FEDERAL COURT OF AUSTRALIA

Graham on behalf of the Ngadju People v State of Western Australia

[2014] FCA 516

THE COURT ORDERS THAT:

1.    Subject to order 2, the native title holders bring forward a minute of proposed determination in relation to which the Court will hear from the parties in due course.

2.    Liberty to apply is reserved, within 21 days of the date of the publication of this order, for any party to make further brief written submissions in accordance with paragraphs 120 and 121 of these reasons.

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

REASONS FOR JUDGMENT

Introduction

1    At first instance and on appeal, this Court has recognised that the Ngadju people hold native title in what has been described as “the Ngadju trial area proceeding”; see Graham v Western Australia [2012] FCA 1455 and Western Australia v Graham [2013] FCAFC 143, (2013) 305 ALR 452. These reasons for judgment deal with the remaining issue in this proceeding. That issue is the extent to which Ngadju native title rights and interests have been extinguished. Resolution of that issue requires identification of property rights and interests which are alleged to have the effect of extinguishing native title and their comparison with native title rights and interests to determine whether any relevant inconsistency exists.

2    The Ngadju native title rights and interests, as found in the primary judgment in Graham are set out in the reasons of the Full Court in Graham at [3]:

(i)    the right to hunt and fish (excluding commercial fishing), to gather and use the natural resources of the area, such as food and medicinal plants and trees, timber and ochre and to have access to and use of potable water;

(ii)    the right to live, to camp, to erect shelters and other structures and to travel over and visit;

(iii)    the right to do the following activities:

•    engage in cultural activities;

•    conduct rituals or ceremonies;

•    hold meetings; and

•    teach the physical and spiritual attributes of places and areas of importance on or in the land and waters;

(iv)    the right to have access to, maintain and protect, places and areas of importance on or in the land and waters, including Dreaming sites, waterholes and ceremony grounds;

(v)    the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters.

3    The Ngadju people and the State have reached agreement on a range of matters relevant to extinguishment. They have also identified the issues which remain in dispute. Attached to these reasons for judgment and marked “Annexure A” is a document (modified from the original) setting out the issues which are in dispute and those matters which are agreed.

4    The main area of controversy between the Ngadju people on the one hand, and the State and mining interests on the other, is whether mineral leases issued by the State prior to 1968 under the Mining Act 1904 (WA) (“the 1904 Act”) are inconsistent with the native title rights and interests otherwise held by the Ngadju people and recognised by the Native Title Act 1993 (Cth) (“the NTA”).

Mineral leases granted by the State under the 1904 Act prior to 1968

5    Schedule 1, Table 10 to the State’s initial written submissions on extinguishment identifies 288 mineral leases. Some of the current mining operations in the Ngadju trial claim area are subject to mineral leases granted prior to 1968. They include ML1500150 and ML1500151.

6    Some leases granted under the 1904 Act, including those identified above, have continued to operate notwithstanding the repeal of the 1904 Act. Such leases have been preserved by the operation of s 5(1) of the Mining Act 1978 (WA) (“the 1978 Act)”. That legislation came into operation in 1982. It left undisturbed rights and liabilities held under leases which were subject to what was referred to in the proceeding as “the WMC State Agreement”, concerning the development of nickel mining and the mining of associated minerals. Schedule 2 to the 1978 Act made a transitional provision with respect to leases obtained under the 1904 Act. It deemed them to be mining leases under the 1978 Act.

7    The State and the mining companies (St Ives Gold Mining Pty Ltd and BHP Billiton Nickel West Pty Ltd) recognise that the judgment of the High Court in Western Australia v Brown [2014] HCA 8, presents them with difficulties in maintaining their initial submissions that all relevant mining and mineral leases in the claim area extinguish native title. Instead they now fasten on the difference between the leases considered in Brown and those granted prior to 1968. For reasons which follow it is a distinction without relevant difference.

The mineral leases granted by the State under the Mining Act 1904 prior to 1968

8    The mineral leases granted by the State under the 1904 Act will only extinguish native title rights and interests if they give the leaseholders rights which are inconsistent with those native title rights and interests. Having identified the relevant native title rights and interests by reference to the order of the Court made at first instance on 21 December 2012, it is crucial to now consider the content of the rights granted under the relevant mineral leases.

9    At [243] of its primary written submissions on extinguishment, the State referred to the judgment of the Full Court of this Court in Brown v Western Australia [2012] FCAFC 154. There the State said:

Given that the mineral leases in question in [Brown] were similar to the ordinary mineral leases under the Mining Act 1904 (but in fact conferred additional rights upon the lessee) and given the outcome of Brown, then this Court is presently bound to determine that the mineral leases granted in respect of land in the claim area have also extinguished only the native title right to control access to the relevant land and have not extinguished any other native title rights.

10    The submissions noted that a judgment of the High Court in Western Australia v Brown was pending. That judgment has now been delivered; see Western Australia v Brown [2014] HCA 8, (2014) 306 ALR 168. The effect of the reasoning of the High Court in Brown is that the relevant mineral leases are relevantly indistinguishable from those under current consideration and did not extinguish native title rights and interests but had the effect that those rights and interests could not be exercised for as long as the leaseholders held rights under the mineral leases. Accordingly, as here, “(t)he rights granted under the mineral leases are not inconsistent with the claimed native title rights and interests”. The native title rights are not extinguished by the mining activity, but merely remain incapable of exercise in the areas of that activity whilst it continues.

