge, which was a parcel-by-parcel exercise. The “context” – recalling for example the observations of Barker J in Banjima – might require regard to be had to the wider landscape effects so as to understand the proportionality and context in order to decide if the disturbance is properly described as “major”, but her Honour’s reasons demonstrate she was alive to this issue, for example by findings such as those at [112] – “[t]hat is not to lose sight of the importance of considering the golf course as a singular work”.
113 Grounds 2, 3, 10 and 12 are not made out.
Grounds 4-9 and 15
114 All these grounds as expressed in the notice of appeal suffer from the flaw of simply asserting error in a factual conclusion by the primary judge, without identifying why the finding was erroneous.
115 It is correct, as the Council submits, that at [76]-[79] of the primary judge’s reasons, her Honour summarises the evidence about how the golf course was constructed (and therefore, we infer, how the construction on the disputed parcels occurred):
A fairway is created by using a grader to clear the surface of the ground so that grass may grow over the cleared area. The shapes of the fairways are depicted in both the 1967 and 1998 photographs. I am satisfied that immediately prior to 1994, the vast majority of the land constituting the golf course was dedicated to fairways which, for the most part, were cleared of vegetation.
Mr Lane recalls that front-end loaders and seeding combines were used to till the ground and to mass-plant grass seeds along the fairways, including (and especially) at the time that the Sceale Bay Road was removed.
It is otherwise reasonable to infer from the aerial photographs that the creation of a new fairway and the reshaping of other fairways involved the removal of vegetation and the seeding of grass.
116 Thus, it can be taken (and the Council did not contend otherwise) that the primary judge correctly understood the evidence about the machinery used in the construction and alteration of fairways, mounds, scrapes and tees.
117 In addition to the passages in the primary judge’s reasons which were also impugned by the previous group of appeal grounds, the primary judge’s reasoning at [105]-[106] was also impugned by these grounds and should be set out:
I do not consider the planting of grass on the surface of land to constitute a major disturbance, even if the process of vegetation involves some amount of grading with heavy machinery in preparation for seeding, together with significant human effort. The same may be said of works involving the removal of vegetation. The removal of vegetation and the seeding of grass no doubt changed the aesthetics of the land, and significantly so. It also altered the uses to which the land could be put, transforming it from what the Council described as “scrubland” to a golfer’s fairway. But a change to the appearance or amenity of the land’s surface is not the test. It is necessary to have regard to the impact upon the land, both qualitatively and quantitatively.
In my evaluation the removal of vegetation or the reseeding of the land with grass did not cause “major” disturbance to the large tracts of land forming the fairways, notwithstanding their very large surface area. I consider that if the fairways were to be left unmaintained, they would soon enough revert to “scrubland” of the kind that existed before golf was first played there without the need for any remedial activity. It follows that the fairways, of themselves, do not constitute major earthworks and so are not public works.
118 These passages, and the other impugned passages at [109] and [111] are consistent with the approach taken in the authorities to which we have referred and no error of the kind alleged is disclosed. The bare fact of the use of heavy machinery may say little about the proper characterisation of the construction activity, as Mansfield J’s finding in Margarula about the Magela Creek pipeline illustrates.
119 Ground 9 appears to draw on construction activities outside the disputed parcels and to that extent could only relate to an alleged error in the application of s 251D. As we explain below, the primary judge made no such error.
120 The passage at [115] simply draws together the primary judge’s earlier conclusions and accordingly is not erroneous. This paragraph also deals briefly with s 251D, and we consider it again below in that context.
121 Ground 15 concerns one tee-off (Tee 2) and a particular scrape called “Crows Nest”. Tee-off 2 was described at [74] of the primary judge’s reasons:
The most built up tee-off point is that for hole 2. A photograph shows a mound of about 2 metres in height. Players reach the tee-off point by climbing steps. Mr Rumbelow estimates that approximately 25 cubic metres of earth was utilised to create that particular tee-off point.
122 The “Crows Nest scrape” is described at [70]:
Prior to 1994 (as now) different scrapes had different heights above their associated fairways. Some were more-or-less at ground level, but most were built up. The “Crows nest” scrape near (old) fairway 3 was the highest, standing about 1.8 metres higher than the fairway at its rear. It is not typical of the other scrapes. It is situated on a disputed parcel.
123 It is common ground that there was a clear photograph of Tee 2 annexed to Mr Rumbelow’s May 2020 affidavit (JGR-2). The “Crows Nest scrape” appeared on one of the aerial photographs annexed to Mr Rumbelow’s June 2020 affidavit (JGR-3). The Council’s contention about these two features appear to be that the primary judge again diminished or downgraded their size, in a way which did not reflect the evidence or a correct understanding of the phrase “major disturbance”. That submission should be rejected. As with the other assessments and characterisations the primary judge undertook, her Honour appreciated the size and scale of these features both in relation to the whole of the disputed parcels, and in the context of the golf course as a whole. Her Honour appreciated the kind of machinery used to create them, and the changes wrought to various features over time.
124 The specific contention made by the Council that the aerial photograph indicates the Crows Nest scrape was “about the size of a house” cannot be accepted. The photograph indicates no such thing on its face and the Council did not direct the Court to any other evidence to substantiate that submission. Even if the overall size was the same, of itself that would not necessitate a conclusion that the construction of that scrape caused a major disturbance to the land in and around where the scrape was located, or the wider area of land on the disputed parcel.
