FEDERAL COURT OF AUSTRALIA

Daniel v State of Western Australia [2004] FCA 1388

NATIVE TITLE – extinguishment – issues arising upon grant of leave to reopen – whether dedication of roads had extinguishing effect – whether grant of accommodation lease a past act or a future act – whether act of grant in exercise of legally enforceable right – whether act of grant giving effect to offer, commitment, arrangement or undertaking – whether failure to notify affects validity of future act

Native Title Act 1993 (Cth) ss 24AA, 24HA, 24NA, 24IB, 24ID, 24OA, 228, 229, 233, 242, 246, 247, 248, 249

Racial Discrimination Act 1975 (Cth) s 10

Trade Practices Act 1974 (Cth) s 45

Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth)

North West Gas Development (Woodside) Agreement Act 1979 (WA) ss 2, 7, 8, 9

Roads Act 1888 (WA) ss 53, 57, 58

Road Districts Act 1919 (WA) s 5, 160

Land Administration Act 1997 (WA) s 79

Local Government Act 1960 (WA) ss 286, 294A

The Macquarie Dictionary, 2^nd edn, 1991

Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 considered

Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (1999) 92 FCR 375 considered

Daniel v State of Western Australia (2004) 208 ALR 51 cited

Daniel v Western Australia [2003] FCA 666 cited

Harris v Great Barrier Reef Marine Park Authority (2000) 98 FCR 60 cited

Himbleton Pty Ltd v Kumagai (NSW) Pty Ltd (1991) 29 NSWLR 44 cited

Lardil Peoples v Queensland (1995) 95 FCR 14 cited

Lardil Peoples v Queensland (2001) 108 FCR 453 cited

Meehan v Jones (1982) 149 CLR 571 cited

Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 26 ALR 609 considered

Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 5 FCR 140 considered

DANIEL & OTHERS ON BEHALF OF THE NGARLUMA PEOPLE & MONADEE & OTHERS ON BEHALF OF THE YINDJIBARNDI PEOPLE and HOLBOROW (NEE COSMOS) & OTHERS ON BEHALF OF THE YABURARA & MARDUDHUNERA PEOPLE and DALE & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS

WAG 6017 of 1996

and part of WAG 127 of 1997

and part of WAG 6256 of 1998

RD NICHOLSON J

29 OCTOBER 2004

PERTH

REASONS FOR JUDGMENT

1                     In reasons delivered on 2 July 2004 (Daniel v State of Western Australia (2004) 208 ALR 51 at 65 – 66, at [66] – [69]) leave was granted to reopen the issue of whether native title had been extinguished in additional areas referred to in the first respondents’ proposed supplementary determinations and the affidavits of Mr Godden.  Pursuant to directions subsequently made, an opportunity was given to the first and eleventh respondents and the first applicants to make written submissions on that outstanding issue.  These reasons address the matters raised in those written submissions.

2                     The leave to reopen permitted the first respondents to submit that native title has been extinguished by the following acts:

(a)                taking order made on 20 November 2001:  see affidavit of Mr Godden sworn on 16 March 2004, par 3;

(b)               taking order made on 5 January 2004:  see affidavit of Mr Godden sworn 16 March 2004, par 4;

(c)                freehold title 1397 folio 994:  see affidavit of Mr Godden sworn 16 March 2004, par 7(a);

(d)               freehold title 1751 folio 134:  see affidavit of Mr Godden sworn 16 March 2004, par 7(b);

(e)                section of road number 390:  see affidavit of Mr Godden sworn 16 March 2004, par 10(a);

(f)                 three sections of Point Samson-Roebourne Road:  see affidavit of Mr Godden sworn 16 March 2004, par 10(b);

(g)                road shown on Deposited Plan 217003:  see affidavit of Mr Godden sworn 16 March 2004, par 10(c); and

(h)                lease 188601:  see affidavit of Mr Godden sworn 23 April 2004 containing supplementary land tenure.

3                     It is apparent from the written submissions that there is no dispute that native title has been extinguished by the interests referred to in pars (a) – (d) above.  The draft determination should therefore provide for extinguishment in those respects. 

4                     There remain the issues concerning roads raised in pars (e) – (g) and the lease referred to in par (h) (‘the accommodation lease’). 

Roads

5                     The first respondents claim that the creation and dedication of each of the roads referred to in pars (e) – (g) above wholly extinguished any native title rights and interests:  Daniel v Western Australia [2003] FCA 666 at [640] – [643]. 

6                     The first applicants submit that the affidavit of Mr Godden sworn on 16 March 2004 makes reference to the roads but does not annex or exhibit the relevant documents to show that the roads have been validly dedicated.  Additionally it is submitted that par 10 of that affidavit is inadmissible secondary evidence.  Therefore, it is said, there is no evidence or no satisfactory evidence before the Court upon which it could find that the roads exist or have been properly dedicated or extinguish native title. 