11    The mineral leases the subject of current discussion were of a type referred to in Brown at [5], where the High Court said of the applicable form of lease in that matter:

The form of mineral lease provided by the State Agreement was generally similar to the form of the mineral lease then provided by the Mining Act 1904 (WA).

12    The mineral leases the subject of the current matter did not give the leaseholder “a right to exclude any and everyone from the land for any reason or no reason”.

13    Counsel for the State and the mining companies refer to the right of leaseholders under the 1904 Act to exclude others from trespass.

14    Any right to exclude “others” from the area of the mining operation and the accompanying legislative provisions which deem such persons to be trespassers do not affect the position that when the mining interests cease to exercise their rights to mine or when those rights come to an end, Ngadju native title rights will remain unaffected; see Western Australia v Brown at [64].

15    The reasoning of the High Court in Brown is consistent with that of Barker J in the Full Court; see Brown v Western Australia (2012) 208 FCR 505 at [464] where his Honour said:

There is no general doctrine of operational inconsistency that leads to extinguishment, in whole in or in part, of native title rights and interests where they intersect with the exercise of statutory rights which do not themselves necessarily extinguish native title. Where there is no actual conflict of rights, for example because the native title right has not been exercised to produce actual conflict, why should the question of inconsistency or extinguishment arise at all? In my view, it does not. The most that can be said is what was said at [150] in Ward in the joint judgment, that in some circumstances statutory rights may be “incapable of identification in law without the performance of a further act or the taking of some further step beyond that otherwise said to constitute the grant”, and that may well need to be regarded in identifying the rights created by statute said to be inconsistent with a native title right or interest. However the issue may be considered to be an exceptional one.

16    Simply because there may have existed a right to remove a Ngadju person from a mine site if such person sought to exercise native title rights on such mine site does not mean, in accordance with the above reasoning, that native title is thereby extinguished. The same contention also runs contrary to the High Court’s requirement of the identification of inconsistency.

17    There was much discussion in oral and written submissions about whether certain leases were “bespoke”, as in “tailor made”. There is little doubt that the pre 1968 leases under the 1904 Act had that character. They were designed specifically for the exploitation of nickel and related minerals. They did not give general rights to exploit a particular area. However, after the High Court’s judgment in Brown, arguments about differences between bespoke or other leases appear to be sterile ones. The important question is to identify the rights obtained under the leases and see if the rights granted under them are inconsistent with native title rights and interests. There is no distinguishing characteristic of the leases still subject to dispute in this proceeding, which reveals that any rights granted under them are inconsistent with native title rights and interests held by the Ngadju people

18    Counsel for the mining companies placed particular emphasis on the submission that the mining leases granted under the 1904 Act were within cl 2 of the Second Schedule to the 1978 Act. The Second Schedule to the 1978 Act makes transitional provisions with respect to the 1904 Act. Clause 2 of the Second Schedule deems mineral leases granted under the 1904 Act to be mining leases under the 1978 Act. It does not advance the argument for extinguishment of native title held over the area of such leases beyond that advanced by the State. The Second Schedule dealt only with transitional arrangements.

19    I accept the submissions of counsel for the State who contended that the correct analysis is that in 1982, by virtue of the 1978 Act, the rights and interests of the holders of mineral leases under 1904 Act continued as if the 1978 Act had not come into force. However, for reasons earlier advanced the rights and interests created by these leases did not extinguish native title.

Freehold estates

20    The State and the Ngadju people have reached agreement that one freehold estate, previously the matter of disagreement, extinguishes native title. That estate is CT 2683/901. The extinguishment arises from an earlier grant of Lot No 699 which overlaps with CT 2683/901.

Special leases – generally

21    The State and the Ngadju people agree that valid special leases evidenced by a formal lease instrument being produced extinguish native title. There is disagreement about the validity of special leases where no formal lease instrument is produced. The Ngadju people also object to the Court’s late receipt of some evidence sought to be tendered by the State regarding particular special leases.

22    The Ngadju people submit that special leases issued by s 116 of the Land Act 1933 (WA) and s 152 of the Land Act 1898 (WA) are not valid, and therefore do not extinguish, native title where no formal lease instrument has been issued concerning a particular lease.

23    The State submits to the contrary and refers to the practice adopted by the State bureaucracy not to issue a formal lease document, prior to 1984, unless one was requested.

24     In Banjima People v Western Australia (No 2) [2013] FCA 868, (2014) 305 ALR 1 at [871] to [876], Barker J dealt with the question whether there was a requirement for any of the special leases in that matter to be the subject of a formal lease. His Honour held that a formal lease was required. The State sought to distinguish Banjima on the basis that Barker J did not refer to a schedule to relevant legislation which provided a form for an application for a special lease. That fact that a form is provided can have no bearing on whether or not as a matter of fact any particular form was “signed and sealed”. The attempt to distinguish Banjima on this point is unpersuasive. In any event, Banjima is a recent judgment of this Court which is directly on point on this issue. I am bound to follow it unless I am convinced it is clearly wrong. I am not so convinced. On the contrary, I find it persuasive.