125 Finally, the Council’s submissions on this ground ignore the primary judge’s hesitation, and apparent rejection, of some of the Council’s evidence and submissions about the size of some of these features and the amount of soil moved or used in their construction. At [72], the primary judge made the following findings in relation to the Crows Nest:
Mr Rumbelow estimates that approximately 500 cubic metres of earthworks “occurred” in the construction and removal of the scrapes, although he does not specify any basis for that calculation, nor does he state how much of the earth was utilised in the building of the scrapes, as opposed to the removal of previously man-made features to reduce the scrapes in number from 13 to 10. Mr Rumbelow does not suggest that 500 cubic metres of earth was excavated from below natural ground level. The figure of 500 cubic metres of earthworks in connection with the scrapes is otherwise difficult to reconcile with the figure of 80 cubic metres of top soil brought in to raise and revegetate the land where the Sceale Bay Road (a much larger surface area) was once situated. The difference in figures may be explained by the importation and compaction of fill used to create the scrapes, but the position is far from clear.
126 And at [75], in relation to Tee 2 and her Honour’s comments extracted above at [121], the primary judge found:
Again, that evidence is difficult to reconcile with Mr Lane’s evidence that 500 cubic metres was used to create the scrapes. However, in the result, nothing of significance turns on the apparent discrepancy.
127 Grounds 4-9 and 15 are not made out.
Grounds 11, 13, 14 and 16 (s 251D, NTA)
128 These are the grounds dealing with s 251D of the NTA (extracted above at [36]). It should be emphasised at the outset that s 251D of the NTA does not directly apply as any extinguishment is effected or confirmed by the NTA (SA) in accordance with the NTA. Rather, s 31(2) of the NTA (SA) picks up and applies the definition of land or waters on which a public work is situated in s 251D of the NTA, to the reference to that expression in s 34(1) dealing with the effect of category A past acts that are public works and s 36G of the NTA (SA) concerning the effect of previous exclusive possessions acts which are public works attributable to SA. Certainly, no contention was raised on the appeal to the contrary.
129 The primary judge understood how the s 251D argument was being framed, and this is apparent from [91]-[92] of her Honour’s reasons:
The primary argument advanced by the Council is that all of the works for the construction of the golf course are to be considered as a whole and that the works involved a major disturbance to the whole of the land in question. On that analysis, it was submitted, “major earthworks” are situated in fact on the whole of the land comprising the golf course without resort to s 251D of the NT Act. The alternative argument is that some elements of the works constituted major earthworks and that those works must be taken to be situated on the whole of the golf course by the deeming operation of s 251D.
By way of example, of the latter approach it was submitted that if the Court should determine that the construction of the scrapes involved major disturbance to the land in the relevant sense, then s 251D would operate to include the fairways in the land on which the works were “situated” (even if the construction of the fairways did not involve major disturbance in and of themselves). That conclusion was said to follow because the fairway was adjacent to the land on which the earthworks occurred and because the use of the fairway was “necessary for, or incidental to, the construction, establishment or operation of the work” within the meaning of s 251D. It is in that way that major earthworks occurring in fact upon one part of the golf course (including on an undisputed parcel) were said to have the consequence that a public work is situated on the whole of the course.
130 Thus, the Council’s argument at trial employed s 251D in at least two different ways – if the construction of scrapes, mounds and tees were major earthworks, then the fairways were brought in by operation of s 251D; alternatively if the construction of the features on all of the disputed parcels were not major earthworks, then the construction on other parts of the golf course (ie on the undisputed parcels) brought those disputed parcels in and extinguished native title by reason of s 251D.
131 On appeal, the focus of the Council’s argument was on the second way of using s 251D, especially by reference to the construction of the car park, access road into the course and the clubhouse. All of these were accepted to have been public works, but on undisputed parcels of land over which it was accepted native title was extinguished. There were also other agreed bases for extinguishment on the undisputed parcels, summarised in the primary judge’s reasons at [16].
132 The primary judge’s principal finding about s 251D appears at [115] of the reasons, extracted at [49] above. That finding covers the first way in which the Council put its arguments about s 251D (see also [95]). It cannot be impugned successfully because, as we have explained, her Honour’s primary findings about the construction of the tees, mounds and scrapes have not been shown to be erroneous.
133 At [101]-[102], the primary judge addressed the second way in which the Council’s argument was put (with our emphasis):
As has already been observed, the construction of buildings such as the club rooms and the Sceale Bay Road each satisfy the definition of a “public work” because they are a “building” and a “road” respectively (see para (a)(i) and para (a)(ii) of the definition). The creation of those structures first occurred prior to 1975 and so had the effect of wholly extinguishing native title on the land on which they were situated. However, the Council did not suggest that the remainder of the 31 hectares of land on which the golf course is located should be considered as land upon which the road and club rooms must be taken to be situated because of the operation of s 251D of the NT Act. If I have misunderstood the Council’s position in that respect I would conclude that s 251D does not have that operation on the facts. It has not been submitted that the whole of the golf course was incidental to or necessary for the construction and use of the road or the club rooms, nor does the evidence establish any such proposition.
The evidence in relation to the reintegration of the land on which the road once stood no doubt involved a major disturbance to the land, but native title on that parcel of land had already been wholly extinguished by virtue of the construction of the road prior to 1975. The same may be said of the later extensions to the club rooms and driveway incorporating the car park. That work occurred on land on which native title was wholly extinguished by virtue of the original construction of the building and car park prior to 1975. I not consider s 251D of the NT Act operates in a way that would include the remainder of the 31 hectares of land to be land upon which the works for the original construction or later expansion of the club rooms or car park is situated in any event.
134 Therefore, the first point is that, at least on her Honour’s reasoning, the primary judge did not understand the Council to make the argument it now seeks to make on the appeal. This was not addressed in submissions by either party on the appeal. If her Honour is correct at [101], then the Council would need leave to make an argument not made at trial, and no such leave was sought. That is enough to dispose of the arguments based on the carpark, road and clubhouse.
135 Alternatively, if the Council’s arguments are considered at a substantive level, they also fail.
136 First, at a level of principle and construction, the Council’s written submissions are incorrect. Section 251D does not deal with land which is “merely” (to use the Council’s word) incidental to activities found to be major earthworks. Rather the word “incidental” takes its colour from the word “necessary”, and this is apparent from the authorities discussed earlier. The land outside the work itself must have a close connection with the “construction, establishment or operation of the work”. As the authorities disclose, in relation to roads this is commonly a strip of land on each side necessary for maintenance or proper use of the road. In Banjima, the tourist stop on the main road to Karijini National Park was incidental to one of the principal purposes of the road (as a major earthwork), being to provide public access to a national park.