7                     By way of reply the first respondents accept they bear the evidentiary burden of adducing sufficient evidence to raise the issue of extinguishment for determination.  However they say the first applicants then bear the onus of proving native title has not been extinguished:  Daniel v Western Australia [2003] FCA 666 at [146] – [148].  The first respondents rely on the evidence of the dedication of the roads as stated in par 10 of Mr Godden’s above affidavit and say that such evidence is sufficient, along with the presumption of regularity, to constitute proof of such dedication.  Additionally, the first respondents rely on the copies of the Government Gazette, cancelled public plans and a deposited plan referred to in Mr Godden’s affidavit as those are contained in the affidavit of Mr Rowe sworn on 16 August 2004. 

8                     In connection with par (e) and the reference to section of road 390, the first respondents rely on s 57 and s 58 of the Roads Act 1888 (WA).  In connection with par (f) and sections of the Port Samson-Roebourne road (No 3705), the first respondents rely on s 5 of the Road Districts Act 1919 (WA).  In connection with par (g) and the road on deposited plan 217003, the first respondents rely upon s 294A of the Local Government Act 1960 (WA).  In the case of the Roads Act 1888 (WA) and the Local Government Act 1960 (WA), s 53(2) and s 286 respectively vest all roads in the Crown.  In the case of the Road Districts Act 1919 (WA), s 160 vests all roads in the relevant roads board.  It is said that consistently with Daniel v Western Australia [2003] FCA 666 at [642] – [643] the dedication of these roads has extinguished native title. 

9                     I consider the submissions for the first respondents on this issue correctly state the law.  The affidavit of Mr Rowe cures any objections to the affidavit of Mr Godden.  I therefore find the dedication of the roads in pars (e) – (g) wholly extinguished any native title rights and interests.

accommodation lease

evidence

10                  The first respondents support their contentions concerning the lease by reference to the affidavit of Mr Kenneth John Weston sworn on 21 July 2004. 

11                  The submissions on this issue for the eleventh respondents is supported by an affidavit of Mr Keith David Jones, Senior Advisor, Community, North West Shelf Venture Corporate Affairs for Woodside Energy Limited. 

12                  The submissions for the first applicants are supported by the affidavit of Mr Adrian John Murphy, Negotiations Manager of the Pilbara Native Title Service. 

agreement act

13                  The affidavit of Mr Weston exhibits a copy of the North West Gas Development (Woodside) Agreement Act 1979 (WA) (‘the Agreement Act’) and amendments dated 3 July 1985, 23 November 1994 and 29 May 1996, which are Schedules to the Agreement Act.  Also annexed are copies of further amendments to the Agreement Act dated 15 September 1982 and 30 May 2002. 

14                  The long title of the Agreement Act describes it as an Act to ratify an agreement between the State of Western Australia and Woodside Petroleum Development Pty Ltd, Woodside Oil Ltd, Mid-Eastern Oil Ltd, North West Shelf Development Pty Ltd, BP Petroleum Development Australia Proprietary Limited and California Asiatic Oil Co (‘the Joint Venturers’) relating to the production of natural gas and condensate, and the establishment of a treatment and liquefaction plant and to matters related thereto (‘the Agreement’).  The Agreement Act ratifies the Agreement set out in the Schedule to the Agreement Act and authorises the implementation of the Agreement.  It also ratifies and similarly authorises the three supplementary agreements. 

15                  The Agreement as first ratified is dated 27 November 1979.  It recites that the Joint Venturers, pursuant to the Petroleum (Submerged Lands) Act 1967 (Cth) and the Petroleum (Submerged Lands) Act 1967 (WA), are the holders of permits and have applied for production licences in respect of areas in the offshore Dampier region.  It states that they are examining the feasibility of developing gas fields in the offshore Dampier region.  Additionally it states that the Joint Venturers have, pursuant to a memorandum of understanding dated 11 November 1977 with the State Energy Commission of Western Australia, reached a basic agreement relating to the onshore use by the Joint Venturers and the Commission of up to 10.5 million cubic metres per day of treated natural gas over a
20-year term.  It states that the understanding will be incorporated into a formal gas sales agreement between the Commission and the each joint venturer in proportion to its equity in the project.  Further, it recites approval by the Commonwealth for the sale by the Joint Venturers to customers overseas of up to 6.5 million tonnes per annum of liquefied natural gas over a term of not less than 20 years.  In addition, it is said that the Joint Venturers are proceeding with related studies including offshore production, onshore treatment, the sale of condensate, the sale of liquefied natural gas overseas, the sale of treated natural gas within Australia and the pipeline transportation of such gas to industrial customers in the Pilbara.  It is then recited that ‘the State desires to facilitate the proposed development referred to in these recitals’. 