Particular special leases

(i)    Special Lease A0282/152

25    The State and the Ngadju people disagree as to whether this special lease extinguishes native title. Material before the Court shows that an application was made under s 152 of the Land Act 1898 (WA). The application was received on 13 June 1900. It was approved by the Governor on 11 September 1900. In or about 12 September 1900, rent was paid to 30 June 1901. The application form for the lease was completed and executed by order of the Minister for Lands but there is no entry on the form in the section where provision is made for the date of signing and issuing of the lease.

26    The State described the above inadequacies as “administrative oversight”. It contended that the presumption of regularity should apply. This submission is at odds with the judgment of Barker J in Banjima referred to at [24] above. A failure to execute a lease in accordance with the provisions of ss 12 and 13 of the Land Act 1898 (WA) will invalidate any purported grant of a special lease.

(ii)    Special Lease A 350/152

27    The circumstances relating to this purported special lease are not materially distinguishable from those relevant to A 0282/152. The application form provides for the inclusion of the date upon which the lease was signed and issued. Those fields are blank. Banjima also applies to render this special lease invalid. It does not extinguish native title.

(iii)    Special Lease R 812/152

28    The application form in respect of this special lease has a column headed “Lease Issued Date”. It is blank. This special lease is relevantly indistinguishable from special lease A 350/152, on account on Banjima.

(iv)    Special Lease R 814/152

29    This special lease is in the same category as R 812/152.

(v)    Special Lease A 1694/152

30    The State and the Ngadju people agree that the validity of this tenure does not need to be determined given that there is a prior extinguishing act over the whole area.

(vi)    Special Lease A 1720/152

31    This special lease was not properly executed (or at least there is no evidence of it being properly executed). In accordance with Banjima it does not extinguish native title. Again, there is no record of a lease date.

(vii)    Special Lease A 1733/152

32    This special lease is in a relevantly indistinguishable position from lease A 1720/152.

(viii)    Special Lease A 1804/152

33    This special lease is in a relevantly indistinguishable position from lease A 1733/151.

(ix)    Special Lease 3116/451

34    This special lease is in a relevantly indistinguishable position from special lease A 1804/152.

(x)    Special Lease 3116/516

35    This special lease is in a relatively indistinguishable position from lease 3116/451.

(xi)    Special Lease 3116/01071

36    The State and the Ngadju people agree that this special lease was validly granted and that it extinguishes native title.

(xii)    Special Lease 3116/01940

37    There is no evidence that this special lease was ever issued properly. In accordance with Banjima, it is invalid and does not extinguish native title. The application for it was made under s 116 of the Land Act 1933 (WA). There is no record on the lease document of an issuing date.

(xiii)    Special Lease 3116/02096

38    This special lease is in an identical position to special lease 3116/01940. It does not extinguish native title.

(xiv)    Special Leases 3116/02130, 3116/02782, 3116/03051, 3116/04180, 3116/05283, 332/1711 and 332/2035

39    The State and the Ngadju people agree that the validity of each tenure under this heading does not need to be determined as there is a prior extinguishing act over the whole area.

(xv)    Special Lease 3116/3108

40    The State filed an affidavit sworn by Ms Lealiifano in which she dealt with tenure issues concerning special leases. It does not shed any light on whether this special lease was validly issued. The State has not discharged its onus of proving that this alleged special lease has extinguished native title.

(xvi)    Special Lease 3116/3838

41    Special lease 3116/06724 wholly covers the area of land covered by this special lease. There is no need to resolve any controversy concerning the validity of this special lease given the agreement that special lease 3116/06724 was properly granted as at 29 March 1978 and extinguishes native title.

(xvii)    Special Lease 3116/05192

42    This special lease is referred to in a document contained in a CD which is annexed to the Lealiifano affidavit. Page 17 of 18 of the historical land tenure material refers to 3116/05192 as a special lease, the purpose of which is said to be “collection and manufacture of salt”.

43    A computer disc attached to the Lealiifano affidavit shows a lease with number 5192, with correspondence file No 234-61. There is nothing in any of this material that supports the validity of this special lease. The material reveals that the leases were applied for under s 116 of the Land Act 1933 (WA). It names a lessee and an area but sheds no light on whether the lease was properly issued.

(xviii)    Special Lease 3116/5465

44    The material before the Court concerning special lease 3116/05192 is not relevantly distinguishable from that concerning special lease 3116/05192. The State has not discharged its onus of proving that native title has been extinguished in respect of the area covered by this lease.

(xix)    Special Lease 3116/5474

45    The same observations and conclusions are made in respect of this special lease as those relevant to special lease 3116/5465.

(xx)    Special Lease 3116/2898

46    There is insufficient evidence for the Court to conclude that this lease was ever issued. An extract from the relevant register shows that the “lease issued” field is left blank. Banjima applies to this lease. It does not extinguish native title.

(xxi)    Special Lease 37L/0900

47    The list of agreed and disagreed items in Annexure A lists this special lease as an agreed item. It is not in dispute that this special lease does not extinguish native title.

(xxii)    Special Lease L0482 41A

48    There is no evidence that this lease was issued under the Lands Act 1933 (WA) or any predecessor legislation. It purports to be issued under s 10 of the Land Amendment Act 1905 (WA), which refers to leases over reserves not immediately required for their intended purpose. The face of the document gives no indication that it was intended to be a special lease. This lease does not extinguish native title.