137 In this way, the land surrounding the earthworks in question takes its character from the major earthworks, because of the connection between them. At a functional and practical level, if native title is extinguished with respect to the land on which major earthworks have occurred, the legislative purpose of extinguishing the native title in that land or of confirming extinguishment may be frustrated if for example, there is no practical access to the major earthwork for the purpose of maintenance, or other connected purposes. Sundberg J’s example in Neowarra of landlocked works, and the function of s 251D in adding an access road to such works, is a clear example.
138 The evidence is unclear as to whether the golf course was constructed (and in use) before any car park or club rooms. The evidence would appear to go no further than the primary judge’s findings at [81]:
The 1967 aerial photographs shows club rooms, an entrance road and car park already in existence. In the 1980’s the existing driveway was removed and a new driveway and large all-weather car parking area was created. The works for the car park affected an area of 1500 square metres. The car park was created by levelling the surface with a grader, adding a road base and compacting it with heavy rollers. The club rooms were extended and improved in the relevant period.
139 In the present case, it can be accepted that there is a connection between the clubhouse, the car park and the use by patrons of the golf course. But that is not how s 251D operates. In s 251D the principal action is the public work. Section 251D then extends the extinguishing effect of the public work for a limited purpose – only so far as the use of the additional land is or was necessary for, or incidental to, the construction, establishment or operation of the public work. Thus, for example, land around the car park, if needed for access to or maintenance of the car park, may be included by reason of s 251D. The same would be true of the clubhouse, and for the land in proximity to the building itself. As Barker J’s reasons in Banjima disclose, no ambit claims can be made about this, and the Court will take a cautious and practical approach in determining what additional land is, in fact, “necessary for or incidental to” the construction, establishment or maintenance of the public work for the purposes of s 251D, including as applied by the NTA (SA). That is because s 251D has an additional extinguishing effect on native title.
140 The Council’s argument turns s 251D on its head, seeking to characterise the agreed public work (eg the car park or the club house) as incidental to the playing of golf on the golf course. That is not how s 251D operates.
141 Grounds 11, 13, 14 and 16 are not made out.
Conclusion
142 None of the earthworks grounds are therefore made out.
The Lease question
143 The answer given by the primary judge to the Lease question must be understood in the context that, at the time of trial, the Council did not produce the Lease which was critical to this question. Neither was any unexecuted copy of such document, nor any drafts, produced. In that context, at [200], the primary judge found that the evidence, considered as a whole, was insufficient to support a conclusion that there existed a specifically enforceable agreement for a lease, or a lease that was otherwise enforceable in equity at any time before 23 December 1996.
144 At [202] and [208], the primary judge held further that, had she been persuaded that a lease was executed after 23 December 1996 and that the lease was expressed to be for a 10 year period commencing before the date of its execution, that is, on 1 July 1994, such a grant was not a previous exclusive possession act for the purposes of the NTA and so did not operate to extinguish native title.
Application for leave to adduce fresh evidence
145 The application for leave to adduce fresh evidence arises from the fact that, on 10 February 2021, almost two months after the primary judge delivered judgment, a member of the Club, Ms Helen Flannigan, located the Lease in a clear plastic box that had been brought to the Club a day or two earlier by the then Club Secretary, Mr Tyson Redden (Affidavit of Helen Flannigan sworn on 10 March 2021, [7], [18], [20], (Flannigan affidavit)). Ms Flannigan also deposes to having found the Club’s minutes books for the period 1992-2002 and end-of-year financial summaries for 1992-1998 (Flannigan affidavit, [21], [22]).
146 As submitted by the Council, the Lease is plainly relevant to the findings below: that the existence of a written lease was executed at any time before 23 December 1996 was not proved; relating to the date of execution of the lease; as to whether there was an agreement to lease and/or the “grant” of the lease occurred in the intermediate period; as to whether an inference can be drawn as to the Club’s compliance with the terms of an unwritten lease, or an agreement to lease.
147 Unsurprisingly, the Wirangu respondent opposed the grant of leave on the basis that:
(a) The Council failed to exercise due diligence in attempting to procure the evidence before trial in that the evidence in question, a copy of the 1997 lease, had been continuously in the possession of the Secretaries of the Golf Club at all times, they simply did not look for it in the Golf Club archive boxes of which they had custody;
(b) If the evidence had been available at trial the result would not have differed, in that the evidence demonstrates the lease was not executed between 1 January 1994 and 23 December 1996 and so was not an intermediate period act that would extinguish native title. The trial judge proceeded, accurately, on the basis that a lease was executed after 23 December 1996. Accordingly, there is no error to correct and the proceedings have not miscarried.
148 Section 27 of the FCA Act provides:
27 Evidence on appeal
In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:
(a) on affidavit; or
(b) by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or
(c) by oral examination before the Court or a Judge; or
(d) otherwise in accordance with section 46.
149 The relevant principles which guide the exercise of the Court’s discretion under s 27 were recently restated by the Full Court in Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16], per Griffiths and White JJ:
Drawing on authorities including CDJ v VAJ [1998] HCA 67; 197 CLR 172; Cottrell v Wilcox [2002] FCAFC 53; Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136; 245 ALR 389; Watson Australian Community Pharmacy Authority [2012] FCAFC 142; 206 FCR 365 and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3, they may be summarised as follows:
(1) The discretion conferred by s 27 is unfettered, save that it must be exercised judicially and according to principle.
(2) The power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry.
(3) The power is not constrained by common law rules that govern the grant of new trials on the ground of discovery of “fresh evidence”.