16                  By cl 7 of the Agreement, it is provided that if the Joint Venturers notify the responsible Minister of their intention to proceed with the overall project they shall within 6 months of the date of such notice and subject to the provisions of the Agreement, submit to the Minister their proposals including plans and specifications, the location, area, lay-out, design, quantities, materials, time program and phasing for the provision of a number of matters relating to the overall project including ‘(e) housing and township requirements including social and engineering services’ and ‘(i) any other works, services or facilities desired by the Joint Venturers’. 

17                  Clause 8 then provides:

‘8.        (1)        On receipt of the said proposals the Minister shall –

(a)               approve of the said proposals either wholly or in part without qualification or reservation; or

(b)               defer consideration of or decision upon the same until such time as the Joint Venturers submit a further proposal or proposals in respect of some other of the matters mentioned in subclause (1) of Clause 7 not covered by the said proposals; or

(c)               require as a condition precedent to the giving of his approval to the said proposal that the Joint Venturers make such alteration thereto or comply with such conditions in respect thereto as he (having regard to the circumstances including the overall development of and the use by others as well as the Joint Venturers of all or any of the facilities proposed to be provided) thinks reasonable and in such a case the Minister shall disclose his reasons for such alterations or conditions.

(2)        The Minister shall within two months after receipt of, the said proposals give notice to the Joint Venturers of his decision in respect to the same.

(3)        If the decision of the Minister is as mentioned in either of paragraphs (b) or (c) of subclause (1) of this Clause the Minister shall afford the Joint Venturers full opportunity to consult with him and should they so desire to submit new or revised proposals either generally or in respect to some particular matter.

(4)        If the decision of the Minister is as mentioned in either of paragraphs (b) or (c) of subclause (1) of this Clause and the Joint Venturers consider that the decision is unreasonable the Joint Venturers within 2 months after receipt of the notice mentioned in subclause (2) of this Clause may elect to refer to arbitration in the manner hereinafter provided the question of the reasonableness of the decision.

(5)        An award made on an arbitration pursuant to subclause (4) of this Clause shall have force and effect as follows-

(a)              if by the award the dispute is decided against the Joint Venturers then unless the Joint Venturers within 3 months after delivery of the award give notice to the Minister of their acceptance of the award this Agreement shall on the expiration of that period of 3 months cease and determine; or

(b)              if by the award the dispute is decided in favour of, the Joint Venturers the decision shall take effect as a notice by the Minister that he is so satisfied with and approves the matter or matters the subject of the arbitration.

(6)        (a)        If prior to approving all or any of the Joint Venturers’         proposals submitted pursuant to Clause 7, any application to the Australian Loan Council for special             borrowings required in connection with any such      proposal has not been approved, the Minister shall so advise the Joint Venturers.

            (b)        The Joint Venturers shall within 2 months of the receipt       of the advice referred to in paragraph (a) of this    subclause, submit to the Minister a new or revised             proposal (either generally or in respect to some        particular subject matter) which is not subject to either             specialborrowings or, unless the Minister consents, the   provision of finance by the State or a statutory authority     thereof or a local authority and the other provisions of             this Clause shall subject to this subclause apply to any            such proposals.

(7)        Notwithstanding that under subclause (1) of this Clause any proposals of the Joint Venturers are approved of by the Minister or determined by arbitration award, unless each and every proposal under this Clause are so approved or determined within 15 months of the date of the notice referred to in Clause (6) or within such extended period if any as the Joint Venturers shall be granted pursuant to the provisions of this Agreement then the Minister may give to the Joint Venturers 12 months notice of intention to determine this Agreement and unless before the expiration of the said 12 months period all the proposals are so approved or determined this Agreement shall cease and determine.’

18                  Additionally it is provided in cl 9:

‘9.        If the Joint Venturers at any time during the continuance of this Agreement desire to modify expand or otherwise vary their activities substantially from those specified in any approved proposals they shall give notice of such desire to the Minister and within 2 months thereafter shall submit to the Minister proposals in respect of all matters covered by such notice and such of the other matters mentioned in paragraphs (a) to (i) of subclause (1) of Clause 7 and other relevant information as the Minister may require.  The provisions of Clause 7 and Clause 8 (other than subclauses (5) and (7) where applicable) shall mutatis mutandis apply to proposals submitted pursuant to this subclause.’

19                  It is further provided in subcl 19(1):

‘19.      (1)       The State shall in accordance with the Joint Venturers’        approved proposals grant to the Joint Venturers or arrange to have    the appropriate authority or other interested             instrumentality of the State grant for such periods and on such       terms and conditions       (including renewal rights) as shall be             reasonable having regard to the             requirements of the Joint        Venturers, leases and where applicable licences easements and            rights of way for any purposes related to the Joint Venturers’             operations under this Agreement.’