(xxiii)    Additional Special Leases

49    The State filed material in Court on 3 February 2014 concerning additional special leases which it said extinguished native title. The material contained in the Lealiifano affidavit deals with special leases which had previously not been the subject of any dispute between the Ngadju people and the State. The Ngadju people objected to the State being entitled to raise this material so late in the proceeding. Given that the proceeding has taken so long to resolve, I see no particular prejudice in permitting the material to be admitted as it was sought to be adduced, as it turned out, one month prior to final addresses.

50    The additional special leases are as follows: 3116/1369; 3116/1653; 3116/3290; 3116/5762; 3116/7439; 3116/2521; 3116/3030; 3116/3739; 3116/3738; 3116/6724; 3116/3788; and 3116/3684.

a)    General comment

51    Lease 3116/1369 is now said by the State to be the subject of clearer identification as to its validity along with the others listed above based on the Lealiifano affidavit. That affidavit self-evidently does not prove that any of these leases were validly entered into. At paragraph 9, Ms Lealiifano states that the material does not include a copy of any formal lease documents but that the documents “usually include(d) a note on a relevant approval form that a formal paper lease was not to issue unless requested by the lessee”.

b)    Special lease 3116/1369

52    As noted by counsel for the Ngadju people, material attached to documents relevant to this lease shows that it was “not issued”. It does not extinguish native title.

c)    Special Lease 3116/1654

53    The documentation relevant to this lease includes a notation, “file till lease is asked for”. There is no evidence that this particular lease was ever issued.

d)    Special lease 3116/3290

54    The relevant material notes that “approval” is “not required till lease is asked for”. There is no evidence that this particular lease was ever issued.

e)    Special Lease 3116/5762

55    The same notation is found on this lease as on 3116/3290. There is no evidence that this lease was ever issued.

f)    Special Lease 3116/7439

56    The Ngadju people concede that this special lease was validly granted.

(g)    Special Lease 3116/2521

57    The same consideration that applies for 3116/5762 and 3116/3290 applies in respect of this lease. There is no evidence that it was ever issued.

(h)    Special Lease 3116/3030

58    This alleged special lease falls into the same category as 3116/251. There is a notation relevant to it that states “file required until lease is asked for”. “Not required” is written above that notation. This purported special lease does not extinguish native title.

(i)    Special Lease 3116/3739

59    This lease falls into the same category as 3116/251. It does not extinguish native title as there is no evidence it was ever validly issued.

(j)    Special Lease 3116/3738

60    It is not necessary to determine the validity of this lease as another lease covers an area of land covered by that lease. That other lease 3116/06724 is conceded by the Ngadju people to have been granted validly on 29 March 1978.

(k)    Special Lease 3116/6724

61    The Ngadju people agree with the State that this lease has been validly issued and that it extinguishes native title.

(l)    Special Lease 3116/3788

62    This lease is in the same position as lease 3116/251. There is no evidence that it was ever validly issued. It does not extinguish native title.

(m)    Special Lease 3116/3864

63    Identical considerations apply to this lease as apply to 3116/3788. There is no evidence that it was validly issued. It does not extinguish native title.

Roads

(a)    Roads numbered 14-19 and 22-54

64    The State and the Ngadju people agree that the non-extinguishment principle applies to these roads. There is no issue between the parties that these roads do not extinguish native title. They were created subsequent to 24 December 1996 and there is no evidence of prior compulsory acquisition which included those roads.

(b)    Roads numbered 1 and 55

65    The State and the Ngadju people are no longer in dispute about whether these roads extinguish native title. I accept the evidence in the affidavit of Ms Franz, affirmed on 19 November 2013, that in each case there is no road currently in the area of purported roads 1 and 55. In each case, there is a nearby track or road. In the absence of a constructed road native title will not be extinguished.

Gravel pits

66    The State and the Ngadju people disagree about whether certain gravel pits in the claim area are public works and thereby extinguish native title. The State relies on an affidavit sworn by Murray Robinson, the Manager, Legal and Insurances, for Main Roads Western Australia (“MRWA”). MRWA is responsible for building, maintaining and managing the State’s highways and main roads. Mr Robinson states that there are 56 gravel pits in the claim area. There are 33 on or near the Eyre Highway and 23 on or near the Coolgardie-Esperance Highway. The gravel extracted is used for road construction and maintenance.

67    The 56 gravel pits are referred to in Annexure MJR4 to Mr Robinson’s affidavit. That annexure identifies the distance in linear kilometres from the start of the road, their distance from the side of the road, their longitude and latitude and the material contained in the pit, such as quarry rock, gravel or basecourse. Exhibit MJR5 contains copies of photographs of two pits in the Eyre Highway, described as “283SLK” and “445SLK”.

68    The issue whether gravel pits could be described as public works and thereby extinguish native title was considered by Barker J in Banjima at [1459] to [1469]. The evidence presented in the matter appears to be relatively indistinguishable from that provided in this matter. In Banjima at [1465], Barker J said:

I am not satisfied from the evidence above that these gravel pits are of sufficient scale to involve major disturbance to the land and so are not “major earthworks”. There is something a little circular about the definition of “major earthworks”, in that it refers to earthworks whose construction causes “major disturbance to the land…”. Thus, a further judgment has to be made as to whether there is “major disturbance to the land”. No further statutory definition of that expression is required. The word “major” is best defined in this particular context as something prominent or significant in size, amount or degree.