(4) The following two considerations will normally be relevant to the exercise of the discretion:
(i) the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and
(ii) the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence;
(5) The interests of third parties and the public at large may outweigh a party’s interest in the finality of litigation. For example, a greater willingness to receive further evidence on appeal has been apparent in bankruptcy matters which affect the interests of creditors generally.
150 Mortimer J, writing separately but agreeing with the orders and declarations of the majority, said at [48]:
… the Court’s appellate task (the correction of error) would miscarry if it were to shut its eyes to the existence of [the subsequently discovered evidence] and decide the appeal on what it knows is the incorrect and incomplete factual basis as it existed before the primary judge.
151 The Council contended that the fifth principle articulated in Quall (No 3) by Griffiths and White JJ is of particular significance to this application. It posited that the interests of third parties and the public are “at a maximum” in native title litigation because native title determinations are “once-and-for-all” judgments in rem. It said further that it is acting in the public interest. The Wirangu respondent denied that the interests of justice outweigh the prejudice to its or a party’s interest in the finality of litigation.
152 The two central issues that fall for determination in relation to the application for leave to adduce fresh evidence are whether:
(a) the result at trial would have very probably been different had the Lease been in evidence been before the primary judge; and
(b) the Council can demonstrate that it was unaware of the existence of a physical version of the Lease and could not, with reasonable diligence, have been made aware of its existence.
Would the result very probably have been different?
153 The primary judge held, at [132], that the evidence did not establish the existence of a lease prior to 23 December 1996 conferring upon the Club a right of exclusive possession of the land, and at [144], that neither the Council nor the Club has produced a written lease executed by them applicable to any period prior to 23 December 1996.
154 In the absence of there being sufficient evidence of the existence of a written lease, and therefore no evidence of compliance with the formalities required by s 28 and s 29(1) of the Law of Property Act 1936 (SA) and s 41 and s 166 of the Real Property Act 1886 (SA) necessary to satisfy the requirements at law for the creation of a lease, the Council contended that a lease enforceable in equity had nevertheless come into existence.
155 At [139], the primary judge held that the definition of “lease” in s 242(1)(a) of the NTA encompasses the principles underpinning the requirements for an equitable lease (Walsh v Lonsdale (1882) 21 Ch D 9) and may also contemplate a case in which a party to an agreement for a lease may be required in equity to grant a lease in the absence of a contract if the circumstances were such that a lease has been promised and it would be unconscionable for the promisor to resile from that promise (Walton Stores (Interstate) Ltd v Maher [1988] HCA 7; 164 CLR 387). The primary judge held further, at [140], that there was no reason in principle to conclude that the equitable principles should not also apply to the formation of a “community purposes lease” as defined in s 249A of the NTA. These findings are not challenged.
156 The primary judge’s finding at [134] that a “community purposes lease” (as required by s 23B(2)(c)(viii)) between 1 January 1994 and 23 December 1996 (if it occurred) would be an act that would extinguish native title, provided it did not contain a reservation for the benefit of Aboriginal people, was also not challenged.
157 At [135], the primary judge was also satisfied that a public work, in the nature of a building or road, which existed on a part of the land that was alleged to be the subject of a lease, would be sufficient to satisfy the requirement of s 232A(2)(3)(ii) of the NTA were the lease to be proved. That finding is also uncontentious.
158 At [208], relying on the approach taken by Mansfield J in Margarula at [241], the primary judge held, that the grant of any backdated lease after 23 December 1996 was not a previous exclusive possession act for the purposes of the NTA and so did not operate to extinguish the applicant’s native title in relation to any part of the land. That finding was of course premised on the previous finding, also at [208], that “there did not exist an agreement for the grant of the lease (in the relevant sense) at any time prior to 23 December 1996”.
159 In Margarula, Mansfield J held, at [236], that:
… for the purposes of the NTA, the grant of a sub-lease “takes place” at the moment that the sub-lessee becomes entitled to the rights attached to the sub-lease, that is at the moment of commencement. That resolves the first issue (whether the grant takes place at the date of commencement or registration).
160 In that case, a number of sub-leases were executed after 23 December 1996 but their commencement date was backdated so that the sub-lease commenced before 23 December 1996.
161 He continued, at [240]-[242] (with our emphasis):
It follows that it would be inimical to the [previous exclusive possession (PEP)] act scheme for a grantee of a proprietary interest to obtain the benefit of “PEP” act status where the interest in question had in fact been granted after the Wik decision, but with retrospective effect. At the time the parties decided to create the interest, the Wik decision had been handed down. Generally, as has been observed, parties in such circumstances would not be entitled to avail themselves of the benefit of the PEP act scheme. There is no policy reason why the mere fixing of a retrospective date of operation of the interest should mean that the holder of the proprietary interest becomes entitled to that benefit.
Accordingly, in my view, it follows that the relevant date on which a grant of a proprietary interest should be said to have “taken place” for the purposes of s 23B of the NTA is the date of the commencement of the interest – that is the date upon which the holder of the interest becomes entitled to exercise the rights that are attached to the interest – or (in the second category of instances referred to above), the date upon which the interest was agreed to be granted (in this case, the date of the execution of the sub-lease instrument), where the commencement is deemed to have commenced at an earlier date.
It follows from the above that any sub-lease that commenced before 23 December 1996 but was registered after 23 December 1996 is a PEP act. The date of registration is not relevant to the question of whether the grant of an interest is a PEP act. However, it also follows that any sub-lease that was executed after 23 December 1996, but given retrospective effect so as to commence before that date, is not a PEP act.
162 Had the Lease been available at trial, as the primary judge said at [202], her Honour would have found (instead of assuming) that a lease was executed after 23 December 1996, the content of which included a 10 year term commencing on 1 July 1994.