20                  None of the supplementary agreements affect the above provisions in any material respect save that in cl 19(1) the reference to ‘grant to the Joint Venturers’ is substituted by the words ‘grant to the Dom Gas Joint Venturers or the LNG Joint Venturers or both of them as the case may require’. 

proposal

21                  On 21 September 2000 the Manager, External Affairs of Woodside Energy Ltd, forwarded to the State Minister for Resources Development what was described as ‘additional proposal for housing and accommodation’.  It was submitted in reliance on cl 9 of the Agreement. 

22                  The proposal summarised the intended modification of the currently approved proposal as being ‘construction of an Accommodation Village facility at Rankin Road, Karratha (Karratha Lot 3799) to provide accommodation for the expansion construction workforce of Woodside (Operator) and Managing Contractor’.  It was said the purpose of the additional proposal was to apply for the allocation by the State to the Joint Venturers of land for temporary workforce accommodation.  It was also said that the ongoing right of the Joint Venturers to this land was to be conditional on their decision to proceed with the project. 

23                  Under the heading ‘property matters’ it was proposed that Karratha Lot 3799 be leased to the Joint Venturers under a lease instrument from the Department of Land Administration.  This was to include an initial term of five years with the option to renew, if required, for a further five years at the end of the initial term.  Rental was to be imposed in accordance with the Agreement Act. 

approval

24                  By undated letter, but signed on 8 November 2000, the Minister advised in accordance with cl 8 of the Agreement that he approved the proposal.  He described it in the following terms:

‘I note that the proposal relates to the allocation, by the State, of land (Karratha Lot 3799 at Rankin Road, Karratha) for the construction of an Accommodation Village.  The land is to be made available on a lease basis for an initial term of 5 years with the option to renew, if required, for a further five years at the end of the initial term.  The Accommodation Village will provide temporary housing for workers involved in the LNG Train 4 Expansion Project (the Project) for which further Additional Proposals will be submitted.  The ongoing right of NWSV to this land is made conditional on a decision to proceed with the Project and such decision is targeted for early 2001.’

In addition he noted that Karratha Lot 3799 (Rankin Road) was clear for disposal and that the Department of Land Administration was preparing lease documents in accordance with their arrangements under the Agreement. 

grant of ACCOMMODATION LEASE

25                  The lease was granted on 23 April 2002.  It was for a term of 5 years commencing on 31 January 2001.  Subject to the Agreement, the lease was granted pursuant to s 79 of the Land Administration Act 1997 (WA) in accordance with the Approved Proposals for the Permitted Use.  The lessor entered into covenants of quiet engagement and non-derogation.

outline of submissions for parties for extinguishment

26                  The effect of the grant of the accommodation lease being to grant exclusive possession of the leased area to the lessee, the accommodation lease would have the effect of extinguishing any native title on the land.  However, apart from the NT Act the grant of the lease would have been invalid by operation of s 10 of the Racial Discrimination Act 1975 (Cth) because of its extinguishing effect.  The first respondents contend the NT Act provisions relating to past acts or, failing their application, future acts apply to cure that position.

27                  The case made by the first respondents is that the grant of the accommodation lease is a ‘category A past act’ for two reasons.  The first is that the lease is a ‘past act’ pursuant to s 228(3) of the Native Title Act 1993 (Cth) (‘the NT Act’).  The second is that it is a ‘commercial lease’ as defined in s 246 of the NT Act and it is made a category A past act by s 229(3).  Alternatively, it is argued, that if such is not the case then the grant of the lease would be a future act to which s 24IB would apply so that the result would be the same. 

28                  There is no dispute that if s 228(3) did not apply the grant of the lease would not be a ‘past act’ as it was granted on 23 April 2002, being after 1 January 1994, so that the time of its grant would take it out of the definition of ‘past act’ in s 228. 

29                  There is also no dispute that if the grant of an accommodation lease was not a past act it would be a future act. 

30                  The eleventh respondents make submissions to the same effect and supplements those submissions with additional arguments which are addressed below. 

31                  The first applicants contend that neither s 228(3) nor s 24IB of the NT Act apply with the consequence that the accommodation lease did not have any extinguishing effect.  They then raise the alternative basis of invalidity only to the extent the lease affects native title:  s 24AA(2) and s 24OA of the NT Act.

Relevant NT ACt provisions

32                  A category A past act is relevantly defined for present purposes by the provisions of s 229(3)(a) and s 229(3)(c)(ii) which read:

‘(3)      A past act consisting of the grant of:

            (a)        a commercial lease, …

is a category A past act if:

            (c)        either:

                        (i)         …

(ii)        the grant was made on or after 1 January 1994 and it is a past act because subsection 228(3) or (9) applies; and

            (d)        the grant is not:

(i)         a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity; or

(ii)        a grant made by or under legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(iii)       a grant of a prescribed kind to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(iv)       a grant over land or waters that, on 1 January 1994, are Aboriginal/Torres Strait Islander land or waters.’

