FEDERAL COURT OF AUSTRALIA

Bodney v State of Western Australia [2001] FCA 323

NATIVE TITLE – motion for strike out of part of application for determination of native title – declaration made of proper construction of application in relation to areas excluded from application – whether lease a “community purpose lease” under s 249A of the Native Title Act 1993 (Cth) and thus a “previous exclusive possession act” attributable to the State for the purposes of ss 23B(2) and 23E of the Act.

Native Title Act 1993 (Cth) ss 23B(2); 23E; 84C(1); 249A

Titles Validation Amendment Act 1999 (WA) s 12I

Federal Court Rules O20 r2(1)

CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS v STATE OF WESTERN AUSTRALIA AND ORS

WAG 149 OF 1998

JUDGE:          BEAUMONT J

DATE:            29 MARCH 2001

PLACE:          SYDNEY

ORDERS

THE COURT ORDERS:

1.                  Declare that Swan Locations 2885 and 11627, being land the subject of Crown Lease 1455/1921 granted to the University of Western Australia for a term of 999 years from 1 July 1919, are excluded from the applicant’s amended application for determination of native title.

2.                  Reserve liberty to the University of Western Australia to apply for further relief, if so advised.

3.                  Costs reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

(ON NOTICE OF MOTION BY UNIVERSITY OF WESTERN AUSTRALIA TO STRIKE OUT PART OF APPLICATION FOR DETERMINATION OF NATIVE TITLE)

BEAUMONT J:

INTRODUCTION

1                     The applicant, Mr Bodney, claims in this proceeding (on behalf of a native title claim group) a determination of native title in respect of a large area of land and waters in and around the Perth metropolitan area.  The claim is made by an amended application filed on 20 February 1999.  The respondents to the application include the University of Western Australia (“UWA”), a body established and incorporated by the University of Western Australia Act 1911.

2                     Before me is a Notice of Motion, dated 30 December 2000, by which UWA gave notice of its intention to move the Court for the following orders:

“1.       That pursuant to section 84C of the Native Title Act 1995 (Cth) the applicant’s claim be struck out.

2.                  That pursuant to Order 20 rule 2 of the Federal Court Rules, the applicant’s claim be struck out in respect of Swan Location 2885 and 11627, land which is the subject of a community purpose lease granted to the University of Western Australia.”

3                     Section 84C(1) of the Native Title Act 1993 (“the NT Act”) provides relevantly that, if an application for the determination of native title does not comply with s 61 of the NT Act (which deals with the basic requirements for applications), a party to the proceedings may at any time apply to the Court to strike out the application.

4                     Order 20 r 2(1) relevantly provides that, where in any proceeding it appears to the Court that in relation to the proceeding generally, or in relation to any claim for relief, no reasonable cause of action is disclosed, the Court may order that the proceeding be stayed or dismissed, generally or in relation to any claim for relief.

THE AMENDED APPLICATION

5                     The amended application, which identifies the external boundaries of the claim by reference to a description on an attached map and a physical description, states that certain areas within those boundaries are excluded.  The excluded areas include areas described as follows:

“… any areas to which a previous exclusi[ve] possession act as defined in [s]23B of the [NTA] … was done … [which] was attributable to the State of Western Australia and a law of that State has made provision for that act as described in [s]23E of the [NTA].”

6                     Section 23B(2) of the NTA defines a “previous exclusive possession act”, relevantly, as an act which took place on or before 23 December 1996, and consists of the grant of (among other things) (s 23B(2)(c)(vi)), a “community purpose lease (see section 249A)”.

7                     Section 249A(a) defines such a lease so as to include (among other leases) a lease that permits the lessee to use the land covered by the lease solely or primarily for the several purposes there specified, including educational purposes.

THE COMMUNITY PURPOSE LEASE

8                     The UWA is the holder of Crown Lease 1455/1921, in respect of an area known and described as Swan Location 2885 and 11627, which was granted to it in 1919 by the State of Western Australia for a period of 999 years from 1 July 1919 (“the Lease”).  The purpose of the Lease was there expressed to be the use of a site for the main buildings of UWA and for no other purpose.  This purpose was, plainly, educational.  It follows, in my opinion, that the Lease was a community purpose lease within the meaning of s 23B(2)(c)(vi).

CONCLUSION ON UWA’S MOTION

9                     As contemplated by s 23E of the NTA, by s 12I of the Titles Validation Amendment Act 1999 (as amended) (WA) where a relevant act (being “a previous exclusive possession act” under (amongst other provisions) s 23B(2)(c)(vi) of the NTA) is (as here) attributable to the State, the act (being the grant of the Lease) extinguishes any native title in relation to the area in question.

10                  It follows, in my opinion, that upon the true construction of the amended application, the area the subject of the Lease has been excluded from the claim.  I propose to make a declaration accordingly.

11                  It seems that no further relief is necessary at this stage.  However, I will reserve liberty to the UWA to apply in this connection.

12                  The UWA advanced an alternate argument, in the event that the community purpose lease is held not to have extinguished any native title to the area.  The argument was that certain grants of title in freehold over the subject area, prior to the grant of the Lease, extinguished any native title.  Given the conclusion that I have reached on the true construction of the amended application, it is not now necessary to deal with this argument.

ORDERS

13                  I make the following orders:

1.                  Declare that Swan Locations 2885 and 11627, being land the subject of Crown Lease 1455/1921 granted to the University of Western Australia for a term of 999 years from 1 July 1919, are excluded from the applicant’s amended application for determination of native title.

2.                  Reserve liberty to the University of Western Australia to apply for further relief, if so advised.

3.                  Costs reserved.

Associate:

Dated:                     29 March 2001