The gravel pits displayed in the photographs in MJR5 do not appear to be significant in size. At paragraph 28 of his affidavit, Mr Robinson, in the context of “gravel pits generally”, referred to the typical size of gravel pits from four to 25 hectares. He did not give any evidence about the size of any specific gravel pit contained in this claim area. I am not satisfied that the State has discharged its onus of proving that the actual gravel pits in the claim area are major public works and thereby extinguish native title.

Water bores

69    The State and the Ngadju disagree about whether water bores constructed by MRWA in the claim area extinguish native title. The water bores are located as close as possible to a proposed road in relation to which they are used in the construction process. Sometimes they are located outside the road reserve. They typically occupy about one square metre of ground but an area of about one hectare is required to access and pump water from the bores. There are seven bores in the claim area. They are listed at Exhibit MJR7 to the Robinson affidavit. Exhibit MJR8 contains photographs of four of the bores. There is nothing in Mr Robinson’s affidavit which justifies the proposition that 10,000 square metres or one hectare is needed to access and pump water from the bores. It is an assertion which prima facie appears unlikely to be correct. The photographs at Exhibit MJR8 certainly do not have the appearance of major earth works. Consistently with Banjima, the Court is of the view that the State has not discharged its onus of proving that the seven water bores have extinguished native title.

Vested reserves

(a)    Scope of the dispute

70    The Ngadju people accept that, in most circumstances, the vesting of reserves, prior to 1 January 1994 and pursuant to s 33 of the Land Act 1933 (WA) wholly extinguishes native title. The remaining areas of disagreement concerns vested reserves where it is contended that:

    the reserves have not been validly vested, or;

    there is insufficient evidence as to valid vesting or;

    vesting is subject to conditions consistent with the continued exercise and enjoyment of native title.

(b)    Reserve 18235

71    The Ngadju people submit that this reserve was not validly vested. They draw attention to the incorrect description of the reserve in the original reservation notice. The error involved a misdescription of the number of acres within the reserve. The State contends that this was a mere typographical error which should not affect the validity of the reservation.

72    In the WA Government Gazette on 13 April 1923, the reserve is stated to be “About 1,090 acres”. This was corrected by the Gazette of 20 April 1923 which cancelled the notice given on 13 April 1923 and substituted it with the 20 April 1923 notice which referred to the correct number of acres, being 1,900 acres.

73    The Ngadju people say that the incorrect description in the original notice invalidates the reserve. The State contends that a notice is not an essential prerequisite to the effectiveness of a reservation. It refers to Neowarra v Western Australia [2003] FCA 1402 at [586]. In Neowarra the relevant Gazettal was not in evidence. The Ngadju people say the current situation is distinguishable because the Gazette was in evidence and was wrong. They point to [566] of Neowarra, where it was held that the presumption of regularity cannot overcome a deficiency in the Gazette. Rather than supporting the position of the State, Neowarra supports the position of the Ngadju people on this issue. The misdescription in Reserve No 18235 means that the reserve was not validly vested. It does not extinguish native title.

(c)    Vested Reserve 3805

74    On 9 January 1976, the purpose of this reserve was changed from “camping” to “recreation”. The Ngadju people contend that the change in purpose invalidated the reserve as a vested reserve because it was originally vested for a different purpose from the new purpose. The land vested in the trustee of it for the purpose of camping. Under the relevant provisions of the Land Act 1933 (WA), the Governor was only able to vest land in a person for a purpose which provided for limitations upon the original use. Use of land for recreation is not a limitation on the use of land for camping, but rather than expanded purpose. This reserve is not validly vested and does not extinguish native title.

(d)     Vested Reserves 8775, 1175, 6043 and 3352

75    The State has not provided any evidence to prove that these reserves were validly vested. It has not discharged its onus of proof to show that these reserves have extinguished native title.

(e)     Vested Reserve 11775

76    This vested reserve is the subject of agreement between the State and the Ngadju people. They are agreed that the reserve was validly vested. However, the Ngadju people observe that there is an extinguishment of their exclusive rights but not all rights.

(f)     Vested Reserve 6043

77    There is only a management order in respect of this reserve. As with the vested Reserve 11775, the Ngadju people note that there is extinguishment of exclusive rights but not all rights.

(g)     Reserve 3552

78    There is no evidence of vesting in relation to this reserve. It does not extinguish native title.

Railways

79    There is agreement that railways in the claim area extinguish native title. The area of dispute concerns the general description of the areas which the State contends is necessary or incidental to the establishment of public works.

80    Although the material on this topic and the accompanying arguments are skeletal the better view of the extent of relevant extinguishment is that contained at [160] to [162] of the “Applicant’s Submissions on Extinguishment”:

The Applicant submits that no extinguishment of native title is effected by the enactment of the Coolgardie-Norseman Railway Act 1906 (WA) [Applicant’s bundle of documents, 001732], the Norseman-Salmon Gums Railway Act 1924 (WA) [Applicant’s bundle of documents, 001736] or the creation of reserves 32416 (for Railway) [Applicant’s bundle of documents, 001752], 38183 (for Railway Purposes) [Applicant’s bundle of documents, 001754] or 39269 (for Railway Purposes) [Applicant’s bundle of documents, 001760] but for, where relevant, the extinguishment of subsisting exclusive rights and interests.