33                  Section 228(3) reads:

(3)       Subject to subsection (10), an act that takes place on or after 1 January 1994 is a past act if:

(a)               it would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

(b)               it takes place:

(i)         in exercise of a legally enforceable right created by the making, amendment or repeal of legislation before 1 July 1993 or by any other act done before 1 January 1994; or

(ii)                in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith before 1 July 1993, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made; and

(c)               the act is not the making, amendment or repeal of legislation.’

34                  Section 228(9) reads:

‘(9)      Subject to subsection (10), an act (the later act) that takes place on or after 1 January 1994 is a past act if:

(a)              the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

(b)              an act (the earlier act) that is a past act because of any subsection of this section took place before the later act; and

(c)               the earlier act contained or conferred a reservation, condition, permission or authority under which the whole or part of the land or waters to which the earlier act related was to be used at a later time for a particular purpose (for example, a reservation for forestry purposes); and

(d)              the later act is done in good faith under or in accordance with the reservation, condition, permission or authority (for example, the issue in good faith of a licence to take timber under a reservation for forestry purposes); and

(e)               the later act is not the making, amendment or repeal of legislation.’

Section 228(10) has no relevant exclusionary effect here.

35                  The term ‘commercial lease’ is defined by s 246 to be a reference to ‘a lease (other than a mining lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for business or commercial purposes’.  It is not limited by the definitions of agricultural, pastoral or residential lease in ss 247, 248 and 249:  see s 246(1). 

36                  A lease is defined by s 242 to include a lease enforceable in equity; or a contract that contains a statement to the effect that it is a lease; or 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. 

37                  On the issue of future act reference will be made to s 24IB which reads:

‘A future act is a pre-existing right-based act if it takes place:

(a)               in exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid (including because of Division 2 or 2A); or

(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.’

whether grant of accommodation lease in exercise of a legally enforceable right

Requirements for interpretation of NT Act

38                  The first applicants submit that in construing the provisions of the NT Act it is essential to bear in mind that there is a detailed scheme that is required to be complied with in respect of future acts that affect the validity of native title.  It is said the principle of it is based on non-discrimination.  In this context it is submitted that the scheme relating to validating past acts is to be understood to grant security to people who obtain title in circumstances of discrimination but at a time where there was ignorance as to native title.  It is submitted that those ‘past act validation provisions’ are an exception to the rule to validate what would otherwise be invalid due to discrimination.  Such exceptions, it is suggested, should be read down and not be able to afford a loophole for avoiding the implications of the future act system for new leases granted after January 1994. 

39                  The first respondents say that s 228(3) is not a loophole and was drafted in full knowledge of native title.  It is contended there is no presumption that an act done after 1 January 1994 is a future act; rather the starting point is to determine whether an act is a past act and, only if that is not the case, is consideration to be given to the future act provisions of the NT Act:  see s 233(1)(b).  In the event that the act is a past act then compensation will be payable to the native title holders for the extinguishment of native title.  Additionally, the first respondents say that the scope for the State to act within s 228(3) is limited to those situations where legislation which existed prior to 1 July 1993 created the legally enforceable right. 

40                  I agree with the first respondents that the NT Act must be approached with regard to its terms.

Consistency with object and purpose of Agreement Act

41                  The first applicants submit that the purposes and objects of the Agreement Act are not defeated if their interpretation is found to be correct.  It is said that there are many other terms in the Agreement Act which give the Joint Venturers benefits in procedure and in other matters over and above standard legislation which assists the project.  The terms of the provisions and the extent of which particular rights may be legally enforceable must, it is said, depend on the terms of the Agreement Act itself, without any presumptions or readings of the legislation that favour the grantee.  The first respondents assert that the purposes and objects of the Agreement Act include the assurance that the State provides the land tenure and other requirements to enable the performance of the project the subject of the Agreement.  Therefore, such agreements are intended to bind the State to grant required tenures rather than to leave such grants to a Minister’s general discretion under the general legislation.  This is because of the very substantial capital costs at risk.  Consequently the Agreement Act should be understood as having given the Joint Venturers a legally enforceable right to the grant of a lease in exercise of which the lease under examination was granted. 

42                  I agree with the first applicants that the issues of interpretation must be approached without any presumptions favouring the grantee of the leasehold interest.  The primary focus must be on the provisions of the Agreement Act to which submissions direct attention.  Only where ambiguity is patent, will it be necessary to examine consistency with objects and purpose.