163 However, it would remain necessary to show, at the very least, that there was a contract for a lease being specifically enforceable and coming into existence before 23 December 1996. As the primary judge found, at [141], it would be sufficient to prove the existence of an agreement (in this case an agreement for a community purposes lease) to which the parties intended to be legally bound.
164 The mere fact of the production of the Lease, however, does not assist in determining whether or not the date of the grant of the lease, or the date on which the lease became susceptible to a decree of specific performance (Walsh v Lonsdale), preceded 23 December 1996 so as to constitute a previous exclusive possession act for the purposes of the NTA, for reasons we later explain.
165 The primary judge found as follows:
On 14 February 1994, the ratepayers of the Council ward incorporating Streaky Bay carried a resolution in favour of the Council granting a lease to the Club in respect of the land the subject of this dispute: at [156];
By letter dated 28 April 1994, Mr Lane, on behalf of the Council, sought the approval of the Minister for the grant of a lease to the Club in respect of the land for the purposes of “golf course and recreational activities” for a term of 10 years: at [159];
On 2 June 1994, the Minister gave written approval for the grant of a 10 year lease, which together with the meeting of electors referred to earlier, fulfilled the statutory preconditions for the Council to grant a lease to the Club of the kind referred to in s 457(1) (of the Local Government Act 1934 (SA)): at [159]-[160];
There was no evidence of any response to a letter dated 14 June 1994 from the Council to the Club purportedly enclosing “for your organisations signature two copies of the previously discussed agreement”: at [179]. No document was attached to the letter in evidence: at [180]-[181];
A minute of a meeting of the Council dated 18 April 1997 records the Council carrying a motion that the Acting District Clerk and the Chairman be authorised to apply the Council seal and sign the lease document for the Club: at [182]. The minute plainly supports the inference that no lease had been executed by the Council in favour of the Club before that date: at [188];
The continued occupation of the land by the Club is not evidence of the Club’s acceptance of the terms of lease offered by the Council’s letter of 14 September 1994: at [196]. There is otherwise no evidence that the Club took out a public liability insurance policy so as to evidence performance of a critical obligation under the lease: at [197]; and
There is otherwise no evidence that the Club took out a public liability insurance policy so as to evidence performance of a critical obligation under the lease: at [197].
166 Only the last two factual findings are challenged by the Council. In this regard, the Council placed some emphasis on the significance of the recently discovered “Minutes of meeting” held on 9 February 1994, apparently signed by Mr Bruce Rumbelow, Secretary of the Club (Flannigan affidavit, annexure HF-02) as evidence of the acceptance by the Club of the Council’s offer of lease. The Wirangu respondent contended that these Minutes were probative of nothing because they do not record which body was meeting.
167 The Minutes of 9 February 1994 record:
A letter from Council outlining its request for the Club to agree to a peppercorn lease for 10 years was read. Once again, J Rumbelow explained the Leasing Agreement. Following discussion JW/GI moved that the Club advise Council that it agrees to the Leasing Agreement of the Parklands.
Carried
168 Contrary to what was submitted by the Council, Ms Flannigan did not depose to the document being the minutes of any particular committee. Nevertheless, an inference can be drawn that they were in fact the minutes of the Committee of the Club given the reference to them in the letter from the Club to the Council dated 11 February 1994, which was in evidence before the primary judge (Affidavit of Ceilia Divakaran sworn on 17 July 2020, annexure CD-24). That letter said:
At a meeting of the Streaky Bay Golf Club on 9.2.94 it was agreed that the Club accept your Council’s proposal of a ‘peppercorn lease’ of the area currently being occupied as a Golf Course.
The Club therefore will await your direction.
169 At [173], the primary judge held that the response from the Club to the Council established no more than an “in-principle preparedness” on the part of the Club to negotiate a lease at nominal rent.
170 The Minutes of the meeting of 9 February 1994, which the Council now seeks to adduce as fresh evidence, do not change the accuracy of that finding by the primary judge. Whilst the minutes record that the “leasing agreement” was “explained”, they do not suggest that any significant terms of a lease document were discussed beyond the “request to agree a peppercorn lease for 10 years”. Notably, nothing is recorded about the purpose of the lease being to transfer the risk of public liability from the Council to the Club, a matter which it can be inferred would be of some significance to members of the Club.
171 Grounds 17 and 18 cannot therefore be sustained.
172 Nor do these Minutes make good the Council’s submission that there was no further discussion about the terms of the lease subsequent to the meeting of 9 February 1994 such that the resolution contained in those minutes amounted to acceptance of the lease (or a proposal to lease) attached to the Council’s letter which was communicated to the Council by letter dated 11 February 1994, or to which effort was given by complying with its terms.
173 It follows that grounds 19 and 20(a) and (b) cannot be sustained.
174 There was simply no evidence of any communication relevant to the terms of the Lease between the Council and the Club in the three years that elapsed between 9 February 1994 and 18 April 1997. There was therefore no basis on which the primary judge could have found that a lease was granted or vested on or before 23 December 1996, or that that there was any agreement for a lease.
175 The Council seeks to rely, also by way of fresh evidence, on the statements of receipt and expenditure (Flannigan affidavit, annexure HF-03), spanning the period 1991-1998. These are relied on as evidence that the Club took out a public liability policy so as to evidence performance of a critical obligation under the lease.
176 The Council contends that the primary judge erred in finding that there was not a specifically enforceable agreement for a lease, or a lease enforceable in equity, prior to 23 December 1996. As has already been referred to above, if the primary judge had found that the Council had granted a lease to the Club prior to 23 December 1996, or that the lease was enforceable in equity prior to that date, the primary judge would have held that it was a community purposes lease as defined by the NTA which had extinguished any native title within the leased area.