The Acts and the reserves provide a lawful basis for the construction and operation of a railway line, but do not themselves provide for the exclusion of other land users. They do not prevent the exercise of any non-exclusive native title rights and interests in any area of land or water.

The Applicant admits that the actual constructed railway and associated infrastructure, in so far as there is evidence to establish its location, can be determined to be a public work that has wholly extinguished native title rights and interests.

Gold mining leases

81    There is a dispute about these leases. In Banjima at [1574] Barker J found that gold mining leases did not necessary extinguish native title, save for the right to control access. At [1575], Barker J said:

Further, on the approach of Brown FC, I reject the State’s submission that any particular usufructuary or ceremonial rights were extinguished. The rights granted by the mineral leases prevailed over, but did not extinguish, such rights.

82    On the material before the Court in this matter there is no reason to take a different approach to that taken by Barker J in Banjima.

Mineral leases

83    As a consequence of the High Court’s judgment in Brown it is now beyond doubt that mineral leases granted either under the Mineral Lands Act 1892 (WA) or the 1904 Act do not extinguish native title.

Business areas

84    This area of dispute concerns 16 parcels of land which the State submits were granted as “business areas” between 1894 and 1899 pursuant to s 9 of the Mineral Lands Act 1892 (WA). There was also one “business area” which was granted under 1904 Act. In Banjima at [1511] to [1541], Barker J considered this issue as it related to the 1904 Act. His Honour found at [1541] that the registration of business areas did not extinguish all native title. As in Banjima, the correct position is that rights created by business areas under the 1904 Act prevail over but do not extinguish any non-exclusive native title rights and interests.

85    The 16 parcels referred to by the State as having been granted as “business areas” were not granted as “business areas” but as “business licences”. In this regard I accept the submissions of the Ngadju people at [201] of the Applicant’s Submissions on Extinguishment as stating the correct legal position.

86    At [201], the following is said:

Section 9 of the Mineral Lands Act and the regulations provide that a business license be granted in the manner prescribed by the legislation for the purpose of a residence and carrying on a business and to put up a building or other erection and to remove it. Property in land held under the license was a ‘chattel interest’ and a person was not entitled to occupy one business license area at the same time as another. In the same way that the Mining Act 1904 grants prevailed over but do not extinguish any non-exclusive native title rights and interests, so does the provisions of business license areas under s 9 of the Mineral Lands Act. It is submitted that, in the same way that the Mining Act 1904 business area grants prevailed over but did not extinguish any non-exclusive native title rights and interests, so too the grant of business licence areas under s 9 of the Mineral Lands Act did not extinguish non-exclusive native title rights and interests. It is submitted that business licenses under the Mineral Lands Act are even more ephemeral than ‘business areas’ under the Mining Act 1904.

Garden areas

87    There is a dispute about whether garden areas granted under the 1904 Act extinguish native title. Justice Barker considered this question in Banjima at [1546] to [1557]. Consistently with the views expressed by Barker J at [1551], I also consider that the registration of each garden area did not extinguish native title rights but prevailed over them.

Miners’ homesteads

88    There is no reason not to apply the reasoning of Barker J in Banjima where his Honour found that miners homestead leases do not extinguish any non-exclusive native title rights and interests.

89    His Honour’s reasoning is more recent, considered and comprehensive when compared with the contrary view expressed by Nicholson J in 2003 in Daniel v Western Australia [2003] FCA 666. Consistently with the views of Barker J in Banjima, I find that the miners’ homestead leases do not extinguish native title rights and interests save for the right to control access.

Tailing areas

90    I also apply the reasoning of Barker J in Banjima to the disputed issue whether tailing areas extinguish native title. The tailing areas referred to at Schedule 1, Table 12 of the State’s extinguishment submissions do not extinguish native title except in relation to the right to control access; see Banjima at [1597] to [1603].

Conditional purchase leases

91    There is insufficient evidence before the Court as to the existence of these leases so as to enable a view to be properly formed as to their extinguishing effect if any. The relevant leases referred to by the State do not show, as the Land Act 1898 (WA) required, that the application for them was approved by the relevant Minister or that a lease was issued in the prescribed form. The alleged conditional purchase leases do not extinguish native title.

Homestead farm leases

92    There is insufficient evidence before the Court to show that any homestead farm leases in the claim area were ever issued or properly issued. The requirements of ss 75, 76 and 78 of the Land Act 1898 (WA) have not, on the evidence before the Court, been met.

Pre-Racial Discrimination Act mining tenements

(a)    Validity of tenements, “subject to survey”

93    Some historical mining tenements were granted “subject to survey”. Such condition precedent to the grant of those tenements is recorded in the Gazette. There is no evidence with respect to such tenements that the condition precedent was ever fulfilled. There is no evidence of the undertakings of a survey with respect to such mining tenements. In all such respects, those tenements are not valid and do not extinguish native title rights and interests.

(b)    Was M15/710 a validly granted past act or an intermediate period act?

94    This mining tenement is unsurveyed. Its boundary is uncertain because it may be varied following a survey. In the absence of a map after such a survey it is not possible to state whether this tenement was validly created. The State has not discharged its onus of providing sufficient material to demonstrate that this mining tenement has validly extinguished native title.