Creation of right

43                  The first respondents submit that the ‘legally enforceable right’ does not itself need to exist before 1 July 1993.  Rather, it merely has to owe its (later) existence to an earlier enactment.  However, the first applicants submit that such an interpretation would have the consequence that all kinds of legal enforceable rights could be claimed to be past acts as they owe their later existence to a pre-1993 enactment; for example, mining tenements.  Therefore the first applicants submit that the legally enforceable right must itself be created by the ‘pre‑1 July 1993’ legislation.  It is said to be not enough if the legislation sets out a mechanism under which legally enforceable rights can be obtained but they are not created until a later date.

44                  Again it is the terms of the NT Act in its relevant section which must determine this issue.  Section 228(3) draws a distinction between the ‘act’ which takes place on or after 1 January 1994 (which may become the past act if it satisfies the statutory criteria) and the ‘legally enforceable right’ in exercise of which the ‘act’ takes place.  The accommodation lease is not the ‘legally enforceable right;’ rather it is the ‘act’ resulting (if it does) from the ‘legally enforceable right’ created in accordance with the section.  It follows from the provisions of the section that it will be sufficient if the enactment sets out a mechanism providing a legally enforceable right which results in the application of the mechanism there provided on a later occasion to produce an act.

Nature of right created by agreement

45                  It is not in contest that the words ‘legally enforceable right’ in s 228(3)(b)(i) are not defined and have not been the subject of judicial consideration.  Further, it is not disputed that there would only be a legally enforceable right if the grantee could compel the State to grant the accommodation lease. 

46                  The first applicants say that to come within s 228(3)(b)(i), the legally enforceable right must be something that a grantee is entitled to and can enforce by legal proceedings without the further exercise of a discretion by the party granting the right.  It is submitted that it is not enough that the earlier legislation merely sets out a mechanism and criteria or conditions whereby such rights can be granted.  It is said that all the Agreement Act does is to permit the Joint Venturers to present a proposal to the Minister concerning leases as required from the State and that this is not a legally enforceable right.  It is submitted that while the Minister cannot simply reject the proposal out of hand, the width of discretion is such that the Minister may refuse to grant a lease except on very different terms and conditions.  It is contended that there is a wide discretion in the Minister to not grant the type of lease that the Joint Venturers desire or would find acceptable.  This is exemplified by the fact that the Minister’s decision can be referred to arbitration where the discretion is exercised against the applicant Joint Venturers:  cl 8(4) and cl 8(5).  Further there is a provision in cl 8(7) that if the proposals are not approved or determined within 15 months from the date of notice, the Minister can give 12 months notice to terminate the Agreement.  It is said all this is far from there being a legally enforceable right to the lease in question.

47                  The first respondents accept that there is no legally enforceable right if a grantor has a discretion not to grant a lease.  However, it is said, that the Agreement Act does not give the Joint Venturers a mere ability to apply for the lease and the State a discretion to refuse.  Rather, it is said, that the position of the Joint Venturers under the Agreement Act is fundamentally different.  In the first place it is said that cl 19(1) of the Agreement creates a legally enforceable obligation.  Second, it is said that proper reading of cl 8 shows that there is no discretion whether or not the lease is to be granted or when that is to be the case or as to the nature of the lease.  A discretion relates to conditions precedent and to terms and conditions of the lease, but even these, it is said, are confined by the Agreement Act and may ultimately be settled by arbitration.  It is said the proper reading of the provision shows that there is a legally enforceable right, provided that:

(a)                there is a means of resolving any disputes as to the conditions precedent and the terms and conditions of the lease:  see  Himbleton Pty Ltd v Kumagai (NSW) Pty Ltd (1991) 29 NSWLR 44 at 62 – 64; and

(b)               the grantee (and not the grantor) has the option whether or not to perform the conditions and therefore become entitled to the grant:  see Meehan v Jones (1982) 149 CLR 571 at 581 – 582.

48                  It necessary to go to the terms of the Agreement.  Clause 19(1) is expressed in mandatory terms.  It requires the State to grant leases in accordance with the Joint Venturers’ approved proposals.  It should be read with cl 8.  That also is expressed in mandatory terms, namely that the Minister shall approve of the said proposals either wholly or in part without qualification or reservation.  The Minister’s powers to intervene derives from his power to approve the proposals only in part; from his power to defer consideration until other submissions are received; and from his power to require conditions precedent:  cl 8(1)(a), (b) and (c).  If the Minister’s decision is considered by the Joint Venturers to be unreasonable, they may elect to refer the decision to arbitration:  cl 8(4).  Clause 8 applies to proposals to modify, expand or vary activities substantially as a consequence of the application of cl 9.  Clause 9 excludes cl 8(5) and cl 8(7) from application to proposals for approval, so that those subclauses cannot be taken into account in determining the width of the Minister’s discretion.  It is not the case that the Minister may refuse a proposal or only grant it on very different terms and conditions.