177 The statements do not assist the Council in establishing that the lease was enforceable in equity prior to the date of execution of the Lease. They disclose that the Club was paying insurance premia from 1991 onwards and there was no significant increase in premia after 1994 from which any inference could be drawn that the Club’s insurance arrangements had been renegotiated in pursuance of a purported lease. In oral submissions, the Council pointed to an increase in premia as between 1994 ($1546) and 1995 ($1803). The statements show fluctuating premia across the relevant periods. No evidence was led to explain the fluctuations. The premium paid in 1992 ($1610.35) was higher than that paid in 1994 and there was a continuing decline in premia after 1995 – $1758 in 1996, $1537 in 1997, and $1548 in 1998. In the absence of evidence, it is not possible to speculate on the reasons for the differential pricing of premia between 1992 and 1998.
178 For these reasons, grounds 20(c), 21 and 22 cannot be sustained.
Can the Council demonstrate reasonable diligence?
179 Given our findings that, had the fresh evidence been adduced at trial, the result would not have been different, the question as to whether the Council can demonstrate reasonable diligence is strictly otiose.
180 A copy of the original Lease executed by both the Council and the Club was located by Ms Flannigan, the Treasurer of the Club, on 10 February 2021 (Flannigan affidavit, [20]-[22]). The first application for leave to appeal had been filed on 18 January 2021.
181 That document appears to have been executed by Mr David Lane on behalf of the Club and Mr John Rumbelow on behalf of the Council. Both deponents affirmed affidavits filed in these proceedings on 12 March and 17 May, and 18 May 2020 respectively. In his affidavit of 12 March, Mr Lane deposes to being unable to recall whether he was a signatory to the lease but expected that, as District Clerk/CEO, he was a signatory (Affidavit of David Lane sworn 12 March 2020, [20]). All three affidavits are silent as to the location of the Lease.
182 The Council submitted, in reliance on the Affidavit of Karina Dee Ewer sworn on 16 March 2021, (Ewer affidavit), the Affidavit of Lyall Mann sworn on 9 March 2021 (Mann affidavit), the Affidavit of Ty Redden sworn on 10 March 2021 (Redden affidavit), and the Flannigan affidavit that:
(a) The Council had engaged in extensive searches of the Council’s and other records but located only secondary evidence of the Lease;
(b) The Council made reasonable enquiries of the Club through various senior personnel who all indicated that the Club could not find the Lease; and
(c) The Club did not locate the Lease because: Mr Mann did not think it was the box of records he passed on to Mr Redden in 2019; Mr Redden thought the box held old financial papers; and the Lease was only discovered because Ms Flannigan persuaded Mr Redden to bring in his boxes for her to search.
183 Ms Ewer deposes to having been told in August 2020 by Mr Darren Walker, the Acting Chief Executive Officer of the Council, that he had spoken, inter alia, to Messrs John Rumbelow, David Lane and Ty Redden during this time about the location of the Lease but that none of the discussions led to its discovery (Ewer Affidavit, [48]-[49]).
184 It does not appear that either Mr Lane or Mr Rumbelow was asked to depose as to the likely whereabouts of the Lease.
185 Mr Redden, the current secretary of the Club, deposes that “No-one asked [him] to look for the lease” and that “nobody asked to look in the boxes” that he had been given by Mr Mann (Redden affidavit, [3], [15], and [18]). It was not until he attended a public meeting run by the Council on 20 January 2021 that he mentioned the boxes to Ms Flannigan who asked him to bring them to the Club (Redden affidavit, [27] and [34]).
186 Ms Flannigan deposes to having been unaware of these proceedings until attending the public meeting on 20 January 2021 (Flannigan affidavit, [11]-[12]).
187 Mr Mann deposes to having been the treasurer of the Club from 1999-2019 and secretary of the Club from 2007-2019 (Mann affidavit, [5]-[6]). He also deposes to being unable to recall being asked to search for a lease (Mann affidavit, [17]).
188 Ms Ewer also deposes to estimating that the Council had dedicated approximately 200 employee-hours searching for the Lease prior to the hearing before the primary judge in July 2020 (Ewer affidavit, [55]). It was, however, conceded in oral submissions that the Council had not sought to employ any of the Court’s formal processes, such as by seeking discovery of documents under Part 20 of the Federal Court Rules 2011 (Cth) or by issuing a subpoena to produce documents under Part 24 of the Rules.
189 In circumstances where no enquiries were made by the Council of the current secretary or treasurer of the Club as to the likely whereabouts of the Lease, and where none of the Court’s facilitative processes have been called in aid, we are not satisfied that the Council has discharged its onus of establishing that it could not have been, with reasonable diligence, made aware of the physical existence of the Lease.
The further proposed new grounds of appeal
190 Late on 29 August 2021, the day before the hearing of this proceeding, the legal representatives for the Council provided to the Court by email a further amended draft notice of appeal seeking to raise a further new ground not argued at first instance. It related to the contended application of s 24IB(b) and s 24ID(1) of the NTA. Understandably, the Wirangu respondent was not in a position to make submissions on the question of leave, nor about the substance of the ground. Having otherwise taken no active part in the appeal, the State sought leave to make submissions on this new ground, which leave was granted. Following the hearing, the Court made orders that the Council file and serve an interlocutory application for leave to further amend its draft notice of appeal to raise the new ground and supporting affidavit. Each party was given the opportunity to make written submissions.
191 The Council accordingly filed the interlocutory application on 6 September 2021, accompanied by the affidavit of Ceilia Divakaran, sworn on the same date, on which it seeks to rely.
Leave to raise the new ground
192 The parties were generally in agreement as to the applicable principles. The Court has discretion to grant leave where the party seeking to raise the new ground has demonstrated that there are “exceptional” circumstances, such that it would be expedient and in the interests of justice to do so: Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 at [10] and Canale v GW and R Mould Pty Ltd [2018] VSCA 346 at [47], cited in Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432 at [448]; Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [93]; University of Wollongong v Metwally (No 2) [1985] HCA 28; 158 CLR 447; Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7-8.