A dredging lease

95    The Ngadju people and the State disagree about the rights which may be extinguished by dredging leases. Consistent with the judgment of Barker J in Banjima at [1971] to [1974], I find that the one dredging lease in issue in this claim area did not extinguish native title, apart from any subsisting right to control access.

General purpose leases

96    The parties are agreed that general purpose leases extinguish native title. The Ngadju people say that G15/17 and G63/4 are invalid “Ward Policy” leases. This submission is correct. There are no future act agreements for those leases. They do not extinguish native title.

Exploration licences

97    The parties are now agreed that exploration licences have no extinguishing effect.

Prospecting areas and prospecting licences

98    No extinguishing effect is now alleged by the State in relation to these matters.

Machinery areas

99    In accordance with the reasoning of Barker J in Banjima, I find that the machinery areas did not effect any relevant extinguishment but for the right to control access.

Mineral claims under the Mining Regulations 1925 (WA)

100    Claims of this sort were considered by Barker J in Banjima at [1552] to [1560]. I apply his Honour’s reasoning in finding that they did not extinguish native title rights other than exclusivity rights.

Quarrying areas

101    By reason of the directly relevant reasoning of Barker J in the context of business areas at [1511] to [1541] in Banjima, the Court finds that the quarrying areas under the 1904 Act did not extinguish native title other than the right to control access. Each of the business areas and quarry areas involve the possession of land under reg 84 of the Mining Regulations 1925 (WA).

12 mining leases granted between 1 January 1994 and 23 December 1996

102    The State and the Ngadju people agree that:

    four of these leases are valid; and

    there is insufficient evidence about the validity of eight others.

103    The first four extinguish native title, the other eight do not.

Petroleum leases

104    Petroleum tenements cover the entire claim area. The State no longer presses its former submission that any right of the Minister (in the absence of any grant of a lease) was sufficient to extinguish exclusivity or the right to control access.

105    Issues concerning the validity of seven particular petroleum leases are not required to be determined due to other petroleum grants covering the claim area.

Forests

106    The Ngadju people acknowledge that State legislation dealing with the cutting of timber and the control of its use applies to them but submit that it does not relevantly extinguish native title. I accept that submission. The particular legislative regime regulates the use of timber within the claim area and, in exercising their native title rights, the Ngadju people must observe it. So much provides a qualification on their native title rights rather than their inapplicability.

107    In the above regard the Court adopts by way of analogy, the reasoning of French CJ and Crennan J in Akiba v Commonwealth [2013] HCA 33, (2013) 300 ALR 1 at [22] where their Honours said:

His Honour treated the exercise for commercial purposes of the group right to take resources in the native title areas as though it were the exercise of a right to take marine resources for commercial purposes. That equivalence attracted the application of principles governing the extinguishment of native title. On that basis, the question of construction, as his Honour posed it, was whether successive Queensland and Commonwealth legislative regimes had disclosed a clear and plain intention to extinguish that right. His Honour held that they had not:

the legislative regimes of the State since 1877, and of the Commonwealth since 1952, concerning fisheries did not, and do not, severally or together evince a clear and plain intention to extinguish native title rights to take fish for commercial purposes. To the extent that those legislative regimes regulate the manner in which, and the conditions subject to which, commercial fishing can be conducted in a fishery in the native title holders' marine estate, or prohibits qualifiedly or absolutely particular activities in relation to commercial fishing in the fishery in that estate: cf s 211 of the NT Act; the native title holders must, in enjoying their native title rights, observe the law of the land. This is their obligations as Australian citizens. But complying with those regimes provides them with the opportunity — qualified it may be — to exercise their native title rights.

See also Karpany v Dietman [2013] HCA 47, (2013) 303 ALR 216 at [22].

108    The State also raises an issue about the prohibition on the lighting of fires contained in s 46 of the Forests Act 1918 (WA) affects any native title to do so. The section does not affect native title holders other than to prevent them, as well as the rest of the community from lighting fires where “any forest produce is burnt or injured, or is in danger of being burnt or injured”.

Easement

109    The parties agree that easement EASMT 1 extinguishes exclusivity of native title rights and that the non-extinguishment principle applies to EASMT 2-4.

Temporary reserves

110    Temporary reserves are listed at Schedule 2, Table 12 of the State’s extinguishment submissions. In Banjima at [1896] to [1904], Barker J dealt with temporary reserves and held that only those temporary reserves established under the 1904 Act and not others extinguish native title rights. I see no reason not to follow his Honour’s reasoning there set out. I do so.

Water rights

111    The State and the Ngadju people agree that the relevant water rights in the claim area extinguish “any right of exclusive possession to water” (see Annexure A).

Miscellaneous licences

112    The State submits that the right to access areas the subject of miscellaneous licences in order to conduct ceremonies, camp, cook and light fires is extinguished. The Ngadju people submit to the contrary. The correct legal position, in accordance with Banjima, is that all of the miscellaneous licences were validly granted but that none resulted in the extinguishment of native title. See Banjima at [961] and [1931] to [1938].

Reserves (unvested)

113    It is unnecessary to resolve this issue having regard to the resolution of the petroleum tenements issue and the finding that petroleum tenements cover the entire claim area.

Pastoral leases

114    The extinguishing effect of pastoral leases need not be determined due to other petroleum tenements covering the claim area in circumstances where both types of grants do no more than affect exclusive rights.