49                  So understood, the provisions of the Agreement gives rise to a legally enforceable right to be understood as submitted for the first respondents.  I do not accept the submissions for the first applicants that the area for operation of the discretion of the Minister is so great as to negate the legally enforceable character of the mandatory provisions concerning approvals of proposals.

Due notice of proposals

50                  The first applicants say there is no evidence that the proposals were duly given within two months of ‘a notice of a desire to modify, expand or otherwise vary their activities substantially from those specified in any approved proposals’ as required under cl 9 of the Agreement in order for the provisions of cl 7 and cl 8 of the Agreement to apply.  In response the first respondents say the additional proposal document was both notice of the Joint Venturers’ desire to modify their activities (see cl 2 of the proposal document) and a proposal for the grant of the accommodation lease (see cl 8 in particular of the proposal document) so that cl 9 of the Agreement was satisfied. 

51                  I agree that the proposal document of 21 September 2000 satisfied the requirements of cl 9 of the Agreement.

Whether Agreement Act itself provides a legally enforceable right

52                  The first respondents submit that s 228(3)(b)(i) of the NT Act is satisfied because the accommodation lease was granted in exercise of the legally enforceable right under cl 19 of the Agreement and that legally enforceable right was created by the making of the Agreement Act before 1 July 1993.  Thus, it is said, that a legally enforceable right can be ‘created by’ the making of legislation before 1 July 1993 even if the existence of the right is contingent upon a further event at a later date. 

53                  For a legally enforceable right to be of the type falling within s 228(3)(b)(i) it must be one ‘created by the making, amendment or repeal of legislation before 1 July 1993’ or ‘by any other act done before 1 January 1994’.  The conclusion of the Agreement on 27 November 1979 was an act falling within the second of those categories.  It was the Agreement which created the legally enforceable right. 

54                  The enactment of the Agreement Act in 1979 falls into the first of those categories.  But is it the case that the legally enforceable right was ‘created’ by the Agreement Act?  That Act ‘ratified’ the Agreement.  The effect of ratification has not been argued.  The evidence shows that in its terms it authorised the implementation of the Agreement and provided that ‘all the provisions of the Agreement shall operate and take effect notwithstanding any other Act or law’.  It follows that if the legally enforceable right was impeded by any other Act or law, it would operate and take effect notwithstanding.  However, ‘creation’ involves the bringing of the right into being:  cf The Macquarie Dictionary, 2^nd edn, 1991 at p 418.  On what is before me in the evidence I cannot find that the Agreement Act itself created the right in question.  I reach that view leaving open for future argument on the same issue whether the legal effect of ratification in the terms provided in the Agreement Act would lead to a different conclusion.  All that can be concluded on what is presently available is that the first respondent’s argument in that regard has not been made out here.

Whether accommodation lease follows from offer, commitment, arrangement or undertaking

55                  For the first respondents it is submitted that the act of granting the accommodation lease also falls within the terms of s 228(3)(b)(ii) of the NT Act.  It is said the act was done in good faith in giving effect to, or was otherwise because of, the Agreement Act.  That Act is said to have been made in good faith before 1 July 1993.  There is written evidence of that Act.  Finally, it is submitted, the Agreement Act is an offer, commitment, arrangement or undertaking to grant the Joint Venturers through the eleventh respondents a tenure required for the North West Shelf Gas Project. 

56                  Against this the first applicants contend that the Agreement Act is not an ‘offer, commitment, arrangement or undertaking’ to grant the eleventh respondents the accommodation lease.  It is said it is neither an offer nor a commitment.  So far as ‘arrangement’ is concerned, it is said, to grant the lease also needs to be interpreted in the light of the other words and requires some form of commitment, even if not legally binding in itself, to grant a particular lease.  Where the potential grantor is able to dictate the amount of rent payable or size of premises or location of the premises, it is said that the position is too vague and discretionary to amount to even a morally binding obligation or commitment let alone one falling within the foregoing words.  I have already rejected this latter characterisation above.

57                  The eleventh respondents submit that the words ‘offer, commitment, arrangement or undertaking’ are of very broad import and have relevant usage in other statutes.  Reliance is placed in particular on the words ‘arrangement or understanding’ in s 45 of the Trade Practices Act 1974 (Cth).  Dicta cited appear in Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (1999) 92 FCR 375 at 408, at [141]; Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 5 FCR 140 at 143-144; Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 26 ALR 609 at 628 - 629; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at 359-360, at [75].