193 The Council submited that there are four reasons why the new ground is raised in “the most exceptional circumstances” such that even at this late stage leave to raise the ground should be granted. They are that:
(a) the ground is confined to the proper application of the NTA to the facts found by the trial judge, together with the Lease within the fresh evidence sought to be adduced, and would not generate any factual controversy;
(b) the point could not have been met by calling evidence below;
(c) there is no injustice to the other parties in granting leave because the ground is the “logical next step of consideration if one accepts there was no ‘grant’ in 1994” and it is more convenient to hear and dispose of the argument in this action than for it to be raised before the trial judge after completion of the Full Court proceedings, which could occur given the Separate Question is an interlocutory matter; and
(d) the delay in raising the ground was inadvertent and the result of the “evolving” case at trial.
194 The Wirangu respondent and the State contended that leave should not be granted to raise the new ground because:
(a) there was no explanation for the failure to run the argument at trial, given it was always the appellant’s case that a lease or agreement to lease had existed prior to 23 December 1996 and the 14 September 1994 letter on which the Council relies as written evidence of the offer for the purposes of s 24IB was tendered at trial;
(b) if this ground were to be raised for the first time on appeal, the time to do so was in the draft notice of appeal dated 15 January 2021, not in March 2021 as the Council contends. This further delay weighs against a grant of leave;
(c) it is not in the interests of justice to grant leave because the proposed ground is not sufficiently meritorious (as addressed below); and
(d) in addition, the Wirangu respondent submitted that the Council had not established that this ground could not have been met by calling evidence at trial. The Wirangu respondent submitted that it is “central” to the proposed new ground that the lease executed in 1997 now sought to be adduced is identical to the lease attached to the letter of 14 September 1994 sent to the Club. The Wirangu respondent submitted it is prejudiced by being denied the opportunity to lead evidence or cross-examine the Council’s witnesses on that issue. The State did not support this submission.
Conclusion on leave
195 Leave should be refused to the Council to raise this new ground. The circumstances in which it came to be raised demonstrate nothing more than a last minute idea by counsel, despite counsel having conducted the trial on behalf of the Council before the primary judge. As the Wirangu respondent submits, the question of which future act provisions were applicable was a live question at trial, and the State submitted to the primary judge that s 24JA was the applicable provision (Reasons at [34]). Inadvertence, even if in favour of the Council that is accepted to be the correct description of what occurred, cannot be an acceptable explanation for the failure at trial to nominate, and develop by evidence and argument, an entirely different future act provision.
196 Inadvertence as an explanation is also difficult to accept in circumstances where, after the appeal was lodged, the matter was referred to further mediation. The Council’s position on this appeal has been fully developed and considered.
197 The in terrorem submission that the Council could in any event re-agiatate the matter before the primary judge was inappropriate and should be rejected as a basis for granting leave. The Council has had ample opportunity to raise all matters it has sought to raise in order to advance its extinguishment contentions. After an exceptionally long period of time, close to consent determination, the Wirangu People, the State and the other respondents to the proceeding are entitled to finality. The Council has already sought indulgences to raise new grounds not relied on at trial, and new evidence. It was afforded a full opportunity to advance its arguments during the appeal process. Like any other party, it has duties to the Court and to the other parties to conduct itself in a reasonable and efficient manner. Advancing this ground in the way it has is not consistent with those duties.
198 If the argument had substantial merit, perhaps those matters would be outweighed. As it is, the argument has insufficient merit to warrant a grant of leave.
Proposed ground 23 has insufficient merit
199 Section 24IB(b) of the NTA provides that a “pre-existing right-based act” includes an act that takes place:
(b) in good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made.
200 The Council submitted that s 24IB and s 24ID in their present form apply to acts done in April 1997, such as the execution of the Lease, by virtue of the transitional provisions of the 1998 amendments: Native Title Amendment Act 1998 (Cth) Sch 5, cl 3. This can be accepted and the other parties did not dispute it.
201 We accept the submissions of the State and the Wirangu respondent that the requirements in s 24IB(b) are not met.
202 The Wirangu respondent and the State both submitted that there is insufficient evidence of the first requirement of s 24ID(b), that there be an offer made in good faith before 23 December 1996. We accept that submission. The Court is asked to infer that the 14 September 1994 letter enclosed a lease in identical terms to that executed on 11 April 1997. The Council’s submission that the primary judge “appears to have accepted that the 1994 Lease was sent to the Club in September 1994, and was not amended prior to its execution” is not correct. Rather, her Honour merely noted Mr Lane’s evidence that he could not recall any amendments to the proposed lease, and made no final finding. This is but one example of how the course of the trial might have been different if this argument were raised at trial. Thus, neither the evidence, nor the primary judge’s findings disclose the terms of any “offer” on or before 23 December 1996 to lease land to the Club.
203 There is no “written evidence” of the terms of the offer, created at or about the time when the offer or commitment was made. The agreement enclosed with the 14 September 1994 letter cannot be produced. Without further probative evidence (noting the absence of any recollection by Mr Lane), the statutory requirement for written evidence “at or about the time when the offer or commitment was made” cannot be met by an inference that the agreement was the same as the document executed some two-and-a-half years later. Likewise, this absence of probative evidence precludes a conclusion that the lease executed in 1997 “gave effect to, or was otherwise because of” the earlier offer.
204 The authorities to which the Council refers do not assist it. It can be accepted that the phrase “offer, commitment, arrangement or undertaking” should be read broadly: Daniel on behalf of Ngarluma People v Western Australia [2004] FCA 1388; 212 ALR 51 at [58]. The difficulty here is not with the breadth of the phrase but with proof of what the arrangement was at the time it is asserted to have been made, compared to the lease as executed.
205 Further, even if this aspect of s 24IB could be overcome by the Council, and the lease as executed is inferred to have been the lease as proposed in 1994, we accept the submissions of the State that the Lease does not confer exclusive possession, being the right of the holder to use the land as she or her sees fit, and to exclude anyone and everyone from accessing the land for any reason or for no reason: Western Australia v Brown [2014] HCA 8; 253 CLR 507; at [36] and [46]-[52].