Public works

115    The State contends that a general description of areas necessary or incidental to the establishment and operation of public works should be included in any final determination. There seems to be no obvious reason why this is necessary. I am not satisfied that any such general description would do any more than create confusion.

Issues under s 47A of the NTA

116    There are no outstanding issues requiring resolution by the Court under s 47A of the NTA.

Unallocated Crown Land and s 47B of the NTA

117    The State contends that there is a lack of evidence about the occupation by the Ngadju people of the area in the claim area which is to the west of Peak Charter and south of Lake Hope (“the south west corner”).

118    Section 47B(b) of the NTA provides:

This section applies if:

 (b)  when the application is made, the area is not:

        (i)  covered by a freehold estate or a lease; or

        (ii)  covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters the area is to be used for public purposes or for a particular purpose; or

         (iii)  subject to a resumption process (see paragraph (5)(b))...

119    The State’s contentions concerned the absence of evidence about the occupation by the Ngadju people of the south west corner are rejected. In that regard the Court refers to, and relies upon, the evidence of Aaron Rule, James Schultz, Rule Wicker, Valma Schultz and Danny Graham. That evidence is summarised accurately at [265] to [269] of the Applicant’s reply submissions.

Aaron Rule gave evidence he was taught about Ngadju boundaries by older generations. When driving through country his family would pull over to the side of the road and tell him where Ngadju country ended. Also, when he was living in Perth and travelling to Norseman, he would go with his Uncle Kevin and they would travel on the Norseman-Hyden Road. His uncle would point out when they were entering Marlpa country from that road. He was told that an indicator was vegetation including the pugarn tree. Those trees exist all around Marlpa country but are thicker near Norseman. Mr Rule stated that a change happens around the Lake Johnston area from the westerly direction.

James Schultz gave evidence that he takes his children all over Ngadju country including the Lake Johnston area and he was doing so at the time the claim was made. Mr Schultz gave evidence that there is a story for around Peak Charles and the nearby plains that he heard from Aunty Maureen Young. In the story, crows and eagles had once been close, like brothers and they both were pure white. One day, one of the eagles went down to their fire and got firesticks. Then two of them circled in opposite directions with their firesticks over the plain. They lit the plain on fire. A big wind blew and the bush picked up the flames, so that the whole bush burnt out of control. The crows were still alive in the hot ashes, but their feathers got burnt black and were black as black can be. The eagles were burnt a little too and that is what gave them their colour. The crows worked out that it was the eagles who had caused the fire and they chased after them.

At the time the claim was made Rule Wicker was travelling around Ngadju country to protect it that included the south-west corner and surrounds.

Valma Schultz gave evidence that there is a story about the Ngadju giant goanna and giant snake around Norseman and Peak Charles so that the Ngadju people know which bush to go to if a snake bites them. The goanna and the snake do not get along. This is because the snake always wanted to eat goanna’s eggs and the goanna would always protect them. When the snake would come along, the goanna would fight him to protect his eggs. When he would get bitten by the snake, the goanna would run to the bush (with the purple flowers) and get medicine, which would make the snake poison go away. The goanna would go back and fight the snake again and again until the goanna won the fight. The snake went south after this fight, to Peak Charles, and the goanna went to sleep. He was sleeping under Beacon Hill until he was woken up by the big snake. The snake had followed the hills and started at the Tjintu hills and finished his travels past Peak Charles. The snake stays on the west side which is in the area of the south-west corner in dispute.

Danny Graham gave evidence that he did dogging work for the Agricultural Protection Board for about nine years in total. This time included him attending the south-west area for this purpose around the time the claim was made. The first few years of his job were based in Coolgardie. He then did dogging from Lake Johnston in the west all the way across to the South Australian border. He went up as far north as Menzies and back to Southern Cross. He gave evidence that before and after he lived at Pinjin station in 1996-1999, he would go camping and hunting most weekends in Ngadju country.

The s 47B areas

120    The State and the Ngadju people have a difference of opinion about the precise identity of those areas. The differences have been resolved apart from a difference over whether L63/40 overlaps with UCL/034. The Court is no better placed at the moment to resolve that controversy and liberty to apply is reserved in relation to it. The parties, in particular, the State as a model litigant, should attempt to resolve that matter as quickly as possible in the interests of a speedy resolution of the matter leading to a final determination without undue delay. It should be a matter capable of quick resolution after a meeting between legal representatives of the Ngadju people and the State, with a report back of an agreed position to the Court within 21 days.

Other liberty to apply

121    The issues raised on this extinguishment aspect of the proceeding are many and varied and in many cases only brief assistance has been given to the Court by the parties. Should any party consider that the Court has inadvertently not dealt with any particular issue requiring resolution, liberty to apply will be given to such party to identify such issue and provide further brief written submissions on any such topic within 21 days of the publication of these reasons, bearing in mind that the ambit of the current dispute is framed by Annexure A. However, it should be borne in mind that such liberty is not to be construed as an invitation to re-agitate any matter already dealt with in the reasons, other than that referred to in [120]. It also should not be considered as an opportunity to agitate any new matter which may have been dealt with with due diligence in the proceeding prior to the publication of these reasons.

Associate:

Dated:    21 May 2014

Annexure A