58                  I accept that the words ‘offer, commitment, arrangement or undertaking’ are words of wide import.  However, I do not consider they can be interpreted in their context to extend to the Agreement Act.  That is because subpar (i) of s 228(3)(b) addresses rights resulting from legislation and other acts.  Subparagraph (ii) is therefore left to address the remainder, namely offers, commitment, arrangements and undertakings.  These must necessarily be something different to what is dealt with in the former paragraph.  In my view it does not assist the respondents here.  Accordingly I do not express an opinion on the submission of the first respondents that the words used in s 228(3)(b)(ii) encompass a justified expectation.

whether accommodation lease is a commercial lease

59                  Section 246 contains in subs (2) the following examples of a commercial lease:

‘(2)      For the purposes of subsection (1):

(a)          construction on land of a building to be used for business or commercial purposes, or of a hotel, motel or tourist resort, is an example of use of the land for business or commercial purposes; and

(b)          use of a building on land for business or commercial purposes, or operation of a hotel, motel or tourist resort on land, is an example of use of the land for business or commercial purposes.’

60                  As appears from these examples, a lease will be a commercial lease when it permits the lessee to use the land solely or primarily for business or commercial purposes.  The words ‘business’ and ‘commercial’, like the examples given in subs (2), speak to the conduct of commerce for profit:  The Macquarie Dictionary at p 245 and p 362.  Here the purpose of the proposal and of the grant of the accommodation lease is to accommodate an expanded construction workforce.  While such accommodation is undoubtedly part of the wider commercial purpose of the eleventh respondents, that does not mean that it is by the accommodation lease permitted to use the land the subject of that lease for business or commercial purposes.  There is a marked contrast between the examples given in subs (2) and the purpose of the accommodation lease.  Accommodation of a workforce incidental to achievement of a wider commercial purpose is distinguishable from the operation of a place of accommodation on commercial terms for gain.  In my opinion the accommodation lease is not a commercial lease within the meaning of s 246.

whether accommodation lease a future act

61                  It is common ground that if the grant of the accommodation lease is not a past act (which I consider it is) it would be a future act:  NT Act s 233.  The first respondents do not dispute that:

(a)               native title was not extinguished over the area of the accommodation lease prior to the grant of the lease;

(b)               in particular, there was not a taking of native title prior to the grant of the accommodation lease;

(c)               if the grant of the accommodation lease is not a category A past act or a ‘pre‑existing rights based act’ under s 24IB of the NT Act, it is invalid to the extent it affects native title:  s 24OA;

(d)               there was no notification to the applicants of the grant of the accommodation lease, or opportunity for the applicants to comment, under s 24ID(3).

However, the first respondents contend that s 24IB applies to the lease and the lease is valid. 

62                  The first applicants contend that if s 24IB does not apply to the lease, it cannot extinguish native title and cannot be included in the list of extinguishing tenures.  With respect to the admitted non-compliance with s 24ID(3), it is said this would not invalidate the grant:  Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) at par 11.26; and by analogy Lardil Peoples v Queensland (1995) 95 FCR 14 at [30]; Lardil Peoples v Queensland (2001) 108 FCR 453 at [52], [58], [62], [72], [117]-[120].

63                  Section 24ID(3) requires a person proposing to do a future act to notify Aboriginal bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act and give them an opportunity to comment:  cf Harris v Great Barrier Reef Marine Park Authority (2000) 98 FCR 60 at [50].  In Lardil at first instance Cooper J, in obiter dicta, expressed the view that the effect of failure to follow the procedural steps in s 24HA(7) (in practically identical terms to s 24ID(3)) and/or s 24NA(8) was to be understood against the legislative intention as determined from the objects of the NT Act, the context, and the provisions of Div 3.  His Honour held that a failure to comply with the procedural steps would not mean that the acts were invalid under the NT Act.  On appeal in Lardil it was similarly held that the failure to provide notification in accordance with s 24HA(7) did not affect the validity of the future act in question:  French J at [52] and [58]; Merkel J at [72]; and Dowsett J at [117]-[120].  Again these were persuasive rather than binding dicta.  However, I agree with the submission made particularly by the eleventh respondent that there is no reason to depart from such persuasive authority which is not clearly incorrect.  I therefore agree that the accommodation lease could not be found to be invalid as a consequence of non-compliance with s 24ID(3).  The same reasoning would have to be applied to any other similar allegations of failures of notification.

64                  Section 24IB is in the same terms as s 228(3)(b) except that its operation extends to circumstances existing up to 23 December 1996.  If the grant of the lease was not a past act, s 24IB would apply as a consequence of the reasoning above concerning s 228(3)(b)(i).

SUMMARY OF POSITION ON LEASE

65                  For the above reasons I find that the act of grant of the accommodation lease is a past act as a consequence of the application of s 228(3)(b)(i).

66                  I do not consider that it is a past act as a consequence of the application of either s 228(3)(b)(ii) or s 229(3)(a).

67                  In the event that the act of grant of that lease was found not to be a past act as a consequence of the application of s 228(3)(b)(i), I find that it would be a future act to which s 24IB applies.

68                  I therefore find that the grant of the accommodation lease, being a past act, wholly extinguished native title rights and interests in the area of the lease.

Associate:

Dated:              29 October 2004