206 We accept that the question of whether a lease confers exclusive possession
requires an objective inquiry having regard to (a) the terms of the lease, and its nature and purpose; (b) the nature of the land and the manner in which it is commonly used or enjoyed; (c) in the case of a statutory lease, the context and purpose of the statute.
(Footnotes omitted.)
207 See generally Living and Leisure Australia Ltd v Commissioner of State Revenue [2018] VSCA 237; 108 ATR 736 at [20]-[21], [146] and [149] and Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169 at [50].
208 Applying that inquiry to the circumstances, we accept the State’s submission in principle that a grant of an interest of the kind required to run a regional public golf course does not necessarily involve the grant of a right of exclusive possession to a club. Further, and critically, it did not involve a grant of exclusive possession on the terms of the 1997 lease as executed. Use of the land at Streaky Bay as a public regional golf course, as the State submitted, is compatible with many other uses by members of the community, such as a pedestrian thoroughfare, a place to walk dogs and a place to enjoy the outdoors for general recreation. The golf course primarily consisted of open spaces which, other than the club rooms, were accessible to the public. As the State submitted, the level of complementary usage was revealed in the evidence by the fact that for many years fairways passed over a road with players driving balls over passing traffic. The evidence also showed that the golf course has been accessible to the public for decades, and as a practical matter “it would be difficult for a pedestrian to walk from the north to south side of the town without passing through the golf course or taking an inconvenient detour around it” (Reasons at [55]).
209 The evidence amply demonstrated the golf club would not be able to exclude members of the public for any reason or no reason. Such a proposition would be, as the State submitted “unthinkable”, with the move from a bare licence to a lease for nothing more than peripheral occupier’s liability insurance purposes, in a small town like Streaky Bay where the golf course occupied so much of the town itself. An objective inquiry on the evidence about the continuing use of the golf course by townspeople suggests otherwise. Evidence about the narrower use of small parts of the course, such as the clubhouse, does not alter this fact in respect of the whole golf course. In other areas of its arguments, the Council sought to stress the need to examine the golf course as a whole. That is important in assessing this exclusive possession assertion.
210 At [33]-[38] of its written submissions, the State made the following points about the terms of the lease, which we accept:
The lease contained a series of restrictions on how the lessee could use the land. The lessee was permitted to use the leased land solely for sporting and recreational purposes. The lease contained restrictions on the sale of alcohol on the land without the prior consent of the lessor, and the lessor retained ultimate control as to the terms and conditions upon which the premises could be hired to third parties by the lessee. The lessee was not permitted to construct any fixtures, including fences, on the premises without the consent of the lessor. The lessor retained extensive rights to enter the lease area and do works “for any existing or future service to the lessor of tenants, ratepayers or electors of the lessor”.
The lessee was required to “at all times during ordinary playing hours keep or cause to be kept open the said premises and admit the public to such parts thereof as shall be set apart for spectators or for the use of the public”. In the context of an open site with longstanding public access, it can be inferred that the parties assumed that public access would as a matter of practical necessity also be maintained outside of “ordinary playing hours”.
If the reference to “parts … set apart for spectators or for the use of the public” implies that there were portions of the site from which spectators or members of the public could be excluded, that also needs to be understood in the context of a large open site with longstanding public access where the enclosed club rooms occupied only a very small portion of the site and no other building or fixture could be constructed without the lessor’s written consent. That is to say, any exclusion of the public from the site was the exception to a general rule authorising public access. That is fundamentally different to Living and Leisure where the ski lift operators could position buildings, equipment, services and facilities anywhere on the demised land and thereby cause public access to any area to be effectively lost.
The lessor also, without interference from the lessee, could control and direct all motor and other vehicles entering or leaving the premises at any time, and could set apart any part of the premises as a car park.
In terms of statutory context, the subject land was Crown land dedicated as “parklands” under s 5 of Crown Lands Act 1929 and placed under the care, control and management of the appellant. Section s 457(1) of the Local Government Act 1934 conferred power to grant a lease of any portion of the parklands “to be used for the purpose of sports, games, agricultural shows or public recreations or any community facilities”. That is the source of power for the 1997 lease.
There is nothing in s 457, or its statutory context to suggest that such a lease would necessarily confer rights of exclusive possession. To the contrary, the Court should infer that the provision permits the conferral of rights in such a way as to facilitate the sort of complementary community and recreational uses of park lands that are commonplace across regional Australia.
211 Rather, even if contrary to our opinion it could otherwise satisfy s 24IB(b), all the Council received was a non-exclusive right to use the land for golf and recreational purposes. If contrary to our opinion, s 24IB applies, the non-extinguishment principle applies to the act (s 24ID(1)(c)) and the native title holders are entitled to compensation (s 24ID (1)(d)).
Costs of the application to raise proposed ground 23
212 The Council accepted that if its leave application was not successful, an order for the costs of and incidental to the application should be made against the Council in favour of the Wirangu respondent and the State. That concession was appropriate and there should be an order for costs in that form. We accept the submissions of the Wirangu respondent that the Council’s conduct in raising this ground less than 24 hours before the hearing of a fully programmed appeal was unreasonable within the meaning of s 85A of the NTA, and it is appropriate a costs order be made notwithstanding the usual terms of s 85A.
Conclusion
213 The appeal must be dismissed.
I certify that the preceding two hundred and thirteen (213) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Mortimer, Perry and SC Derrington. |
Associate:
Annexure A
SAD 5 of 2021 | |
District Council of Streaky Bay | |
1. Caroline Wilson 2. Kenneth Wilson 3. Barry Dean Johncock Senior 4. Neville Miller 5. Vernon Miller 6. Cindy Morrison 7. Elizabeth Pool 8. State of South Australia 9. Commonwealth of Australia |
